The history of constitutionalism in South Africa reveals the manner in which law reinforced the governance of the authoritarian regime of Apartheid South Africa, while at the same time created a space for litigation strategies which, at the very least, tempered the excesses of Apartheid rule. The paper shows that the ambiguous history which preceded the introduction of the 1996 Constitution influenced the drafters of the Constitution into a commitment to constitutional as opposed to majoritarian democracy. The paper proceeds to caution against the liberal claim that constitutionalism can be equated democracy .In this way, the authority of the Constitution reduces the potential for other forms of politics. It does so by assuming a position of hegemonic authority ,thereby preventing a debate aimed at the construction of a society which differs from the normative framework as set out in the constitutional text.
The article introduces and analyzes authoritarian constitutionalism as an important phenomenon in its own right, not merely a deficient or deviant version of liberal constitutionalism. Therefore it is not adequate to dismiss it as sham or window-dressing. Instead, its crucial features – executivist technique of governing, participation as complicity, power as property and the cult of immediacy – are related to the basic assumption that authoritarian constitutions are texts with a purpose that warrant careful analysis of the domestic and transnational audience.
This chapter proposes to include in the term Authoritarian Constitutionalism the set of provisions that fix neoliberal orthodoxy as the only policy choice available to public officials. It opposes the justification that economic policy should be protected from political deliberation and argues that constitutionally enshrining the agenda of fiscal austerity, free trade, export led growth and the protection of foreign investment is a form of authoritarianism. Authoritarian liberalism captures the combination of politically authoritarian forms of governing in defense and pursuit of economically liberal ends. It is a phenomenon often associated with periods of economic crisis, such as the recent Euro-crisis. This chapter suggests, however, that authoritarian liberalism is less exceptional than normal. The two texts provide examples from the Latin American and European contexts.
This chapter links Monarchic Constitutionalism to Bonapartism and Gaullism as forming part of a French tradition of “authoritarian constitutionalism”. It argues that the first Bonapartism (1799-1814) laid the foundation for Monarchic constitutionalism (1814 – 1848) which in turn did so for the second Bonapartism (1848 – 1870) and for Gaullism (1958 – 1969). It focuses on ‘constitutional moments’ and the question of constituent power, examining the initial ‘constitutional octroy’ following a coup, and, in the cases of Bonapartism and Gaullism, the use of plebiscite to legalize what could anachronistically be called today ‘unconstitutional’ constitutional revisions.
This chapter examines the influence of authoritarian constitutionalism in Latin America. Mainly focused on the “founding period” of regional constitutionalism (1850-1880), the paper claims that, in spite of the fact that authoritarian constitutional lacks today most of the influence that it used to have, it continues to represent a powerful force within regional constitutionalism. The author suggests that the vast majority of Latin American Constitutions continue to organize their “structure of powers” according to an imperfect and unstable liberal-conservative model; and also that this flawed structure allows a recurrent re-emergence and occasional re-invigoration of authoritarian impulses within regional constitutionalism.
This chapter examines the relationship between authoritarianism and liberal democratic constitutionalism from a distinctive vantage. Even among quite sensitive treatments of “hybrid” and “dual state” regimes – regimes that combine authoritarianism with features of liberal democratic institutions and practices – there remains an air of surprise at their stability, repressive measures are generally described as occurring in spite of the liberal democratic institutions and practices, not because of them, and attention rests almost exclusively with the “sham” appearance of liberal democratic institutions and practices in these regimes, not the appearance of authoritarianism in liberal democratic states. Authoritarianism, in short, is persistently framed in the negative space of democratic constitutionalism.