Building the Constitution
The Practice of Constitutional Interpretation in Post-Apartheid South Africa

A revisionary account of the South African Constitutional Court, its working method and the neglected political underpinnings of its success.

James Fowkes (Author)

9781107124097, Cambridge University Press

Hardback, published 15 December 2016

416 pages
23.5 x 15.8 x 2.7 cm, 0.74 kg

'James Fowkes provides a fresh and powerful understanding of the Constitutional Court in South Africa. In this excellent book he argues that the Constitutional Court demonstrates, through its jurisprudence and the context within which the cases play out, that it is a constitution-building court. The book's most powerful arguments for this thesis examine and contest many of the standard interpretations of the Court's jurisprudence, providing us with a very well argued alternative perspective.' Heinz Klug, Evjue-Bascom Professor of Law and Director of the Global Legal Studies Centre, University of Wisconsin Law School

This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.

1. Introduction
2. Taking reality (legally) seriously
3. Voting rights, politics, and trust
4. The role of the Court: standard conceptions
5. The role of the Court: constitution-building
6. LGBTI equality
7. Democracy
8. Socio-economic rights
9. Equality, eviction and engagement.

Subject Areas: Private / Civil law: general works [LNB], Courts & procedure [LNAA], Legal system: general [LNA]