Vol. 7 No. 9 (September 1997) pp. 425-427.
 
RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER by Dawid Van Wyk, John Dugard, Bertus de Villiers and Dennis Davis (Editors). New York: Oxford University Press, 1996. 720 pp. Cloth $115. ISBN 0-19-826225-6.
 
Reviewed by Stacia L. Haynie, Department of Political Science, Louisiana State University.
 
 
When RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER arrived I expected an exceptional work based on the editors alone. Each is an outstanding scholar of South African jurisprudence; indeed Van Wyk, Dugard and de Villiers are somewhat legendary. But I had not anticipated the breadth of this volume. The book is a "War and Peace" of constitutional development. Okay, I confess I've never actually read all of "War and Peace" (actually I've never read any of it; I did see about 20 minutes of the miniseries), but I've gathered it is a sweeping epic. So is this book.

Despite its title, the book is truly a comprehensive text on the comparative constitutional development of rights and liberties with particular focus on the United States, Canada, India and Germany. It gives additional attention to constitutional development in Brazil, the Netherlands, New Zealand, Nigeria, Portugal, Senegal, Sierra Leone, Somalia, Spain, Sri Lanka, Sweden, Switzerland, Tanzania, Trinidad and Tobago, Turkey, Uganda, and the United Kingdom, to name a few! While none of these is treated as comprehensively as the United States, Germany and India, this is truly one-shop stopping for students interested in comparative constitutional analyses of rights and liberties.

The text evaluates various legal works and their impact on the decision-making process that culminated in the fundamental rights of the 1993 Interim South African Constitution. While the South African Juta Press first published the text in 1994, Oxford wisely reprinted it in 1996, but prior to the adoption of the 1996 South African Constitution. Despite this, there are few and minor differences between the 1993 Interim Constitution and the final version adopted in 1996. Thus despite the publication date, those interested in the motivations behind the new South African legal order should not be dismayed.

This text should prove particularly useful to two groups of scholars. The first would be those interested in the creation of the new South African constitution in particular and developing democracies more generally. The second would be those interested in comparative constitutional development. Some of the chapters contain invaluable comparative analyses of fundamental rights and liberties across a number of countries.

The text, at 663 pages, exclusive of the extensive 30 page bibliography and the reprinted fundamental rights of Chapter 3 of the South African Constitution, is too comprehensive to cover completely in this short review. The initial chapter discusses: various approaches to constitutional interpretation including Borkean originalism and Ely's political process theory for the United States; the Canadian shift from the "similarly situated test" to the "purposive approach" in equality cases; a thorough analysis of Indian judicial activism and public interest law; and a comprehensive overview of the German Basic Law and the interpretation of rights.

The authors then assess how these theories could potentially guide judges in the interpretation of the South African Constitution. Indeed, sections 1 to 3 of Chapter 3 of the Constitution specifically dictate guidelines for interpretation of fundamental rights. Section 1 requires that interpretation of the provisions must "promote the values which underlie an open and democratic society." Section 2 demands that challenged laws should "be construed as having a meaning in accordance with [a] more restricted interpretation." Section 3 requires interpretation to adhere to the "spirit, purport and objects" underlying the entrenched rights of Chapter 3. While these sections attempt to clarify the approaches to be used in constitutional interpretation, individual judges will obviously vary in their interpretations of the "interpretation sections!" This chapter alone, by Davis, Chaskalson and de Waal, is an incredibly impressive work.

The second chapter by Van Wyk is a chronological and political history of the adoption of the South African Constitution that proceeds from de Klerk's watershed speech of February 2, 1990. It follows the events set in motion on that day to the eventual adoption of the Interim Constitution. A brief analysis of the entire constitution follows. De Villiers BIRTH OF A CONSTITUTION (Juta Press 1994) is a more comprehensive analysis of the genesis of the new constitution, but Van Wyk's political analyses are impressively concise and thorough.

A chapter on International Human Rights by John Dugard follows. This chapter basically mirrors the previous ones, providing a history of the development of international human rights and its ultimate effect on the South African constitution. Section 231(4) of the South African Constitution provides that "[t]he rules of customary international law binding on the Republic, shall, unless inconsistent with this constitution or an Act of Parliament, form part of the law of the Republic." As Dugard notes, this basically confirms the common-law position. The constitution remains supreme, but it does elevate the status of international law.

The remaining chapters focus on the fundamental rights contained in Chapter 3 of the Interim Constitution including equality and equal protection; personal rights; freedom of expression; of assembly; of association; administrative justice; procedural rights; labor; property, land and environmental rights; family rights; culture, education and religion; and social and economic rights. Within each chapter, the various authors provide an international and comparative analysis of these fundamental rights among differing nations and the potential or actual influence of these histories on the South African experience.

For example, the chapter on personal rights includes analyses of the protection of life, freedom and security of the person, privacy and freedom of movement. An initial analysis of the international law perspective on these issues precedes a discussion of the domestic laws of Germany, India, the US, Canada, Ireland and Germany.

The authors do not always tie the international human rights perspectives and the comparative constitutional analyses to the South African experience. Indeed in some cases, it is unclear why certain countries are included and other countries excluded. Moreover, the breadth of the book demands relative brevity in the comparative analyses, and thus a certain level of superficiality is inevitable. On the other hand, the immense bibliography and extensive footnotes are a wealth of information for those scholars interested in pursuing more detailed evaluations.

This text is a veritable cornucopia of international and comparative law analyses as well as a comprehensive insight into the new South African legal order. While the sticker price ($115) may deter some individuals and, I would venture, the vast majority of poverty-stricken graduate students, at a minimum insist that your library purchase this one. It is well worth the investment.


Copyright 1997