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Scales of Memory - Constitutional Justice and Historical Evil (Hardcover)
Loot Price: R3,366
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Scales of Memory - Constitutional Justice and Historical Evil (Hardcover)
Series: Oxford Comparative Constitutionalism
Expected to ship within 12 - 17 working days
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Since the Second World War, constitutional justice has spread
through much of the democratic world. Often it has followed in the
wake of national calamity and historical evil - whether fascism or
communism, colonialism or apartheid. Unsurprisingly, the memory of
such evils plays a prominent role in constitutional adjudication.
This book explores the relationship between constitutional
interpretation and the memory of historical evil. Specifically, it
examines how the constitutional courts of the United States,
Germany, and South Africa have grappled, respectively, with the
legacies of slavery, Nazism, and apartheid. Most courts invoke
historical evil through either the parenthetical or the redemptive
mode of constitutional memory. The parenthetical framework views
the evil era as exceptional - a baleful aberration from an
otherwise noble and worthy constitutional tradition. Parenthetical
jurisprudence reaches beyond the evil era toward stable and
enduring values. It sees the constitutional response to evil as
restorative rather than revolutionary - a return to and
reaffirmation of older traditions. The redemptive mode, by
contrast, is more aggressive. Its aim is not to resume a venerable
tradition but to reverse recent ills. Its animating spirit is not
restoration, but antithesis. Its aim is not continuity with deeper
pasts, but a redemptive future stemming from a stark, complete, and
vivid rupture. This book demonstrates how, across the three
jurisdictions, the parenthetical mode has often accompanied
formalist and originalist approaches to constitutional
interpretation, whereas the redemptive mode has accompanied realist
and purposive approaches. It also shows how, within the three
jurisdictions, the parenthetical mode of memory has consistently
predominated in American constitutional jurisprudence; the
redemptive mode in South African jurisprudence; and a hybrid,
parenthetical-redemptive mode in German constitutional
jurisprudence. The real-world consequences of these trends have
been stark and dramatic. Memory matters, especially in
constitutional interpretation.
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