Bridging the gap between constitutional abolitionist and transformative critiques of South African constitutionalism

This paper examines two critiques of the South African constitution’s ability to eradicate inequality – ‘constitutional abolitionism’ (which argues that the constitution is embedded in liberal ideology and is thus inherently incapable of eradicating inequality ) and the ‘internal’ critique (which roots the problem not in the constitution, but in the failure of courts, the legislature and executive).

The paper will suggest a shift away from seeing the two approaches as dichotomous. Through a critical analysis of the departures from classic liberal constitutions (on which the theory of transformative constitutionalism relies), the paper will argue that, if radically and persistently pursued, these departures could pave the path towards the constitutional abolitionists desired rupture from the prevailing social and economic inequality in South Africa – work that will require commitment from the legislature, judiciary and executive – bridging the gap between the two critiques.