ABSTRACT
This chapter addresses an age-old paradox in its heightened modern form: constitutions are the simultaneous source and product of ‘law’, but consideration of the nature and character of the ‘law’ is often strangely absent from political constitution-building processes. From a critical legal perspective, ‘law’ might be, and, indeed, often is, construed as playing a ‘thick’ role within the making of constitutions; first, by virtue of its innate normative ability to ‘give force’ to the emerging constitution; second, and in vital contrast, due to the inevitable existence of ‘constitutional indeterminacy’ and the role that adjudicative law plays in the ‘filling in’ of constitutional lacunae; and third, and highly significantly so, since law might also be perceived as entailing a duty to ‘adapt’ the rarefied – yet indeterminate – constitution to social reality (materialisation impulses).1 In stark contrast, however, where constitution-building processes are viewed as being primarily political moments, law is assigned a concomitantly ‘thin’ constitutional role and deemed to be an object, rather than a catalyst, of constitutional debate and change. In this view, the ‘active’ role of politics is ‘to make the constitution’; the ‘passive’ role of law, by comparison, is assumed simply to be one of ‘adjudicating’ upon the constitution.
