There is no Supreme Constitution: A Critique of Statist-Individualist Constitutionalism

Acknowledgements
About the Author
Introduction
Chapter 1 - Constitutionalism
	Introduction
	The core characteristics of constitutionalism
		Normativity – the commitment to justice
		Fundamental (higher) law
		The consensual basis of the rule of law – customary law-abiding conduct
		Limited government; diffusion and balance of power; the idea of the mixed constitution; public office
Chapter 2 - Statist-individualist Constitutionalism
	Introduction
	Statism – paving the way to statist constitutionalism
	The establishment of statist-individualist constitutionalism
	The nine essential beliefs of statist-individualist constitutionalism
		State-based positive law, more specifically the formulations of the Constitution, is omnipresent
		The Constitution is rigid and actually supreme
		The Constitution is formulation-driven and has a formal-static character
		The supreme value that is placed on the formulations – the written words of the constitutional Document
		Pre-political
		The trias politica and the independence, impartiality and effectiveness of the judiciary
		The preoccupation – fixation – with micro theory (and the statist‑individualist approach to interpretation)
		The twosome consortium of the state and the individual – state sovereignty and abstract universal, individual human rights
		The state is anti-communitarian and anti-pluralist
	Statist-individualist constitutionalism’s three key mechanisms
		Supremacy proclamations, entrenchment and conformity mechanisms, andstrict amendment requirements
		The trias politica, checks and balances and the independence andimpartiality of the judiciary
		Bills of individual rights
Chapter 3 - Statist-individualist Constitutionalism in Post 1994 South Africa
	Introduction
	The key mechanisms of statist-individualist constitutionalism in the South African constitutional order
		Supremacy proclamation, entrenchment and conformity mechanisms and strict amendment requirements
		Trias politica, checks and balances and the independence and impartiality of the judiciary
		The (justiciable) Bill of Rights
	The statist-individualist belief system in the South African constitutional discourse
Chapter 4 - There is no Supreme Constitution
	Introduction
	Law’s dual dimensionality
	Conceptual clarification: legal norms and legal norm-formulations
	The basic thesis of the factual requisite (or dimension) of law
	The doctrine’s faith-strengthening language
	Exposition of the factual requisite of law and critique of the doctrine
		Substituting law arising from the behaviour of public office-bearers
		Lapsed law resulting from the behaviour of public office-bearers
		Substituting or lapsed law arising from the behaviour of(segments of) the public
		Still-born law, including still-born constitutional law
	Conclusion
Chapter 5 - The Constitution of the Republic of South Africa is not Supreme and its Rights Not Entrenched
	Introduction
	The actual changes to the South African constitutional dispensation
		The centres of governmental power (1) (quasi-federalism)
		The centres where governmental power is exercised (2) (Hybrid governmental power)
		Cadre deployment and the patronage state
		The responsibility for safety and security
		The value basis and the official language dispensation in terms of the Constitution
		Founding values: (1) (Re)racialilastion substituting non-racialism (and consequences for freedom of expression)
		Founding values: (2) Homogenisation and racial representation (representivity)
		Founding values: (3) Ubuntu and its uncomfortable co-existence with the rule of law
		The substitution of the multilingual official language dispensation
	Conclusion
Chapter 6 - The Unity of Powers and the Dependence and Partiality of the Judiciary
	Introduction
	Criteria for judicial appointments
	The falling-out of April 2013
	Analysis and critique of the statist-individualist doctrine of judicial independence and impartiality
		The judiciary − not so separate and independent from the (rest of) the dominant elite
		The judiciary – not so impartial and not purely legally reasoning
		The transformationists in the same statist doctrinal trap
	Conclusion
Chapter 7 - Constitutional Supremacy and Judicial Impartiality Hermeneutically Viewed
	Introduction
	Orthodox (deductive) constitutional interpretation
	Purposive interpretation
	Transformative (transformationist) interpretation (as an ingredient of transformationism)
		Homogenous egalitarian society
	Transformative interpretation − the transformationist role of the Constitutional Court
		Intra dominant elite hiccups and quarrels
		Transformationist interpretation in the Constitutional Court
	Conclusion
		Judicial interpretation of the Constitution
		Guaranteed judicial protection of individual rights?
		The supremacy of the Constitution
Chapter 8 - Universal Individual Rights
	Introduction
	The way to the abstract individual and universal human rights
	Individual rights without communities
		The redundancy argument
		The definition (legal subjectivity) argument
	Conclusion
Chapter 9 - Beyond Statist-Constitutionalism
	Introduction
	Autonomous, self-sustained communities; a multitude ofgovernmental centres
		A classical constitutional moment: Regnum and Sacerdotium
		Althusius’ Politica
		Politocracy
	Checks and balances
		The family
		ommerce, industry and the professions
		Educational institutions, universities in particular
		Formations of civil society
	Property
Bibliography
Index