Klug, Heinz --- "Constitution making and social transformation" [2019] ELECD 2410; in Landau, David; Lerner, Hanna (eds), "Comparative Constitution Making" (Edward Elgar Publishing, 2019) 47

Book Title: Comparative Constitution Making

Editor(s): Landau, David; Lerner, Hanna

Publisher: Edward Elgar Publishing

Section: Chapter 3

Section Title: Constitution making and social transformation

Author(s): Klug, Heinz

Number of pages: 22

Abstract/Description:

With the end of the Cold War constitution making became the dominant process in both conflict resolution and political change in nations across the globe. This raises an important question. Is constitution-making predominantly a process of design in which the choices made will determine the future of a particular polity or does a constitution-making process merely reflect the consolidation of a process of social transformation that is already underway? To explore this relationship, between social transformation and constitution-making this chapter adopts two strategies. First, it will consider the underlying assumption that constitution-making is an act of rational design. While understanding that the drafting of a constitution serves to design a system of power and governance, the chapter argues that the social context in which these processes proceed overshadow any single conception of rational design. Instead, it suggests there is a continuing relationship between the drafting of a formal constitutional document and the underlying material constitution, reflecting processes of social transformation through path dependency, negotiation, participation and the shaping of constitutional imaginations. Second, the chapter relies upon a close examination of constitution-making in South Africa’s democratic transition to demonstrate these various processes.