The Legitimacy of Transformative Constitutional Adjudication

This paper develops a typology of threats to the legitimacy of judicially led transformative constitutionalism. This is necessary because courts in India, South Africa, and Colombia are increasingly criticized due to their adjudication records being incapable of responding to systemic material deprivation with recalcitrant government authorities. These threats, if not engaged with in a rigorous manner, threaten to undermine both the legitimacy and effectiveness of transformative constitutionalism, escalate inter-branch tensions and consequently expend the courts’ limited institutional capital. The typology, which is organized along doctrinal/interpretive, sociological, and institutional dimensions – most of which usually tend to vary across time – has implications not only on doctrinal coherence and the perceptions of the role of courts across the polities under study, but also their relationship with the coordinate branches as agents in the process of social transformation.