There is no Supreme Constitution: A Critique of Statist-Individualist Constitutionalism

Acknowledgements
About the Author
Introduction
Chapter 1 - Constitutionalism
Introduction
The core characteristics of constitutionalism
Normativity – the commitment to justice
Fundamental (higher) law
The consensual basis of the rule of law – customary law-abiding conduct
Limited government; diffusion and balance of power; the idea of the mixed constitution; public office
Chapter 2 - Statist-individualist Constitutionalism
Introduction
Statism – paving the way to statist constitutionalism
The establishment of statist-individualist constitutionalism
The nine essential beliefs of statist-individualist constitutionalism
State-based positive law, more specifically the formulations of the Constitution, is omnipresent
The Constitution is rigid and actually supreme
The Constitution is formulation-driven and has a formal-static character
The supreme value that is placed on the formulations – the written words of the constitutional Document
Pre-political
The trias politica and the independence, impartiality and effectiveness of the judiciary
The preoccupation – fixation – with micro theory (and the statist‑individualist approach to interpretation)
The twosome consortium of the state and the individual – state sovereignty and abstract universal, individual human rights
The state is anti-communitarian and anti-pluralist
Statist-individualist constitutionalism’s three key mechanisms
Supremacy proclamations, entrenchment and conformity mechanisms, andstrict amendment requirements
The trias politica, checks and balances and the independence andimpartiality of the judiciary
Bills of individual rights
Chapter 3 - Statist-individualist Constitutionalism in Post 1994 South Africa
Introduction
The key mechanisms of statist-individualist constitutionalism in the South African constitutional order
Supremacy proclamation, entrenchment and conformity mechanisms and strict amendment requirements
Trias politica, checks and balances and the independence and impartiality of the judiciary
The (justiciable) Bill of Rights
The statist-individualist belief system in the South African constitutional discourse
Chapter 4 - There is no Supreme Constitution
Introduction
Law’s dual dimensionality
Conceptual clarification: legal norms and legal norm-formulations
The basic thesis of the factual requisite (or dimension) of law
The doctrine’s faith-strengthening language
Exposition of the factual requisite of law and critique of the doctrine
Substituting law arising from the behaviour of public office-bearers
Lapsed law resulting from the behaviour of public office-bearers
Substituting or lapsed law arising from the behaviour of(segments of) the public
Still-born law, including still-born constitutional law
Conclusion
Chapter 5 - The Constitution of the Republic of South Africa is not Supreme and its Rights Not Entrenched
Introduction
The actual changes to the South African constitutional dispensation
The centres of governmental power (1) (quasi-federalism)
The centres where governmental power is exercised (2) (Hybrid governmental power)
Cadre deployment and the patronage state
The responsibility for safety and security
The value basis and the official language dispensation in terms of the Constitution
Founding values: (1) (Re)racialilastion substituting non-racialism (and consequences for freedom of expression)
Founding values: (2) Homogenisation and racial representation (representivity)
Founding values: (3) Ubuntu and its uncomfortable co-existence with the rule of law
The substitution of the multilingual official language dispensation
Conclusion
Chapter 6 - The Unity of Powers and the Dependence and Partiality of the Judiciary
Introduction
Criteria for judicial appointments
The falling-out of April 2013
Analysis and critique of the statist-individualist doctrine of judicial independence and impartiality
The judiciary − not so separate and independent from the (rest of) the dominant elite
The judiciary – not so impartial and not purely legally reasoning
The transformationists in the same statist doctrinal trap
Conclusion
Chapter 7 - Constitutional Supremacy and Judicial Impartiality Hermeneutically Viewed
Introduction
Orthodox (deductive) constitutional interpretation
Purposive interpretation
Transformative (transformationist) interpretation (as an ingredient of transformationism)
Homogenous egalitarian society
Transformative interpretation − the transformationist role of the Constitutional Court
Intra dominant elite hiccups and quarrels
Transformationist interpretation in the Constitutional Court
Conclusion
Judicial interpretation of the Constitution
Guaranteed judicial protection of individual rights?
The supremacy of the Constitution
Chapter 8 - Universal Individual Rights
Introduction
The way to the abstract individual and universal human rights
Individual rights without communities
The redundancy argument
The definition (legal subjectivity) argument
Conclusion
Chapter 9 - Beyond Statist-Constitutionalism
Introduction
Autonomous, self-sustained communities; a multitude ofgovernmental centres
A classical constitutional moment: Regnum and Sacerdotium
Althusius’ Politica
Politocracy
Checks and balances
The family
ommerce, industry and the professions
Educational institutions, universities in particular
Formations of civil society
Property
Bibliography
Index