This article draws on critical racial theory and critical legal theory to read and critique the Supreme Court of Appeal decision of Erasmus AJA in BoE Trust Limited NO & Others 2013 3 SA 236 (SCA). It will focus in particular on the controversial legal and racial policies reflected in the reasoning of the decision. In particular, he is critical of the judge`s avoidance of dealing directly with the constitutional and political implications of testamentary provisions of racial exclusion. Three specific features of the judgment are highlighted as problematic in the note: first, the rhetorical steps and “techniques of legal interpretation” by which the judge escaped the fundamental legal texts governing the case in which a racially discriminatory provision is included in a will, and the substantive reasoning and normative decisions to which these texts necessarily invite. Second, how the evasion of these legal texts shows, or perhaps even facilitates, some circumvention or concern about the horizontal application of the Bill of Rights, which explicitly prohibits (racial) discrimination by private non-state actors. And third, how the judgment lacks a firm rejection of racism by pursuing a formalist legal approach in which the basic assumptions of liberal legalism and capitalism are seen as natural, normal, and immutable. The uncritical admiration of the common law in matters of succession (and in particular the principle of freedom of testimony) by judgment and its denial of a more substantive and constitutionally imbued mode of argument and jurisprudence generally reflects a conservative or traditional view of the law. It is suggested that this conception of law is problematic in our current post-apartheid context for two central reasons: it is in tension with the transformative constitutionalism project and prevents the emergence of more critical racial jurisprudence for post-apartheid South Africa. While the idea of transformative constitutionalism first emerged in the context of South Africa`s democratic transition to address issues related to the future of private law and legal personnel and institutions of the old order in the new constitutional regime, it has gained much wider importance both in South Africa and around the world in the new millennium. This article reflects the multiple meanings, uses and criticisms of transformative constitutionalism and its relevance as a model for African constitutionalism in general.

Given the current challenges to constitutionalism, she argues that ensuring the continued functioning of democracy is as important a dimension of transformative constitutionalism as the application of social rights. Ultimately, this suggests that we should conceive of transformative constitutionalism as a conceptual arena in which we can develop a socio-legal understanding of how a particular constitutional order emerges and use it as a criterion for judging and critiquing the role of constitutions in advancing the cause of social justice. Just as it led the philosophy of science to focus on scientific practice, the abandonment of all fundamentalist efforts has already begun to make political philosophy a keen observer of the new way in which constitutional law is practiced. But, paradoxically, lawyers and jurists are not the ones who understand this best. In addition to the analysis of the jurisprudence that has resulted from the expansion of constitutional jurisdiction and taking into account the evolution of international and regional law, the progressive globalization of constitutional law requires a comparison of the constitutional laws of different nations. According to Waldron, the product of this new jurisprudence can be considered ius gentium. This case law is not as well established as one might think. But it can be developed on the basis of practice, which is to identify standards. As abstract types of best practices (and norms in particular) of constitutional law from around the world, they are only a source of law in the substantive sense, not in the formal sense. They therefore belong to what I would call a “second-order legal positivity”. In this article, I will develop a model for determining global norms of constitutional law at the methodological and epistemological levels. The stakes could not be higher.

Post-war political and economic institutions are under unprecedented pressure. The social coalitions that supported them are collapsing. Welfare state capitalism is in retreat, liberal institutions are under siege. Right-wing populists cement their power and consolidate their influence over political and legal institutions around the world. The answer to these historic changes cannot be a return to the status quo that drove them in the first place.