Toward a Relational Constitutionalism

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Pages: 239-253
• Citation: 2008 Acta Juridica 239
• Author: Peggy Cooper Davis
• Date: 15 August 2019

Toward a Relational Constitutionalism

PEGGY COOPER DAVIS*

New York University

I INTRODUCTION

The South African Constitution explicitly instructs its interpreters to

look to the rulings of other nations and to those of international tribunals

for guidance.

1

This cosmopolitan stance is an admirable example of the

wisdom of constitutional judgments in the new South Africa. Taking

such a stance, I dare say that you will f‌ind a great deal to emulate – in the

United States and elsewhere. But in taking this stance you will, I imagine,

draw as much wisdom from the mistakes of other nations as from their

successes. Justice Ackermann, whose work is honoured here, has

described South African constitutionalism as appropriately ‘reactive’ to

the history of apartheid.

2

But negative lessons are not only home-grown.

In a cosmopolitan effort to give meaning to such notions as liberty,

equality and human dignity, it is appropriate to be sensitive and reactive

to the limitations of others’ visions. SouthAfrica is as much the pioneer as

the follower in our shared quest for constitutional democracy, and so we

will all prof‌it as it exposes and corrects for the blind spots of other

jurisdictions.

Although there is much to be proud of in the United States

constitutional tradition, I invite your attention to two areas in which our

constitutional vision seems to me def‌icient and South Africa’s; seems

superior. Reading the work of Justice Ackermann and other participants

in the development of the emerging constitutional tradition in South

Africa, it is diff‌icult to avoid the thought that the United States’

constitutional vision is def‌icient in its failure to develop a concept of

human dignity that can inform the elaboration of human rights. I argue

that this failure has to do with our inability to understand and learn from

the reactive character of our constitution as reconstituted after the Civil

War and the abolition of slavery. I honour South Africa’s ability to face

and learn from past abuses. And I encourage reactive constitutionalism –

in the United States as well as in South Africa – as a way of understanding

the importance of dignity to democratic theory. Reviewing South

* John S R Shad Professor of Lawyering and Ethics, New YorkUniversity School of Law.

1

See s 39(1) of the Constitution of the Republic of South Africa, 1996: ‘(1) When

interpreting the Bill of Rights, a court, tribunal or forum – (a) must promote the values that

underlie an open and democratic society based on human dignity, equality and freedom; (b)

must consider international law; and (c) may consider foreign law’.

2

L W H Ackermann ‘The legal nature of the South African constitutional revolution’

(2004) 4 New Zealand LR 633 at 643.

239

2008 Acta Juridica 239

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