Socio-economic rights, political action, judicial conceptions of democracy and transformation : South Africa and Nigeria
universalism of legal subjects, but in Africa that would apply only in the urban environment; the political parties of liberal democracy do not make sense in societies where associational life is rudimentary and interest groups remain essentially primary groups. 6 There is therefore need to fashion an alternative model of democracy to fit the cultural context and contextual political arrangements of Africans in Africa. It is as a result of this that several African scholars/political theorists have already put forward their views of what the appropriate 1 This position is also supported by Dahl. See R A Dahl On democracy (1998) 9 – 10. 2 C Ake ‘The unique case of African Democracy’ (1993) 69 (2) International Affairs 239 at 243 (Emphasis supplied). 3 A An-Naim ‘Religion, the state and constitutionalism in Islamic and comparative perspectives’ (2008-2009) 57 Drake Law Review 829. 4 Y Mokgoro and S Woolman ‘Where dignity ends and ubuntu begins: An amplification of, as well as an identification of a tension in, Drucilla Cornell’s thoughts’ in S Woolman & D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution (2012) 241 at 242 – 243. 5 To borrow An-Naim phrase. See A An-Naim ‘The legal protection of human rights in Africa: How to do more with less’ in A Sarat and T R Kearns (eds) Human rights: Concepts, contests and contingencies (2001) 89 at 102 – 103. 6 C Ake ‘The unique case of African Democracy’ (1993) 69 (2) International Affairs 239 at 243.
CONSTITUTIONAL INTERPRETATION AND SOCIAL CHANGE: YOU CAN'T ALWAYS GET WHAT YOU WANT (NOR WHAT YOU NEED)
The author argues that the Canadian Charter of Rights and Freedoms is unlikely
to provide an efficacious means for bringing about progressive social change. He notes that the various rights and freedoms articulated in the Charter can be logically interpreted to require a variety of progressive programs, but argues that it is unlikely the courts will give them such content. The reasons for this have to do with the structure of rights discourse, the inaccessibility of the courts to most potential litigants,
and the attitudes and beliefs of judges. According to the author, lawyers and scholars who see a progressive potential in the Charter tend to downplay these factors.
Constitutional law in theory and practice
David Beatty draws on more than twenty years' teaching experience to produce a comprehensive introduction to constitutional law, accessible to students of law and non-specialists alike. He reviews the leading cases that have come before the Privy Council and the Supreme Court of Canada concerning the BNA Act and the Charter of Rights and Freedoms. As well, Beatty reviews important decisions made by courts around the world and analyses the function judges perform in liberal-democratic societies when they enforce written constitutions that include bills of rights. Chapter 1 introduces constitutional law - what it is all about, what its function is, and how it interacts with the constitutional text. The book examines Canadian federalism law and the Supreme Court of Canada's experience with the Charter of Rights. It also looks at significant human rights cases decided by major courts around the world, showing how the same principles and methods of reasoning are used elsewhere to resolve legal disputes. The author concludes that a theory of constitutional law that puts greater emphasis on the social duties politicians must respect than on individual rights should be responsive to the concerns of both those who are sceptical about the virtues of law and the courts and those who fear Western cultural imperialism. Beatty proposes a radically new way of thinking about 'rights' - one that emphasizes the social duties inherent in the very conception of rights. By reorienting our thinking about rights and the rule of law, we can see that democratic decision-making and judicial review, rather than being in conflict with each other, support a common set of values and ideals.