South Africa’s aspirational Constitution and our problems of collective action

This article advances the somewhat novel contention that our Constitution (a) is aspirational in nature; (b) requires three critical preconditions before it delivers on its numerous promises and (c) is subject to manifold constraints that can only ever be partially overcome. It then marries three interlocking theses. The first thesis identifies the manifold constraints on individual, social and political change. These constraints can be overcome. However, change does not occur primarily through deliberation. It’s largely a function of two other processes: friction and experimentation. The second thesis – ‘the basic law qua scaffolding’ – emphasises the limitations of constitutions. The basic law qua scaffolding provides an extremely capacious normative framework within which: (i) political institutions produce public goods; (ii) associations and subpublics provide the meaningful settings for most actions; and (iii) individuals can pursue lives worth valuing. Scaffolding is thus best understood as a process of legitimation in which interpreters of the Constitution confirm (or deny) the validity of decisions taken by other actors within the realm. The third thesis contends that problems of collective action constitute the primary impediment to the production of public goods. The article then entertains proposals about how problems of collective action – politics properly understood – can be overcome

Collective action · Constitution · Deliberation · Epistemology · Law and economics · Legitimation · Normative · Political science · Politics · Realm · Sine qua non · Sociology · Human Rights and Development · Judicial and Constitutional Studies · Law · Legal Issues in South Africa