Klare

Question 1

1. Name the five elements of transformative constitutionalism as identified by Klare. (5)

Answer 1

• a post-liberal constitution (the soil)
• the rule of law (the trunk)
• critical adjudication (branch)
• a justiciable Bill of Rights (the branch)
• a progressive legal culture (the leaves)

Question 2

2. Which branch of the law-making processes of democratic societies does Klare focus on
   in his article? (1)

Answer 2

The law-making process of adjudication

Question 3

3. State Klare’s explanation for why the above process qualifies as a ‘law-making
   process’. (3)

Answer 3

Legal texts are inherently not self-explanatory; they always require interpretation by the
reader, who assigns meaning to the text. This means judges, when consulting legal sources,
are never fully limited by the texts themselves since interpretation is always involved.
Through their interpretations, judges create meaning in these texts, setting precedents that
effectively become law, as other courts must follow these specific interpretations. Thus,
adjudication is an area where law is inherently created, as legal practitioners cannot be fully
constrained by their sources and must engage in a degree of interpretation.
In South Africa’s democratic transition, this process is intended to bridge authoritarianism to
a “culture of justification,” in which every exercise of power is expected to be justifiable, as
Mureinik describes.
Adjudication should be the most reflective, reasoned, and justified form of law-making,
heavily structured by text, rule, and principle. This leads to the expectation that
constitutional adjudication will innovate in intellectual and institutional practices that align
with this culture of justification. Judges’ interpretation not only gives meaning to the law but
also requires them to acknowledge the social and distributive consequences of their
interpretive decisions, as adjudication inevitably includes values and sensibilities from
beyond the text.

Question 4

4. Explain in your own words what you understand of Klare’s contention that
   adjudication is characterized by a ‘dialectic’ between freedom and constraint? (4)

Answer 4

Adjudication is neither infinitely flexible nor rigidly fixed; since legal texts are written in
language, they can carry different meanings in different contexts. Klare’s concept of
“freedom” in interpretation includes both interpretive freedom and the constraints imposed
by the legal text itself. Judges may feel an obligation to rule in ways that promote social
justice and equity, but they are still bound by the text and cannot deviate too far from its
stated meaning.
Judges often encounter “the dialectic” of freedom and constraint— a tension between the
grand aspirations of the Constitutional text, with its broad language and ideals of a
democratic society, and the practical limits of adjudication, which cannot be entirely open-
ended. Judges and lawyers cannot interpret based solely on personal visions of freedom.
Because legal texts do not inherently provide meaning, judges must interpret them.
However, this interpretive role does not imply limitless flexibility. Interpretation follows
specific rules, as outlined in the Constitution, and the words in the text have inherent
meanings that cannot be stretched beyond reason. Thus, there exists a dialectic between the
interpretive freedom judges have and the constraints imposed by the language and structure
of the legal text.

Question 5

5. Fill in the missing elements (indicated by ‘…’) in the extended definition of
   transformative constitutionalism:
   ‘By transformative constitutionalism I mean a … project of constitutional enactment,
   … and enforcement, committed (not in … of course, but in a historical context of
   conducive political developments) to transforming a country’s political and social
   institutions and … in a democratic, participatory, and … direction.’ (5)

Answer 5

By transformative constitutionalism I mean a long-term project of constitutional
enactment, interpretation, and enforcement committed (not in isolation, of course, but
in a historical context of conducive political developments) to transforming a country’s
political and social institutions and power relationships in a democratic, participatory,
and egalitarian direction.
A (1) long term project of (2) constitutional enactment, interpretation and enforcement
committed (3) not in isolation but in a historical context of political development (4) to
transforming political and social institutions and (5) power relations through (6) social
and institutional developments in a (7) democratic and participatory and egalitarian
direction

Question 6

State the truncated definition of transformative constitutionalism.

Answer 6

It is an (1) enterprise of inducing a large-scale social change through (2) non-violent
political processes (3) grounded in law. This transformative constitutionalism is (4)
more vast than reform yet something different from (5) revolution.

Question 7

7. Klare states six reasons to justify his contention that the South African Constitution is
   postliberal. Describe these reasons. (6)

Answer 7

Social rights and substantive conception of equality: our constitution takes into
account that political freedom and socio-economic rights/justice are inextricably linked.
The constitution does not merely proclaim that everyone has political freedom but
commits to creating a society in which people actually have the resources to exercise
those rights. Our constitution recognises that there is a difference between substantive
equality and formal equality. – Substantive, over formal justice.
Affirmative state duties: traditional liberal constitutions refrain states from interfering
with people’s rights. Our constitution puts an obligation of positive duties the on state
i.e. progressive real rights.
Horizontality: between two private individuals. If the Common law cannot help you
then constitution can be used through direct horizontal application or can use the
horizontal indirect to application. ie to develop common law and then the common law
will help you. Most liberal constitutions only deal with vertical application of
constitution between state and private individuals. Note: Indirect horizontality doesn’t
work directly with the constitution but changes the common law to allow people access
to private rights. (Indirect, horizontal application – willes - s8(2) .)
Participatory governance: post liberal government is decentralised i.e. national and
provincial. Public participation in drafting of bills. Our constitution envisages a
government that will actively promote and deepen a culture of democracy.
Multiculturalism: our constitution celebrates multiculturalism and diversity and
promotes unity in diversity. It promotes gender equality and rights for vulnerable and
victimised groups in society.
Historical self-consciousness: our constitution is an instrument committed to social
transformation and reconstruction. It seeks to change the inequalities of the past; to transform society from one which is characterised by deep inequalities; to one where all are equal and this equality is achieved substantively with reference to our past.

Question 8

True or false?

Legal materials can mean whatever we want them to mean. (1)

Answer 8

False

Question 9

True or False

Legal constraint is not a product of the interpretative context in which a judge
finds herself. (1)

Answer 9

True

Question 10

True or False

Previous interpretations of legal materials partially constitute these materials but
does not imbue them with value-laden meanings. (1)

Answer 10

False

Question 11

True or False

Legal culture is constituted by professional sensibilities, habits of mind and
intellectual reflexes. (1)

Answer 11

True

Question 12

True or False

Legal culture cannot limit the ambitions and achievements of democratic
transformation. (1)

Answer 12

False

Question 13

True or False

Legal culture shouldn’t limit the ambitions and achievements of democratic
transformation. (1)

Answer 13

True

Question 14

True or False

South African legal interpretation is more ‘policy-orientated and consequentialist’
whereas legal interpretation in the United States is more technicist and literal. (1)

Answer 14

False

Question 15

True or False

According to Klare, South African legal culture is already transformative because
the Constitution is progressive. (2)

Answer 15

False

Question 16

True or False

The right to life in the interim Constitution self-evidently prohibited the imposition of the death penalty. (1)

Answer 16

False

Question 17

9. Why does Klare think that there is an obligation of political self-reflection and candor upon the judiciary when it adjudicates?

Answer 17

• Judges’ political and moral values play an intrinsic role in adjudication as part of the
“inarticulate premise.” Judges routinely make value-based decisions in interpreting
the law, bearing responsibility for the social and distributive impacts that result from
these choices, for which they should be held accountable.
• Legal professionals must, therefore, acknowledge this political and moral
responsibility in adjudication and share it openly with the public to ensure
transparency.
• The legal community should be honest with itself and society about the political
dimensions of adjudication and take responsibility for shaping the social order
through their legal practices.
• Such transparency empowers the public to scrutinize and critique the political and
moral assumptions that often drive adjudication. Where appropriate, political
processes may guide the judiciary in protecting the integrity of democratic
procedures and human rights.
• This approach aligns the judiciary with the Constitution’s democratic principles,
particularly section 41(1)(c), which requires all state organs to ensure transparency,
accountability, and coherence in governance, effectively mandating political self-
reflection and openness within the judiciary.

Question 18

10. Which two distinctions need to be softened to promote critical adjudication?

Answer 18

1. Softening the traditional divide between law and politics: Law and politics are
   deeply interconnected.
   ◦ The conventional clear-cut division between law and politics in adjudication is
   oversimplified. Traditionally, the issue is posed as what the judge should do
   when there’s a noticeable gap or contradiction in the law.
   ◦ However, the real challenge in adjudication theory is the uncertainty around
   whether such a gap exists and whether the legal material’s limiting potential is
   exhausted. A judge’s values and sensibilities inevitably influence
   interpretation, meaning that personal and political perspectives cannot be
   entirely separated from adjudication.
2. Acknowledgment of moral and political responsibility in adjudications:
   Distinguishing between the obligation to stay true to the text and the pursuit of
   justice.
   ◦ Judges face a delicate balance between professional duties and the strategic
   pursuit of justice. Even if political or moral considerations influence the
   decision, a judge cannot rely solely on these to respond to adverse precedent.
   ◦ A judgment represents a compromise between the legal materials and a
   judge’s ideological views, balancing the responsibility to uphold the law with
   the freedom to pursue just outcomes

Question 19

11. According to Klare, what are the three discursive practices that ‘lend themselves to
    the denial of judicial choice and responsibility?’

Answer 19

• One practice is the technique of solemn assertion, where courts claim they merely
declare the law, not create it: “[t]he Court’s order does not invalidate the law; it
merely declares it to be invalid.”
• Another is the repeated assertion that all efforts have been made to exclude
“subjective values” from legal reasoning, although objectivity is impossible since
judges are inevitably influenced by their experiences and values.
• The third is conclusory argumentation, suggesting that the ruling was reached
without interpretation, as if the meaning of the law were entirely self-evident.

Question 20

12. Critique the statement from Brand JA in Potgieter v Potgieter from the perspective
    of transformative constitutionalism, as discussed by Klare.

Answer 20

Klare argues that law and politics are inseparable and that legal texts don’t self-generate
meaning—they require interpretation. Transformative constitutionalism, according to Klare,
includes a justiciable Bill of Rights, politicized rule of law, progressive legal culture, critical
adjudication, and a post-liberal Constitution.
In critical adjudication, four elements are central: legal materials do not self-generate
meaning, the law’s constraint is defined by the judge, the distinction between law and
politics is blurred, and the balance between adhering to the text and aiming for justice is
key.
Brand JA argues that allowing judges free interpretive reign would cause legal uncertainty
and inconsistency since each judge may have different views on fairness and equity.
However, Klare contends that progressive legal culture and critical adjudication are essential
to fulfill constitutional goals. For transformative constitutionalism to thrive, interpretation is
crucial. Judges’ values cannot be excluded from adjudication, as there are always political
elements embedded in judgments, guided by personal convictions.
Brand JA uses history as a warning of the risks of judicial interpretation, while Klare argues
that a post-apartheid, progressive South Africa requires judicial interpretation to reflect
constitutional and rights-based goals, which cannot be entirely limited by text. Klare
believes judges’ personal leanings already influence rulings, and embracing a post-liberal
interpretive approach may enhance justice in a transformative constitutional context