Stanford Journal of International Law
demosprudence, South Africa, democratic constitutionalism, redemptive constitutionalism, positivity theory
This article critically examines the debate over demosprudence. It adopts a comparative - specifically South African - perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive constitutionalism. All three themes are connected by the notion that "ordinary citizens, social movements and political parties make claims on the Constitution, arguing what the Constitution truly means, and calling for its restoration and its redemption." This article identifies examples from the South African Constitutional Court's jurisprudence that reflect a demosprudential approach and the themes identified by Balkin to argue that demosprudence is a key feature of the Court's approach to adjudication and part of a self-conscious effort by the Court to develop and enforce constitutional norms through non-judicial channels and mechanisms.
Brian Ray, Demosprudence in Comparative Perspective, 47 Stanford Journal of International Law 111 (2011)