Co-operative Government in South Africa's Post-Apartheid Constitutions: Embracing the German Model?

33 Verfassung und Recht in Ubersee 432 (2000)

Univ. of Wisconsin Legal Studies Research Paper No. 1538

26 Pages Posted: 23 Jan 2020

See all articles by Heinz Klug

Heinz Klug

University of Wisconsin Law School ; University of Wisconsin - Madison

Date Written: 2020

Abstract

Constitutional borrowing became a major feature of the post-cold war process of state reconstruction Regardless of the form of constitution-making adopted in each particular case, whether new constitutions were negotiated in a round-table process, most common in eastern Europe, or among parties in a democratically elected constitutional assembly, as in South Africa, the practice of borrowing has been ubiquitous Legal transplants which result from this practice provide an opportunity to engage in a form of comparative legal analysis that, in my view, demonstrates how both the act of borrowing and subsequent outcomes have more to do with the politics of the receiving entity than with the application and meaning of the borrowed form in its original context There is however another possibility for the comparative project, and that is for the donor system to view the ways in which its borrowed form is applied in the new context, providing an opportunity to consider inherent and unchartered alternatives In this paper I will consider South Africa's "borrowing'' and "adaptation" of the German model of constitutional relations - particularly with respect to the division of legislative power - between the central and regional governments, as a way to both explore the question of constitutional borrowing and also to consider, conjecturally, how this experience may reflect back on developments within the German system.

Keywords: south africa, constitution, constitution-making, germany

JEL Classification: K10, K33

Suggested Citation

Klug, Heinz, Co-operative Government in South Africa's Post-Apartheid Constitutions: Embracing the German Model? (2020). 33 Verfassung und Recht in Ubersee 432 (2000), Univ. of Wisconsin Legal Studies Research Paper No. 1538, Available at SSRN: https://ssrn.com/abstract=3523240

Heinz Klug (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

University of Wisconsin - Madison ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

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