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INTRODUCTION

Historical self-consciousness is the act of critically analyzing the past and comprehending

how it has influenced the present1. Historical self-consciousness is crucial in the context of

transformative constitutionalism because it enables us to comprehend how the

constitutional system has contributed to social and economic inequities and to determine

how the constitution might be amended to alleviate these inequalities 2. This entails looking

at the historical causes of problems like racial oppression, class oppression, gender

oppression, and other types of oppression3, as well as how the constitution and its

interpretation have fueled these injustices. We can identify how the constitutional order

has to be changed to produce a more just and equitable society by exercising historical self-

awareness.

WHAT IS TRANSFORMATIVE CONSTITIONALISM?

A concept in legal and political thought known as "transformative constitutionalism"

4
refers to the belief that a constitution should actively endeavor to transform and improve

society rather than only serving as a framework for governing. 5This can involve utilizing

constitutional protections to advance social and economic rights 6like the right to an

education or a good standard of life, as well as defending and extending the rights of

marginalized or persecuted groups like women and minorities. The strategy, which is

1
Encyclopædia Britannica,6th ed.
2
Black’s Law Dictionary,5th ed.
3
JENNIFER KOLPACOFF DEANE. (n.d.). A History of Medieval Heresy and Inquisition, Second Edition
4
Black’s Law Dictionary
5
Stellenbosch law review, vol. 17, no. 3,1st Jan 2006
6
SA publiekreg, SA public law, Vol. 20, No. 1,2007
considered a more progressive and dynamic method of constitutional interpretation than

conventional models, is generally connected with nations going through periods of fast

change and democratic transition.7

1.0 ROLE OF THE ARGUMENTATIVE CLAIM

It is crucial for a society to carefully weigh the potential benefits and drawbacks of

incorporating a historical perspective into its constitutional reform process because the

role of historical self-consciousness in transformative constitutionalism is a complicated

and nuanced topic8. In this argument, we'll concentrate on historical consciousness' crucial

and distinctive function in transformative constitutionalism—namely, it is capacity to act

as a link between the past, present, and future.

Historical consciousness can assist in guiding constitutional change that is more receptive

to the needs and perspectives of marginalized and disadvantaged groups by reflecting on

the historical causes of inequality and oppression and recognizing the legacy of prior

injustices.9 Historical consciousness can aid in fostering a more nuanced view of the past

and its ramifications for the present and future by looking at historical evidence and the

experiences of people who endured repressive regimes or discriminatory laws. 10

1.1 THE METHODOLOGY OF HOW THE ROLE PLAYS ITS PART

By considering the historical causes of injustice and oppression as well as its aftereffects,

historical consciousness in transformative constitutionalism acts as a link between the

past, present, and future11. This analysis contributes to a constitutional change that is more
7
Davis, D. M., & Klare, K. (2010). Transformative Constitutionalism and the Common and Customary Law. South
African Journal on Human Rights, 26(3), 403–509
8
Kibet, E. (2017). Transformative constitutionalism and the adjudication of constitutional rights in Africa. African
Human Rights Law Journal
9
https://hdl.handle.net/10520/EJC-60c05cf6d
10
Africa Journal of Comparative Constitutional law, vol.2017, no.1, 2 nd July 2017
11
https://hdl.handle.net/10520/EJC-60c05cf6d
sensitive to the demands and viewpoints of disadvantaged and marginalized groups, as

well as to prevent the future recurrence of the same errors. 12

By ensuring that the constitutional order considers the needs and views of historically

marginalized people and by encouraging accountability for past wrongs, historical

consciousness acts as a link between the past and the present. It also acts as a link between

the present and the future by encouraging a more inclusive and equitable society and

guiding constitutional change that is more responsive to the demands of 13future

generations.

In Kenya, historical self-consciousness is viewed as a key tool in bridging the present with

the future in transformational constitutionalism. The 2010 Kenyan constitution

acknowledges the significance of correcting historical wrongs and advancing equity and

fairness. The Bill of Rights, which protects individual freedoms and rights, and the

devolutionary clauses, which try to rectify the historical marginalization of specific regions,

are just two examples of constitutional provisions that reflect this acknowledgment of

historical self-consciousness14.

1.2 HOW SOUTH AFRICA HAS BEEN IMPACTED BY THE ROLE’S COURSE

Transformative constitutionalism has had a significant impact on the promotion of social

justice, equality, and human rights in South Africa, where it contributed to shaping the

nation's constitutional system after apartheid15.

12
Karin Van Marle, Transformative constitutionalism as and critique, 1 st Jan 2009
13
Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative
Constitutionalism
14
Mwenda, M. (2015, June 30). The Context of Transformative Constitutionalism in Kenya. Retrieved February 9,
2023
15
Theunis Roux, https://hdl.handle.net/10520/EJC54704
The promotion of accountability and past-hurt healing has benefited greatly from historical

consciousness' acknowledgment of the legacy of apartheid and its effects on South African

society. By reflecting on the shared experiences of its people and fostering a knowledge of

the nation's history and cultural heritage, South Africa's past—which is vivid and

fundamental to its roots—has contributed to shaping the country's national and collective

identity16. This has inadvertently promoted educated discussion on problems about justice,

equality, and human rights as well as encouraged public engagement with the past and its

consequences for the present and future 17

By highlighting the historical causes of injustice and oppression and acting as a catalyst for

constitutional change, historical consciousness has created a foundation for transformative

constitutional change. This has influenced how human rights are recognized, safeguarded,

and upheld in South Africa by underlining the necessity of constitutional provisions that

are sensitive to the nation's unique historical and cultural background. 18

In the case of The Minister of Justice and Constitutional Development v. The South African

Reserve Bank, the South African Constitutional Court addressed the topic of reparations

and historical self-consciousness. In this instance, the court determined that the

government had violated its constitutional duty to advance peace and right past wrongs by

refusing to compensate apartheid victims. The verdict, in this case, will have a big impact

on South Africa's ability to pay reparations in the future and to rectify the harm caused by

apartheid.19

16
Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative
Constitutionalism, South African Journal on Human Rights
17
Stellenbosch law review, vol.17, no.3
18
Rapatsa, M. (2014). Transformative Constitutionalism in South Africa: 20 Years of Democracy. Mediterranean
Journal of Social Sciences, 5(27 P2), 887
19
http://www.saflii.org/za/cases/ZACC/2018/30.html
The case of The Minister of Basic Education v. The Governing Body of Horskool Overvaal

involved the South African Constitutional Court, which addressed the topic of education

and historical self-consciousness. In this case, the court determined that the government

had violated its constitutional duty to advance peace and correct historical injustices by

failing to address historical imbalances in the educational system. The decision of this case

will have a big impact on South Africa's educational system and the government's ability to

rectify past imbalances.20

1.3 INDIAs SUBJECTION ON THE CLAIM

India's transformational constitutionalism is significantly shaped by its historical

consciousness. The 1950 Indian Constitution acknowledges the nation's extensive and

diverse cultural heritage and aspires to eliminate historical injustices and inequalities to

create a just and equitable society. India's historical consciousness and knowledge of

constitutional ideals and principles are shaped by the colonial past of the nation, as well as

the country's numerous ethnic, linguistic, religious, and social groupings 21.

There are numerous ways to view how India's historical consciousness is currently

influencing and will continue to influence transformative constitutionalism. It has sparked

continuous discussions and arguments about how to interpret the Constitution, its guiding

principles, and citizens' rights and responsibilities. This continual discussion aids in the

Constitution's evolution and erasure. 22The emergence of social and political groups in

20
Governing Body, Hoërskool Overvaal and another v Head of Department of Education Gauteng Province and
others [2018] 2 All SA 157 (GP) Division: GAUTENG DIVISION, PRETORIA.
21
Hailbronner, M. (2017a). Transformative Constitutionalism: Not Only in the Global South. The American Journal
of Comparative Law, 65(3), 527–565
22
Bhatia, G. (2017). Equal moral membership: Naz Foundation and the refashioning of equality under a
transformative constitution. Indian Law Review, 1(2), 115–144.
India that seek to guarantee equality, justice, and freedom for all citizens, regardless of

their backgrounds, has been influenced by the country's historical consciousness. 23

In the case National Campaign for Dalit Human Rights v. Union of India, the Indian Supreme

Court addressed the subject of Dalit rights and historical self-consciousness. In this

instance, the court determined that the government had violated its constitutional duty to

advance equality and correct historical injustices by failing to address the issue of

discrimination against Dalits. The decision of this lawsuit will have a significant impact on

both the ability of 24the government to remedy historical disparities and the future of Dalit

rights in India.

In the particular instance of Campaign for Survival and Dignity v. Union of India, the Indian

Supreme Court addressed the concern of Adivasi rights and historical self-consciousness. In

this instance, the court determined that the government had violated its constitutional duty

to advance equality and correct historical injustices by failing to address the issue of

Adivasi land dispossession. The decision of this case will have a significant impact on

Adivasi rights in India going forward as well as the government's ability to remedy

historical injustices25.

Overall, India's historical consciousness has played a significant role in forming its

transformational constitutionalism and will continue to do so in the future. India can work

toward a more just and equitable society and build a better future for all of its residents by

knowing and acknowledging its past26.

23
Sandra Lienberg and Beth Goldblatt, South African Journal on Human Rights, vol.23, no.2
24
On Dalit Protection Law, Top Court Recalls Order That Sparked Protests. (n.d.). Retrieved February 9, 2023
25
Bhukya, B. (2013). Enclosing Land, Enclosing Adivasis: Colonial Agriculture and Adivasis in Central India, 1853–
1948. Indian Historical Review, 40(1), 93–116
26
Kundu, I. (2020). Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary.
Indian Journal of Law and Justice, 11, 347
 1.4 COLOMBIA AND BRAZIL ON BRIDGING COURSE

The transformative constitutionalism in Colombia and Brazil has been greatly influenced

by historical consciousness as well27. Both nations have undergone enormous historical and

political changes, and their constitutions reflect the tribulations and aspirations of their

populaces.28

The constitutional development of Colombia, notably in terms of human rights, social

justice, and democracy, has been significantly influenced by the historical consciousness of

the nation's population. The nation's lengthy history of bloodshed and war has influenced

how important it is to safeguard individual rights and make sure that everyone has access

to the justice system equally29. These principles are reflected in Colombia's 1991

Constitution, which strives to create a society that is more just and democratic. Brazil's

transformational constitutionalism has been affected in several ways by the nation's

historical consciousness. Slavery, authoritarianism, and pervasive inequality were features

of the nation's past, and these events still have an impact on how it views democracy,

human rights, and social justice now. Brazilian citizens' rights are intended to be protected

by the 1988 Constitution, which embodies the nation's ambitions for a more inclusive and

equal society.30

27
von Bogdandy, A., Ferrer Mac Gregor, E., Morales Antoniazzi, M., Piovesan, F., & Soley, X. (2016, October 26). Ius
Constitutionale Commune En América Latina
28
Lopez-Jacoiste Diaz, E. (2017). Transformative Constitutionalism in Latin America. Anuario Espanol de Derecho
Internacional, 33, 503
29
von Bogdandy, A., Ferrer Mac Gregor, E., Morales Antoniazzi, M., Piovesan, F., & Soley, X. (2016, October 26). Ius
Constitutionale Commune En América Latina: A Regional Approach to Transformative Constitutionalism. Retrieved
February 9, 2023
30
Arguelhes, D. W. (2020). Transformative Constitutionalism: A View from Brazil. In repositorio.insper.edu.br.
Oxford University Press
In the 2004 case Sentencia T-025 de 2004, the Colombian Constitutional Court addressed

the question of Afro-Colombian rights and historical consciousness. In this instance, the

court determined that the government had violated its constitutional duty to advance

equality and correct historical injustices by failing to address the issue of historical

discrimination against Afro-Colombians. The decision of this lawsuit will have a big impact

on how Afro-Colombian rights will be in Colombia in the future and how the government

will be able to deal with historical injustices.31

In the case of ADPF 132, the Brazilian Federal Supreme Court addressed the subject of

LGBTQ+ rights and historical self-consciousness. In this instance, the court determined that

the government had violated its constitutional duty to advance equality and correct

historical injustices by failing to address the problem of historical discrimination against

LGBTQ+ people. The decision of this case will have a significant impact on Brazil's

government's ability to rectify past inequities as well as LGBTQ+ rights in the country. 32

In defining their revolutionary constitutionalism in the future, both Colombia and Brazil's

historical consciousness will continue to be very important. The population of both nations'

awareness of their pasts will continue to influence their expectations for a better future as

they grapple with contemporary issues like poverty, inequality, and political polarization.

Both Colombia and Brazil can work toward establishing a more just and equitable society

for all of their residents by recognizing and learning from their own historical

experiences.33

1.5 MAJOR BREAKTHROUGHS AND CANDIDS OF SAID ROLE

31
https://www.corteconstitucional.gov.co/relatoria/2004/t-025-04.ht
32
https://arpen-sp.jusbrasil.com.br/noticias/2978105/artigo-o-julgamento-da-adpf-132-e-da-adi-4277-e-seus-
reflexos-na-seara-do-casamento-civil
33
von Bogdandy, A., & Urueña, R. (2020). International Transformative Constitutionalism in Latin America.
American Journal of International Law, 114(3), 403–442
With the insurgent views on how different countries have embraced this vivid idea of how

the country banks on the transformation coming with the territory of how justifiable

change must be met with to have a progressive nation. Change is more than just an idea, it’s

a monument of repair of all the lessons learned that we ought to have better control of our

repressive idea of democracy.34

Concepts like communism, capitalism, and bureaucracy may have been forthcoming in the

development of the world but it all lies in the heart of the constitution and how we choose

to learn from the ambivalent history and use transformative principles and ideologies to a

better world.

There have been numerous approaches to transformative constitutionalism based on

relying on historical setbacks making a getaway to a breakthrough of constitutional law in a

prime era35.

The consciousness of a society's historical and cultural context, as well as the experiences

and viewpoints of underrepresented and underprivileged groups, has been a backbone to

and most definitely the starting point to the streak of building the viewpoint as it is seen

today.

This approach is pragmatic, realistic, and logical since it is only right to begin at the roots of

the cause. Nevertheless, participatory, integrative, and implementation approaches of

transformative constitutionalism emphasize the involvement of all members of society,

including disadvantaged and marginalized groups, in the constitutional process, the

significance of their voices and perspectives in influencing constitutional change, and the

34
Henk Botha, https://hdl.handle.net/10520/EJC54826
35
Verma, A. (2020, October 20). Transformative Constitutionalism
interdependence of various rights and values. It also aims to incorporate these elements

into a cogent constitutional framework that promotes social justice and equality. 36

This role on the table exhibits a dedication to social justice and inequality reduction with an

emphasis on the rights of underrepresented and underprivileged communities;

an understanding of each person's inherent worth and a dedication to upholding and

advancing their human rights; a dedication to ensuring equal access to opportunities and

legal protection regardless of race, gender, nationality, or other factors, and a dedication to

avoiding discrimination on any basis, fostering diversity, and promoting tolerance and a

dedication to democratic government, which includes ensuring that all citizens participate

in the political process, 37defending the rights of individuals and minorities, and upholding

the rule of law; a dedication to the rule of law, which includes judicial independence and

the defense of constitutional rights and liberties.38 This shows a passion for social justice

and inequality reduction with an emphasis on the rights of underrepresented and

underprivileged communities; a focus on making both formal and substantial changes in

the distribution of power and resources in society, as well as acceptance of the need for an

interdisciplinary approach to constitutional change, combining viewpoints from law,

politics, economics, sociology, and history. 39

Transformative constitutionalism now entails constitutional change that seeks to change

the power dynamics and social relations in society, especially in the areas of justice,

36
Hailbronner, M. (2017a). Transformative Constitutionalism: Not Only in the Global South. The American Journal
of Comparative Law, 65(3), 527–565
37
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200002
38
Veriava, F. (2016). The Limpopo textbook litigation: a case study into the possibilities of a transformative
constitutionalism. South African Journal on Human Rights, 32(2), 321–343
39
https://hdl.handle.net/10520/EJC97868
equality, and human rights. 40It also embodies progressive values like social justice, human

dignity, equality, and the protection of individual and minority rights and involves the

democratic participation of all members of society, including marginalized and

disadvantaged groups, in the constitutional process 41. Designing appropriate constitutional

interventions necessitates a careful and nuanced analysis of the particular historical,

cultural, and political context of a society. It also necessitates the effective implementation

of constitutional provisions through the creation of supportive institutions, policies, and

legal frameworks. 42

Nonetheless, there have been serious speculations that transformation Constitutionalism,

which aims to alter a country's political and social framework, frequently has detrimental

effects on historical consciousness, or the capacity to comprehend the past. This might take

place because the revision of laws, constitutions and social conventions might result in a

break with the past and a disrespect for cultural and historical memory. 43The nation's

collective awareness of its past may also be further weakened by the intense political and

ideological battles that can be a hallmark of the change process. It can be difficult for a

society to accept its past and move ahead cohesively when there is a fragmented sense of

identity and a lack of shared historical memory.44

Conclusively, as a result of acting as a link between the past, present, and future, historical

consciousness is crucial in forming transformative constitutionalism. Societies may develop

better futures by learning from their previous experiences and errors when they have a
40
Veriava, F. (2016). The Limpopo textbook litigation: a case study into the possibilities of a transformative
constitutionalism
41
Sanele Sibanda, https://hdl.handle.net/10520/EJC54807
42
Thuenis Roux, https://hdl.handle.net/10520/EJC54704
43
Hailbronner, M. (2017a). Transformative Constitutionalism: Not Only in the Global South
44
Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative
Constitutionalism, South African Journal on Human Rights
solid understanding of history45. Societies can design a constitutional framework that

reflects their goals for a fair and just future by identifying and considering their historical

experiences46. As new problems and realities arise, historical consciousness also influences

how constitutions are currently interpreted and evolving. It aids in ensuring that

fundamental constitutional ideals and concepts endure and change with the times while

retaining the substance of what the constitution stands for. 47 Because of this, advancing

social justice, equality, and human rights requires the role of historical consciousness in

transformative constitutionalism. It enables societies to comprehend their past and work

toward a future that is more inclusive and equitable for all of its members. 48

2.0 FOCUS ON HISTORICAL CONSCIOUSNESS IN TRANSFORMATIVE

CONSTITUTIONALISM CONSTITUTIONAL ORDER TO THE FUTURE GENERATIONS

Understanding the context and evolution of constitutional provisions can help us interpret

and apply them in the present, which can assist promote accountability by drawing

attention to historical injustices and ensuring that they are not repeated in the future 49.

Encouraging people to think about, engage with, and engage with the past as well as its

consequences for the present and future, also promotes democratic discussion. 50

The crucial topic of whether transformative constitutionalism's emphasis on historical

consciousness hinders a constitutional order's capacity to address problems that could

affect the interests of future generations has been investigated in the context of several

45
Kibet, E. (2017). Transformative constitutionalism and the adjudication of constitutional rights in Africa. African
Human Rights Law Journal, 17(2), 340–366
46
Verma, A. (2020, October 20). Transformative Constitutionalism
47
Githuru, F. (2015). Transformative constitutionalism, legal culture and the judiciary under the 2010 constitution
of Kenya. Retrieved February 9, 2023
48
Hailbronner, M. (2017a). Transformative Constitutionalism: Not Only in the Global South
49
Hailbronner, M. (2017a). Transformative Constitutionalism: Not Only in the Global South. The American Journal
of Comparative Law, 65(3), 527–565
50
JENNIFER KOLPACOFF DEANE. (n.d.). A History of Medieval Heresy and Inquisition, Second Edition
nations.51 A constitutional order's capacity to respond to concerns that are likely to affect

the interests of future generations is not necessarily harmed by the transformative

constitutionalism movement's emphasis on historical consciousness. 52 Instead, by fostering

an inclusive and fair society and seeing to it that the effects of previous injustices are

rectified, a historical consciousness focus can help to ensure that the constitutional order is

more sensitive to the needs and perspectives of future generations. Understanding the

context and evolution of constitutional provisions can help us interpret and apply them in

the present53. This promotes accountability by drawing attention to historical injustices

and assisting in preventing their repetition. Historical awareness can serve as a foundation

for transformative change by illuminating the historical causes of injustice and inequality

and acting as a spur for constitutional change. 54Considering the past and people's common

experiences also aids in forming national and collective identities.

South Africa, where the Truth and Reconciliation Commission helped address the legacy of

apartheid and provided a framework for building a more inclusive and just society, are two

examples of countries where the focus on historical consciousness in transformative

constitutionalism has had a positive impact.55 Germany is another country where the focus

on historical consciousness has helped address the legacy of the Holocaust and build a

more inclusive and democratic society.56

By emphasizing historical knowledge, transformative constitutionalism supports and

defends novel ideas, such as the LGBTQ+ community, by acknowledging the injustices and
51
Davis, D. M., & Klare, K. (2010). Transformative Constitutionalism and the Common and Customary Law
52
Kibet, E. (2017). Transformative constitutionalism and the adjudication of constitutional rights in Africa
53
Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative
Constitutionalism
54
Verma, A. (2020, October 20). Transformative Constitutionalism
55
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2847579
56
Soohoo, C. (2020). Reproductive Justice and Transformative Constitutionalism. Cardozo Law Review, 42, 819
prejudice that oppressed groups have endured both historically and currently. The

government and society have a responsibility to rectify existing inequities and work

toward establishing a more equitable and just future as a result of this realization of

historical self-consciousness.57

For instance, courts and tribunals have employed transformational constitutionalism to

address concerns of discrimination and inequality faced by the LGBTQ+ community in

nations where this community is recognized as a marginalized group. These cases

frequently rely on the understanding of historical self-consciousness and the duty of the

state to remedy historical injustices and advance equality.

This has helped to safeguard the rights and freedoms of the LGBTQ+ community by causing

a change in legal and cultural attitudes toward them. Transformative constitutionalism's

emphasis on historical consciousness also paves the way for the development of new ideas

and rights that take into account the shifting social values and demands. This is a

phenomenon that has been observed in numerous nations where transformative

constitutionalism has been employed to acknowledge the rights of oppressed groups,

including the LGBTQ+ population.58

Historical consciousness can support the advancement of social justice and human rights

by encouraging reflection on the antecedents of oppression and inequality as well as by

recognizing the lasting effects of previous injustices. 59By doing so, one can contribute to

making the constitutional order more inclusive and equitable as well as better able to

address present and future challenges and possibilities. Affect to its validity it can

57
https://www.jstor.org/stable/26630273
58
Sankhyan, A., & Hussain, S. S. (2022). Rights Of LGBTQ In India and The Struggle for Societal Acceptance. Journal
of Positive School Psychology, 6(3), 9903–9915
59
https://journals.co.za/doi/abs/10.10520/EJC54606
encourage a sense of societal and community responsibility by recognizing past wrongs

and encouraging accountability for past injustices.60 This can make the constitutional

system more receptive and adaptable to possibilities and problems in the future.

Historical consciousness can offer a complex perspective of the past and its repercussions

for the present and future through evaluating the historical record. This may provide

guidance for constitutional change that is more sensitive to the requirements and

viewpoints of disadvantaged and marginalized groups, including future generations.

Additionally, historical consciousness, a feeling of identity, and a link to the past can

support inclusive and fair decision-making processes. The constitutional order may be

made more receptive and adaptable to possibilities and challenges in the future as a result.

A constitutional order's capacity to respond to present and future opportunities can be

strengthened by thinking about how the past and present are related. This can ensure that

the constitutional system is more adaptable and resilient and that it is better prepared to

respond to upcoming opportunities and difficulties 61. A focus on historical consciousness

can support the development of both a more responsive and adaptive constitutional system

as well as a society that is more inclusive and egalitarian.

Nonetheless, even with how this has made and is a major breakthrough it would be

preposterous to not highlight how this could have its giving nature of possible negative

impacts on a constitutional order's ability to respond to issues that are likely to impact the

interests of future generations in certain circumstances62. The attention to historical

injustices that transformational constitutionalism emphasizes can occasionally lead to

60
Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative
Constitutionalism
61
Kibet, E. (2017). Transformative constitutionalism and the adjudication of constitutional rights in Africa
62
Tim Fish Hodsgon, 1st dec 2015, https://journals.co.za/doi/abs/10.10520/EJC-60c05cf6d
social strife and discord. This may limit a constitutional order's ability to address problems

that could affect the interests of future generations. also, can hinder a constitutional order's

ability to respond to situations that are likely to affect the interests of future generations. 63

This may also hold down the process of constitutional change. limit a constitutional order's

ability to respond to concerns that are likely to affect the interests of future generations

and can overemphasize the past at the expense of the future. It is crucial to remember that

these detrimental effects can be lessened by making sure that historical knowledge is

balanced, inclusive, and interwoven with other components of a revolutionary

constitutional framework.64 Because it gives people a better understanding and context for

the past, the transformative constitutionalism movement's emphasis on historical self-

consciousness does not hinder a constitutional order's capacity to respond to problems

that affect the interests of future generations65. Informed decisions that strike a balance

between the requirements of the present and the interests of future generations can be

made by constitutional actors by using this information to guide their decisions in the

present and the future.66 A focus on historical self-consciousness also encourages a more

inclusive and equitable approach to constitutional change because it acknowledges the

significance of the historical contributions made by various groups and communities and

how they have influenced the present and the future67. In conclusion, the incorporation of a

historical consciousness within transformative constitutionalism does not prevent a

constitutional system from addressing challenges that are oriented toward the future. In

reality, by considering the historical setting and prior experiences, constitutional actors can
63
Marius Pieterse, 1st jan 2015, , SA publiekreg, SA public law, Vol.20, no.1
64
JENNIFER KOLPACOFF DEANE. (n.d.). A History of Medieval Heresy and Inquisition, Second Edition
65
Karin Van Marle, https://journals.co.za/doi/abs/10.10520/EJC54703
66
Sanele Sibanda, https://hdl.handle.net/10520/EJC54807
67
https://journals.sagepub.com/doi/abs/10.1177/0090591798026001004?journalCode=ptxa
make defensible judgments that are better suited to handle present-day problems as well

as those that will arise in the future, all the while advancing the interests of future

generations. This strategy emphasizes the necessity of being proactive in building a better

future for everyone, in addition to the recognition of how much the past has shaped the

present.68

68
Karl E Klare (Professor of Law) (1998) Legal Culture and Transformative
Constitutionalism