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Surname: SWARTZ
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First Names(s): ZACHARY …...
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Student Number: 4273680
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Z Swatz 26 October 2023

______________________ _____________________
Signature Date:
1 INTRODUCTION
This essay examines transformative constitutionalism as an example of transformative
jurisprudence, analysing its complex connection with freedom, legal culture and legal
pluralism. It also compares it to Rawls’ theory of justice as fairness. By conducting this
analysis, the essay aims to present a jurisprudence that could significantly contribute to social
justice in South Africa.

2 THE TENSION BETWEEN FREEDOM AND CONSTRAINT

In Klare’s essay,1 the focus is on adjudication as a branch of law-making that is guided by
reasoned arguments and principles.2 He states that a significant portion of South Africa’s law-
making power is to judges and adjudication.3 It shapes legal practices and promotes justice in
society.4 The Bill of Rights and the Constitution of the Republic of South Africa, 1996 serve
as a negotiated political foundation upon which democratic transition in South Africa rests. 5
According to Klare, adjudication is a bridge from an authoritarian past to a culture of
justification.6
Klare refers to the concept of a ‘conscientious judge’. 7 He states that they would have played
a critical role in challenging the oppressive legal culture within the Apartheid regime. 8 As
such a judge would have upheld their oath to apply the apartheid laws while interpreting them
in a way that mitigated their harmful impact on the victims. 9 He states despite the tight
constraints imposed by the apartheid laws, which would have hindered their capacity to act in
a just manner, judges should have navigated strategically to achieve freedom and social
justice.10
Klare continues to discuss a postliberal South Africa where he describes a conscientious
judge as one who is committed to upholding the Constitution’s transformative principles and
is willing to interpret the law in a manner that promotes social justice and equality. 11
However, these judges still confront the conflicting pulls and tensions of freedom and
constraint.12 As the Constitution uses broad language and is not entirely open to
1
Klare K ‘Legal culture and transformative constitutionalism’ (1998) 14 SAJHR 146 188.
2
Klare K (1998) 146.
3
Klare K (1998) 147.
4
Klare K (1998) 147.
5
Klare K (1998) 147.
6
Klare K (1998) 147.
7
Klare K (1998) 148.
8
Klare K (1998) 148.
9
Klare K (1998) 148.
10
Klare K (1998) 148.
11
Klare K (1998) 149.
12
Klare K (1998) 149.
interpretation, as judges must act within the bounds of the legal constraints known as the rule
of law and legal culture.13 These legal constraints are both cultural and psychological, as
when judges are interpreting the legal principles a judge’s personal or political values cannot
be excluded from the interpretation because that is impossible. 14 Therefore, judges are
restricted to making specific decisions based on the legal experience interpreting that aspect
of the law and are constrained by the legal culture of specific areas of the law to specific
determinable outcomes.15 Klare states that the idea that judges are completely impartial and
that laws apply to everyone equally, without any bias, can be important beliefs that help a
society move towards becoming more democratic. 16 Klare argues that a conscientious judge
plays a vital role in navigating these tensions and constraints to challenge the legal culture
and promote the principle of transformative constitutionalism.17

3 RELATION BETWEEN KLARE’S TRANSFOMATIVE CONSTITUTIONALISM

AND LEGAL CUTURE
Klare describes transformative constitutionalism as a gradual process that is aimed at
reshaping a country’s political and social institutions. 18 He advocates for large-scale socio-
economic transformation through non-violent processes rooted in law, through the
Constitution.19 He argues for laws to be interpreted to achieve this socio-economic
transformation.20 Klare states that there is a disconnect between the transformative desires of
the Constitution and South Africa’s legal culture.21
Legal culture is defined as the attitudes, values, beliefs and practices shaping the legal system
and the behaviour of those within it.22 In South Africa, the legal culture is described as
conservative by Klare, as it influences lawyers to approach legal matters cautiously and
formally, limiting interpretations to strict rules. 23 This restrictive approach aligns with
Douzinas and Gearey's24 concept of restricted jurisprudence, focusing on a limited

13
Klare K (1998) 149.
14
Klare K (1998) 160.
15
Klare K (1998) 160.
16
Klare K (1998) 166.
17
Klare K (1998) 149.
18
Klare K (1998) 150.
19
Klare K (1998) 150.
20
Klare K (1998) 150.
21
Klare K (1998) 151.
22
Klare K (1998) 166.
23
Klare K (1998) 168.
24
Douzinas C & Gearey A ‘From Restricted to General Jurisprudence’ in Critical jurisprudence: The political
philosophy of justice (2005) 10.
interpretation of what is the law by separating itself from society. 25 It restricts the law to one
singular formal product, as it detaches itself from the dynamics and relationship with
society.26 As legal actors, we are trained to find certain legal arguments compelling and
convincing.27 However, this narrow interpretation is inconsistent with Klare’s notion of
transformative constitutionalism, which aims to address systemic injustices and promote
transformative change through the interpretations and application of legal principles. 28
To achieve a culture of justification, South Africa’s legal culture must shift towards a more
general jurisprudence.29 This general jurisprudence is more expansive in its view of what the
law is and considers social, political and historical factors in understanding and applying the
law.30 Klare argues for transforming South Africa’s legal culture and education, urging a
closer harmony between legal practices and constitutional values.31

4 LEGAL PLURALISM AND ITS CONTRIBUTION TO TRANSFORMATION

Legal pluralism is the co-existence of multiple legal systems within one jurisdiction and a
critical aspect of South African law.32 It challenges this idea that the law is solely a formal
product of the state and recognises the significance of customary and religious laws. 33 This
recognition fosters social cohesion by respecting cultural diversity and promoting inclusivity,
aligning with the goals of transformative constitutionalism in post-apartheid South Africa. 34
Currently, in a South African context, we have weak pluralism, as the Constitution recognises
customary law as a source of law, but the state law is still seen as the main source of law, as
customary law must be in line with the State for it to be valid.35
In Bahl’s article, this concept is explored in the context of India and South Africa, she
expresses how these multiple forms could be opposed to the concept of the rule of law. 36 The
rule of law is a concept that ensures just and fair governance and subjects all members of
society to one system of law.37 Bahl states that advocates of the rule of law assume that there

25
Douzinas C (2005) 10.
26
Douzinas C (2005) 10.
27
Klare K (1998) 168.
28
Douzinas C (2005) 10.
29
Douzinas C (2005) 10.
30
Douzinas C (2005) 10.
31
Klare K (1998) 168.
32
Bahl N ‘Accommodation and altercation: The challenge of legal pluralism in India and South Africa’ (2016) 1
Africa Journal of Comparative Constitutional Law 58 89.
33
Bahl N (2016) 59.
34
Veitch S, Christodoulidis E & Goldoni M Jurisprudence: Themes and Concepts 3 ed (2018) 282.
35
Veitch S (2018) 285.
36
Bahl N (2016) 60.
37
Bahl N (2016) 60.
is a single, coherent body of norms that is derived from one clear source. 38 She states how
legal pluralism challenges this and appears to contradict the rule of law but there is room for
both concepts in the same legal system.39
Legal pluralism enhances accessibility to justice by allowing citizens to engage with familiar
and approachable traditional justice systems.40 Legal pluralism ensures that citizens can
access justice through mechanisms they understand and trust. 41 This inclusive approach
facilitates social change by integrating customary laws into the legal framework, encouraging
the evolution of traditional norms in harmony with constitutional values. 42 In essence, legal
pluralism not only recognises diverse legal systems but also promotes social and political
change, making it a cornerstone of South Africa’s transformative constitutionalism.43

5 THE DIFFERENCES AND SIMILARITIES BETWEEN KLARE’S POSTLIBERAL

AND RAWLS’ THEORY OF JUSTICE AS FAIRNESS
Both theories share a common commitment to social justice and equality. They emphasise the
importance of addressing societal inequalities and promoting fairness. However, they differ
as Rawls’ hypothetical scenario provides a universal framework rooted in abstract principles 44
and Klare is more context-specific, as his theory is more for the post-colonial and post-
apartheid South Africa.45 Rawls’ theory is not constitutionally based but more a broad
philosophical idea,46 whereas Klare’s theory is rooted in the idea of using the Constitution as
a tool for social and economic transformation. 47 Rawls’ Theory focuses on establishing
principles of justice, such as equal basic liberties and the difference principle, for a well-
ordered society and the principles that should guide the design of a just society. 48
Transformative constitutionalism emphasises the role of the judiciary and transformative
adjudication to advance social justice.49
Rawls’ scenario forces individuals to think impartially and rationally about the principle of
justice and aims to ensure that the least advantaged members of society are given priority. 50

38
Bahl N (2016) 61.
39
Bahl N (2016) 61.
40
Bahl N (2016) 62.
41
Bahl N (2016) 62.
42
Bahl N (2016) 63.
43
Veitch S (2018) 288.
44
Veitch S (2018) 234.
45
Klare K (1998) 146.
46
Veitch S (2018) 235.
47
Klare K (1998) 150.
48
Veitch S (2018) 234.
49
Klare K (1998) 156.
50
Veitch S (2018) 235.
Rawls accepts the idea that inequalities will occur and states that they are justified only if
they benefit everyone, especially the most vulnerable. 51 Rawls’ theory is liberal, as it is
argued that each person has an equal claim to basic liberties and these liberties can only be
restricted if their exercise threatens the existence of society. 52 However, transformative
constitutionalism goes beyond the traditional liberal approach as seeks to actively transform
society by addressing historical injustices, through the interpretation of constitutional
provisions that advance socio-economic rights.53

6 CONCLUSION
In conclusion, based on the analysis, we can see that jurisprudence that can contribute to
social justice should incorporate elements of transformative constitutionalism, legal pluralism
and Rawls’ theory of justice as fairness. It should include a legal culture that effectively
considers the broader social, economic and political factors. This jurisprudence should
promote substantive equality, address historical injustices and ensure equal access to justice
for all. A jurisprudence that does not separate itself from the dynamics of society and that
allows for substantive change. The jurisprudence that I would suggest is a general
jurisprudence that aligns closely with Klare’s transformative constitutionalism and seeks to
address systemic inequalities beyond formal legal rules.

51
Veitch S (2018) 236.
52
Veitch S (2018) 236.
53
Klare K (1998) 169.
Bibliography:
Books
Veitch S, Christodoulidis E & Goldoni M Jurisprudence: Themes and Concepts 3 ed (2018)
New York: Routledge.

Chapters in book
Douzinas C & Gearey A ‘From Restricted to General Jurisprudence’ in Critical
jurisprudence: The political philosophy of justice (2005) London: Hart Publishing.

Journal Articles
Bahl N ‘Accommodation and altercation: The challenge of legal pluralism in India and South
Africa’ (2016) 1 Africa Journal of Comparative Constitutional Law 58 89.
Klare K ‘Legal culture and transformative constitutionalism’ (1998) 14 SAJHR 146 188.