Courts and transformative constitutionalism: insights from South Africa

Abstract

The enactment, implementation, and adjudication processes of laws form the bedrock of democratic societies, since they underlie the relationship between the three branches of government. Just like human interaction, however, intergovernmental relationship is often problematic. Specifically, when judicial review occurs, there is always the spectre of overturning, amending, and reinterpreting legislation and executive policies. So, in what ways should courts and the political branches interface to ensure accountability? Using the concept of transformative constitutionalism, this chapter examines the interface between courts and executive agencies against the background of issues such as legal populism, climate change litigation, separation of powers doctrine, and judicial support for drugs policy and victims. It conceptualizes transformative constitutionalism as a political philosophy for promoting human welfare by the judiciary, legislature, and executive, and argues that judges alone cannot ensure social change without the cooperation of lawmakers and executive agencies.