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"Legal perspective influences development in society"
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"Legal perspective influences development in society"

Robert Dabaly JimmaHow a country interprets its laws is critical to the functioning of society, writes Robert Dabaly Jimma, 21, a Correspondent from Kenya, as he looks at how that applies to post-apartheid South Africa.

Law is inseparable from the interests, goals and understanding that deeply shape or compromise the social and economic life of a society.

With transformative constitutionalism, Karl Klare writes of “a long term project of constitutional enactment, interpretation and enforcement committed (not in isolation of course, but in a historical context of conductive political developments) to transform a country’s political, social institutions and power relationships in a democratic participatory and egalitarian direction”.

Although his work mainly concentrated on the power of adjudication, it is clear that this project is not confined to the sphere of adjudication but pertains to any agent involved in the enactment, interpretation and enforcement of the constitution. The inquisitive development of transformative constitutionalism is specifically aimed at altering the institutional character of legislation and separation of powers. Therefore, social institutions should be changed in a democratic, egalitarian participatory direction that underlines the structure and culture in manner that seeks to propel society.

Klare observes the way in which transformative constitutionalism should take place as “a large scale social change” that should be founded through “non-violent political processes grounded in law”. Basically, transformative constitutionalism entails the furthering of initial change and implementing this change. In a similar manner, that refers to transformation not as a means of “reform”, but instead, as different form of “revolution”. Drusilla Cornella, in “Law dress up as justice”, notes that transformative constitutionalism entails “transformation that is radical enough to go beyond mere evolution”.

In the sense that legal culture has the propensity to hinder social change, Klare assumes that dramatic, large scale egalitarian social change is desirable in South Africa (highlights the USA’s dynamic legal culture). Several years since Klare’s article, the question still remains whether social reform is still desirable or if more social development needs to take place.

Klare directs his concerns mainly to judges and identifies adjudication as a locale of law making. He expands his horizon on this matter by highlighting that judges, like all legal scholars, are caught up in the strain between freedom and conservancy. Judges are constrained by their duty to follow the constitutional text and legal precedent aggressively. However, the impossibility of language to dictate clear meaning arises from the open construction of constitutions, as there is no single neutral and objective truth. It can be noted that the constitution is open for interpretation and the generation of different plausible ideals.

Traditional accounts of law and political ones are both considered to be interdependent. Simply, the former is gained through training while the latter is collected from personal backgrounds. The legal culture that a society operates will determine how we appreciate this. Klare describes legal culture as habits of the mind with professional appreciation and ‘intellectual reflexes’ of officers of the courts, lawyers and legal professionals. He further expresses how legal members in a certain culture interpret this culture as a norm without contemplating that it is structured within a certain context.

Klare goes on to break down the manner in which South African legal culture is fairly conservative and not political. He interrogates this by comparing the attributes of American lawyers against those of South African lawyers. Klare identifies that South African lawyers have a ‘relatively strong faith in the precision, determinacy and self-revealingness of words and texts. Legal interpretation in South Africa tends to be more highly structured, technicist, literal and rule bound’ than in the USA.

Klare believes that judges, lawyers and other legal professionals should appreciate their conservative style but be able to challenge it and regard other avenues to solving the matter. He induces this by stating that conservation ‘reduces the transparency of the legal process, thereby undermining its contribution to deepening democratic culture’. Therefore judges and legal professionals must appreciate the democratic culture since jurisprudence conservatism ‘may induce a kind of intellectual caution that discourages appropriate constitutional innovation and leads to less generous or innovative interpretations and applications of the constitution.’

photo credit: Justice Gavel via photopin (license)

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About me: I am a law student with a passion for digesting the law and examining its applicability within African social confines. I like using interpretative tools to investigate various legal paradoxes that exist within our immediate society.

My interest pertains to whether autochthonous constitutions have served their role in the empowerment of Africans after the colonial regime.

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Opinions expressed in this article are those of the author and do not necessarily represent the views of the Commonwealth Youth Programme. Articles are published in a spirit of dialogue, respect and understanding. If you disagree, why not submit a response?

To learn more about becoming a Commonwealth Correspondent please visit: http://www.yourcommonwealth.org/submit-articles/commonwealthcorrespondents/

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