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Accident Fund and Another v. Mdeyide. in This Decision, The Constitutional Court of South Africa

Transformative constitutionalism seeks large-scale social change through the law by eschewing formalism and legalism in favor of an interpretation that acknowledges power structures within society. It subjects societal norms to constitutional values and breaks with traditions of situating private relationships outside the constitution. A constitution embodies a nation's ideals, values, and aspirations as well as the will of the people, making it an organic document that shapes democracy. The Indian Constitution aims to transform medieval hierarchical society into a modern egalitarian democracy through provisions understood via social science rather than legalism. South African jurisprudence has largely developed the concept of transformative constitutionalism, such as ensuring the weak can enjoy dignified lives per a Constitutional Court decision.

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63 views1 page

Accident Fund and Another v. Mdeyide. in This Decision, The Constitutional Court of South Africa

Transformative constitutionalism seeks large-scale social change through the law by eschewing formalism and legalism in favor of an interpretation that acknowledges power structures within society. It subjects societal norms to constitutional values and breaks with traditions of situating private relationships outside the constitution. A constitution embodies a nation's ideals, values, and aspirations as well as the will of the people, making it an organic document that shapes democracy. The Indian Constitution aims to transform medieval hierarchical society into a modern egalitarian democracy through provisions understood via social science rather than legalism. South African jurisprudence has largely developed the concept of transformative constitutionalism, such as ensuring the weak can enjoy dignified lives per a Constitutional Court decision.

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Nandini Sharma
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© © All Rights Reserved
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colonial Constitutions.

The idea of transformative constitutionalism lies in its emancipatory pursuit


and in the conviction that large-scale social change within a certain political system is possible
through the process and instrumentality of the law. Transformative constitutionalism enjoins a certain
reading of the constitutional text [24] that eschews formalism, pure positivism and legalism and
advances an interpretation that acknowledges and responds to the reality of hierarchical structures and
power relationships within a society. Most importantly, however, a transformative constitution breaks
with the [25] legal tradition of situating private relationships and community conventions outside of
the constitutional mold, subjecting societal mores to constitutional values [26].

A Constitution, apart from laying down the interrelationship between the state organs and their scope
and powers, embodies the ideals and aspirations and the values to which the people have committed
themselves; it mirrors the soul of the nation and the people’s supreme will and that is why the
constitution is considered an organic document that helps in shaping democracy [27].

The CJI traced a nascent origin of the concept, the Court observed that the “Indian Constitution is a
great social document, almost revolutionary in its aim of transforming a Medieval, hierarchical
society into a modern, egalitarian democracy, and its provisions can be comprehended only by a
spacious, social- science approach, not by pedantic, traditional legalism” [28].

The CJI referred to several judgements from South Africa to explain the concept of transformative
constitutionalism, despite initially grounding the concept in a 1976 decision of the Supreme Court, as
it has been developed largely in the jurisprudence of South Africa. The first judgement was the Road
Accident Fund and another v. Mdeyide. In this decision, the Constitutional Court of South Africa
described the South African Constitution as transformative to the extent that it should ensure to the
weakest sections of society the realization of their rights so they can enjoy a dignified life [29]. The
second

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