Decolonising the Real: Transformative Constitutionalism and the Unconscious

“Transformative constitutionalism” has been suggested as a viable post-liberal alternative to juristic interpretation after apartheid. The article considers the role of transformative constitutionalism in the decolonisation of the Real. It suggests that colonialism denigrates the unconscious of the colonised through an instrumentalisation by way of which it is incorporated as a critical part of the system of colonialism. Transformative constitutionalism’s preoccupation with the “gaps, conflicts and ambiguities” of language positions it in a way conducive to the liberation of the colonised’s unconscious by way of what Jacques Lacan called “separation”. I argue that despite transformative constitutionalism’s aversion to violence, its acts of interpretation take place in a field of what Cover called “pain and death”. Such interpretations are thus necessarily acts of violence not within, but against, the colonial Symbolic, and so they can help to facilitate acts through which the Real can at last become decolonised.