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.
Social Democracy and the Limits of Rights Constitutionalism
Can rights constitutionalism operate as a social democratic restraint on private power? How should we assess this? Following renewed interest in social democratic legal theory, some propose developing more egalitarian forms of rights constitutionalism as a counterweight to overweening private power in the global economy. Such strategies follow a normative methodology, associated with liberal accounts of legality which emphasize the autonomy of law as an external means of social change. This can be contrasted with traditional social democratic accounts of law as an artifact produced through and in political struggle. This shift of focus to normative argument is at the expense of contextual diagnosis, which remains valuable in questioning whether constitutional strategies can restrain private power in the name of substantive equality. Rights constitutionalism, reflecting its classical liberal roots, continues to protect private power in important ways.; Two strategies, based in innovations in North American and European constitutionalism respectively, have been proposed to overcome this default. First, the Application to State Institutions (ASI) model seeks to extend the reach of constitutional application to include private actors, and; second the Application to Law (LAW) model seeks to extend the scope of rights by requiring all law to conform to constitutional guarantees, including equality. A sociologically grounded analysis of the comparative jurisprudence shows these models retain key elements of the classical liberal framework, such as the state-civil society distinction, and which have in practice militated against any significant democratization of private power.
The Application of the 1996 Constitution in the Private Sphere
‘Lawyers have pictured law as reason encoded in the doings and dreams of power just as economists have seen actual market economies and their law as approximations to a pure system of rationality a...