Prof Upendra Baxi writes that ‘[c]onstitutionalism, most generally understood, provides for structures, forms,and apparatuses of governance and modes of legitimation of power’. He goes on to suggest that ‘constitutionalism is not all about governance’, because it also provides ‘for ideas and practices concerning justice, rights, development and individual / associational autonomy’. From this point of view, Baxi rejects what he calls the ‘modern superstition’ that constitutionalism is nothing more than ‘a legacy of colonialism’. (U Baxi ‘Chapter 28: Postcolonial legality’ in H Schwarz and S Ray (eds) A companion to postcolonial studies 540 at 540.)
In a similar vein, Heydenrich has recently argued that the South African Constitution ‘needs to be understood in a way that acknowledges and addresses the legacies of modernity and coloniality taking South Africa constantly and ever changingly forward into a world beyond coloniality’. (PW Heydenrich ‘Constitutionalism and Coloniality: A case of colonialism continued or the best of both worlds’ (2016) New Contree116 at 131).
The enactment of the post-apartheid Constitutions marked the end of a prolonged period of violent confrontation between oppressive colonial, imperial and apartheid governments, on the one hand and, on the other hand, revolutionary forces inspired and driven by the ideal of freedom and human rights for all.As such, the South African Constitutionrepresents a peace treaty, one that has been described as inaugurating an era of ‘transformative constitutionalism’.The transition from apartheid to a post-apartheid legal order has also been described by former Constitutional Court Justice Laurie Ackermann as a ‘legal revolution’.
You are required to write an essay of no more than 2 000 words (including footnotes, excluding the bibliography) in which you focus on the rule of law.
Answer to the above essay:
The rule of law is defined as the political philosophy which states that citizens within the country are accountable to the same laws and principles, and this is applicable to all the lawmakers and leaders. This essay includes a description on the rule of law in terms of liberal conservative post aparthield constitutionalism and also a discussion in terms of transformative post aparthield constitutionalism. The analysis also includes a discussion on the relationship between the rule of law and democratic constitutionalism….
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