This chapter offers a description of the method. Elaborating on the tradition of adda, the chapter explains its significance within post-colonial thought and life in India. It then explains how adda is shaped as a method in the book by drawing on and joining insights from the works of scholars who are located within the disciplines of law and/or the humanities. The chapter provides a detailed description of how diverse scholarly works of post-colonial, feminist and jurisprudential thought are brought together and then enacted as field research for this book.

Chapter 7 addresses changes in fundamental rights within the tension between social evolution and constitutional stability. How is constitutional thinking responding to the challenge posed to fundamental rights by non-state actors? How can we understand the increasing importance of technology for freedom of expression? These questions lie at the heart of the sociological view of fundamental rights as social institutions arising from modernisation. This perspective emphasises the function of fundamental rights and the emergence, growth, and impact of these norms, in contrast to the state-centred, mostly defensive understanding of fundamental rights that prevails in legal practice. The Swiss legal system provides an enlightening case study for the socially based expansion of fundamental rights. At the end of the 1950s, the Federal Supreme Court was a global pioneer in recognising various unwritten fundamental rights, resolving the tension between social change and constitutional stability through the imposition of strict conditions on the acknowledgement of unwritten rights. This makes it a remarkable example of how a national supreme court interprets its role as guardian of the development of fundamental rights with restraint, while appealing to social acceptance when democratic legitimacy was formally lacking.

This volume challenges conventional interpretations by demonstrating that Hans Kelsen was far from being a purely formalist thinker. Instead, it highlights his profound and enduring engagement with the threats facing constitutional democracies. The political and institutional upheavals of interwar Europe significantly influenced Kelsen’s evolving vision of democracy, as this volume shows. His contributions to twentieth-century democratic theory include groundbreaking insights into multiparty systems, mechanisms of moderation, minority protections, and judicial review. Furthermore, Kelsen’s reflections on the crises and collapses of democracies during the 1930s remain strikingly relevant, offering valuable perspectives on contemporary challenges such as polarisation and populism. This title is also available as Open Access on Cambridge Core.

This chapter advocates for Alter-Native Constitutionalism’s prioritisation of vernacular understandings of property and housing within South African law, challenging the colonial legacy of ‘lex nullius’ that undermines Black South Africans’ land claims. It critiques the uncommon law’s failure to recognise the Ntu’s historically-rooted, multigenerational land-based relationships and emphasises the interconnectedness of property and housing. The chapter uses Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation set out in Chapter 6 to critique the ways in which, in its precedents, the Constitutional Court has interpreted the property and housing clauses to the near-complete exclusion of vernacular law’s layered property rights system. It argues that courts, as part of the state, should enforce these constitutional protections using Alter-Native Constitutionalism to uphold vernacular land rights. Further, arguing that the courts must prioritise equitable housing access over strict property rights, the chapter uses the Salem case’s limited ‘sharing model’ attempts vis-à-vis restitution to show that vernacular law’s ‘access-to-occupation’ could be feasibly extended throughout South African ‘property law’ in a manner that would reduce forced evictions and balance state, ‘owner’ and beneficial occupiers’ interests. The chapter thus illustratively pushes for judicial interpretations that better reflect ordinary people’s socio-economic realities, needs and sociocultural values, as well as constitutional commitments.

At first glance, Hans Kelsen (1881–1973) remains a marginal figure within US political discourse. However, this chapter argues that revisiting Kelsen is crucial if we are to understand present-day intellectual tendencies supportive of autocratic threats to US democracy. A neglected, yet pivotal, anti-Kelsenian moment proves decisive among influential right wing intellectuals, so-called ‘west coast’ Straussians based at California’s Claremont Institute, who enthusiastically supported Donald Trump and embraced his authoritarianism. The lawyer and Claremont affiliate John Eastman, for example, worked to prevent a peaceful transfer of power to then President-elect Joe Biden in 2020 to keep Trump in power. Trump’s Claremont Institute defenders have absorbed crucial facets of Leo Strauss’s critical rejoinder to Kelsen: Strauss’ longstanding anti-Kelsenianism has morphed into their subterranean anti-Kelsenianism. To validate this claim, the chapter revisits Strauss’ complicated theoretical dialogue with Kelsen, while also highlighting crucial moments in the arcane history of postwar American Straussianism. What is gained theoretically, and not just historically or politically, by doing so? The Claremont Institute’s apologetics for Trump corroborate Kelsen’s worries that attempts to revive natural law under contemporary conditions invite autocracy.

Centring the devastating case of five-year-old Michael Komape’s drowning in a pit latrine at school, this chapter discusses the ‘dis/empowerment paradox’ inherent in South Africa’s ‘transformative constitutionalism’. Through the example of the Komapes’ 2018 case against the Minister of Basic Education (2018), it reveals the limitations of transformative constitutionalism rooted in Euro-American liberalism, which resonates with a neoliberal political economy that has failed to relieve the impoverished majority of their dehumanising precarity. While the chapter highlights the failure of the South African government to relate and respond to the suffering of the people it is meant to serve, more profoundly, it exposes the limitations of transformative constitutionalism due to its inability to even ‘see’ (let alone, validate) the world-sense of its majority population as legitimate law-sense. The Komape case thus reveals three key insights: (1) the resistance of private law to transformative ideals, (2) the reluctance of South Africa’s legal culture to embrace decolonial transformation and pluralism, and (3) the tension(s) between the legal consciousness of ordinary South Africans and the dominant legal culture. The case therefore underscores the need for Ntu Constitutionalism: a system grounded in indigenous normative priorities and robustly representative of South Africa’s marginalised communities and their needs.

Chapter 5 addresses these weaknesses by combining STS with sociological systems theory, which provides a persuasive account of law in society, but has been criticised as technology-blind. This does not mean, however, that systems theory lacks the means to conceptualise the interface between the materiality of a distribution medium (e.g. the Internet) and the sociality of communicative systems (e.g. law), since structural coupling provides the means to explain how operatively closed systems can relate to each other, e.g. the sphere of technical materiality (the technosystem) and the sphere of communicative sociality (society and its subsystems). A separation between the material and the social is the prerequisite for adopting a critical or normative position vis-à-vis digital media, enabling us to empirically study the diverse interrelations between the two spheres in online communication. To do so, technologies must be understood as artefacts possessing affordances, that is possibilities and constraints, raising the question of how digital technologies acquire affordances. The final question concerns the concept of normativity in the digital ecosphere, namely whether normative expectations about digital technologies can emerge. Since normative expectations structure the legal system, our answer will explain the nature of the structural coupling between law and technology.

Hostility towards parties has never ceased; revisiting Hans Kelsen’s ideas is particularly significant today when critiques of parties are meeting the revival of the myth of People as One, which Kelsen devoted much of his work as a legal scholar and political theorist to opposing. Kelsen addressed the issue of parties at two significant historical moments when the constitutional government was succumbing to the assault of autocracy (Fascism and Nazism) and revolutionary experimentations (Bolshevism) and when parties regained momentum with the Cold War. These were two very different circumstances: in the former, the issue was opposing and resisting monocratic dictatorship; in the latter, the issue was defending party pluralism within liberal democracy itself. Kelsen never resorted to ‘militant democracy’ to protect democracy. The reason was both theoretical and empirical. As a ‘formalist’, Kelsen kept substantive politics out of procedural politics, which he considered normative or ‘not metaphysical’ because its task was channelling public doing and not achieving certain specific goals; the sole purpose of the rules of the game was the exercise and reproduction over time of political freedom. Therefore, pluralism, legal equality, and individual liberties were non-negotiable norms of democracy, whose process was based on the spirit of compromise and majority rule.