A Bridge Too Far? History as Context in the Interpretation of the South African Constitution

Abstract

Judges and other interpreters of the South African Constitution are faced with the dilemma of how to achieve a semblance of objectivity in constitutional adjudication given the open-ended and often vague nature of the provisions with which they are faced. In an attempt to solve this dilemma, the judges of the Constitutional Court often turn to South Africa's history and use it as a ‘grand narrative’ — a universally accepted, meaning-giving story about the origins and purpose of the Constitution. This ‘grand narrative’ or ‘super context’ purports to limit the discretion of judges by providing the context within which the various provisions of the Constitution can be understood without recourse to the personal, political or philosophical views of judges. This attempt to deploy South Africa's recent history cannot be successful, however, because it ignores the emerging view of history as a profoundly subjective account of selected events in the past. History is just as much about the present as the past, and it reflects choices about who and what must be included and who and what excluded. The use of a ‘grand narrative’ of history in constitutional interpretation is therefore highly problematic: it presents these choices as inevitable, thereby potentially precluding different, more inclusive, understandings of the Constitution. This does not mean that South African judges should not deploy history when they are called upon to interpret the Constitution. If history is deployed not as ‘grand narrative’ but with an acknowledgement of its open-ended nature, it might assist in establishing the Constitution as a living document, a document that will adapt to changing circumstances in South African society.

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