An ethical (anti-)constitutionalism? Transformation for a transfigured public

Abstract

How do we critically engage South African constitutionalism today? This is the basic question that will animate this article. In order to investigate this, I will specifically look at the Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution) from the perspective of an ethics of liberation. This investigation will proceed by way of two main points of discussion, namely an exposition of Enrique Dussel’s formulation of an ethics of liberation and an application of this ethics of liberation related to the Constitution as critique. The three fundamental principles – material, formal, feasible – of an ethics of liberation will be discussed and applied, in the form of three questions, to the current constitutional order. These questions will then be discussed and answered in order to show how the Constitution came into being due to a process of unethical feasibility.