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- According to this model, judges decide cases in light of the facts in relation to precedent (existing case law), plain meaning of the Constitution and statutes, and the intent of the legislative branch and Constitutional framers (Segal and Spaeth 2002).
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the content of the "new" Constitutionalism. What Is the "New" Constitutionalism? That we have a new Constitutionalism is indubitably indicated by the large number of overruled decisions and the equally great number of decisions by a bare ma jority of the Court. There are almost as many of both of these during the past ten years as in our entire ...
late former Chief Justice Langa stated the following in an attempt to provide a definition for transformative constitutionalism in the light of the duty of judges ‘upholding the transformative ideal of the Constitution requires judges to change the law to bring it in line with the rights and values for which the Constitution stands.
Nov 1, 2004 · 71. The Political Origins of the New Constitutionalism. Ran Hirschl*. Over the past two decades the world has witnessed an astonishingly rapid transition to what may be called juristocracy. Around the globe, in numerous countries and in several supranational entities, fundamental constitutional re- form has transferred an unprecedented amount ...
- Introduction
- I. Transformative Constitutionalism
- II. Transformative Constitutionalism in Practice
- III. Different Approaches to Transformative Constitutionalism
- IV. What Insights?
- Conclusion
Transformative constitutionalism has emerged as a new concept in comparative law.1 The term is associated with the rise of activist tribunals in a number of Global South jurisdictions and many of those who invoke transformative constitutionalism understand it as a counter-model to the North.2With an optimistic belief in the power of courts to bring...
As previously mentioned, it is important to acknowledge there is no single comprehensive comparative theory or concept of transformative constitutionalism. Although Global South comparisons are a burgeoning field at the moment, the volumes dealing with it so far mainly present individual country reports on what are thought to be some common element...
A. Beyond the United States: The German Case
If U.S. constitutionalism represents in important ways the model Southern jurisdictions aim to transcend, other Northern countries are much closer to the Southern paradigm. One Northern country that is particularly interesting to the contemporary Global South debate is Germany.60 Like South Africa after apartheid, Germany emerged after the Second World War a broken and morally discredited country with a strong imperative of political and social change. The German Basic Law reflected this comm...
B. The Indian Case
To say that India has embraced a form of transformative constitutionalism is not controversial. For the purposes of comparison, it is nevertheless useful to briefly recall some of the basic features of the Indian brand of transformative constitutionalism. Like its German counterpart, the text of the Indian Constitution reflects the commitment to social justice, obliging the state to make sure that “the ownership and control of the material resources of the community are so distributed as best...
The most striking difference between Germany and India lies in their different approaches to what are at least in some respects similar challenges of transformative constitutionalism. Charging courts with the task of realizing a transformative constitution expands the realm of what were previously thought to be legal questions. Established legal tr...
The global trend toward courts being increasingly involved in policy-making tasks is unlikely to be reversed any time soon. Given that, the question looms large how lawyers should best approach the new tasks they are being confronted with. This debate has only just begun, but the diverging German and Indian responses to this question are worth taki...
Transformative constitutionalism is still a new phenomenon in global legal history. Unlike the traditional model of constitutionalism, with its focus on preserving individual freedom from governmental interference, as it is best represented in the United States before the New Deal, transformative constitutionalism is broad and aspirational. It want...
- Michaela Hailbronner
- 2017
The goal of new constitutionalism is to separate the democratic and economic practices by shifting economic aims from the regional and national level to the global level through constitutional framework. The purpose of this shift is to create global supremacy and promote a free capitalist system.
Oct 7, 2011 · Like originalists, new textualists believe that constitutional interpretation must start with a determination, based on evidence from text, structure, and enactment history, of what the language in the Constitution actually means.
While the idea of transformative constitutionalism first arose in the context of South Africa’s democratic transition to address questions related to the future of private law and old order legal personnel and institutions in the new constitutional dispensation, it has gained a much broader meaning both in South Africa and around the globe in ...
