Contemporary constitutional theorists typically assume that a system of constitutional adjudication inevitably stands in tension with a majoritarian understanding of democracy. Kelsen’s influential defence of constitutional review, by contrast, goes along with an affirmation of a procedural and majoritarian understanding of democracy. Did Kelsen fail to spot the supposed conflict between constitutional review and democracy? Or did he identify a solution to the counter-majoritarian difficulty? Michel Troper has vigorously argued that Kelsen’s defence of constitutional review is confused and fails to cohere with his conception of democracy. This chapter defends Kelsen’s argument for constitutional review against Troper’s charges. It argues both that Kelsen’s case for constitutional review is fundamentally sound and that it carries the potential to make an important contribution to contemporary debates on the legitimacy of judicial control of constitutionality. Kelsen’s argument for constitutional review offers a compelling case for constitutional review that focuses on the conditions of the proper functioning of electoral democracy rather than on the protection of liberal rights.

Multi-party, representative democracy is, according to Kelsen, an intrinsically fragile achievment – one that never can nor should be taken for granted. The fragility of multi-party democracies, based on party pluralism and free, competitive elections is the topic he explores in a lesser-know work published in the mid 1930s: La Dictature du Parti (1935). It focuses upon the underlying weaknesses of European interwar democracies which make possible their transformation into party dictatorships. The chapter explores Kelsen’s broader theoretical framework and contribution through a comparative analysis with those in the contemporaneous, early work of Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (1936), which, through a critique of Kelsen’s legal positivism, developed a distinctive, sociological approach to the relationship between law and state. The comparison of the two works reveals the significant engagement of Continental political theory and jurisprudence, throughout the 1930s, with the question of the underlying fragility of European interwar democracies. It, thereby, adds depth and breadth to the study of the genesis of Kelsen’s theory of democracy allowing one to capture more vividly the argument at the core of his La Dictature du Parti: the transformation of democracy into autocracy rests not on the dissolution of the rule of law and the rise of a state without law (as for Neumann), but on the transformation of the very content of the legal system.

Chapter 3 engages with the thesis that transnationalisation of law has taken place in the development of Internet regulations, since it was invented in the 1990s. Is it true that a transnational law is developing that is largely free from state influence? What does a factual analysis reveal about the relationship between non-state governance and state regulation in addressing pressing social problems related to the ‘network of networks’? How do approaches to content and technology regulation differ between the United States and the EU? Net neutrality serves as a case study for an in-depth examination of the transnationalisation thesis in the context of the technological preconditions of free speech. In addition to the debates on net neutrality in the United States and the EU, this chapter also analyses the debate in India using the example of Meta Free Basics, which illustrates how the actions of large technology companies can lead to restrictions on freedom of expression. Does the history of net neutrality in these three jurisdictions, where regulatory solutions have been found along national territorial lines, confirm that there is a risk of developing a ‘splinternet’ and speak against a transnationalisation of the law?

Since the 1930s there have been intense debates about how far democracy can go to protect itself against its enemies. Hans Kelsen’s antagonistic relationship to militant democracy is well established in the literature and is not controversial. First, this chapter anchors Kelsen’s opposition to militant democracy more deeply and systematically in his own theory of democracy. This sheds light on the reasons why his opposition to militant democracy remained consistently immune to the defeat of democracies – as painfully observed in the 1930s – and to the conviction, shared by many of his contemporaries, that such vulnerability legitimises the prevention of anti-democratic parties from abusing the democratic process. Second, the chapter challenges the common view that Kelsen’s rejection of militant democracy would have no contemporary adherents. It discusses similarities and discontinuities between Kelsen and a new generation of thinkers who also express doubts about militant democracy. In doing so, the chapter offers a fresh look at the strengths and weaknesses of Kelsen’s perspective on militant democracy and assesses its influence on the issue in contemporary literature.

Hans Kelsen was one of the first major legal and political thinkers to argue that political parties are indispensable to democracy. This chapter deals with an important but largely overlooked aspect of Kelsen’s thinking about parties, which will be called party constitutionalism. In short, party constitutionalism refers to the idea that party organisations should be regulated by constitutional norms in order to ensure that parties are democratically organised. Kelsen developed this idea at a time when constitutions had little to say about the status of parties, and even the normative desirability of the party form was contested. After reconstructing Kelsen’s case for party constitutionalism, the chapter turns to the question of how the constitutional regulation of parties has evolved in the second half of the twentieth century. It is argued that even in countries where constitutions prescribe that parties must be democratically organised, intra-party democracy has rarely flourished. However, the sobering reality of party constitutionalism should not blind us to the lasting importance of Kelsen’s observation that democracy is ill served by elite-dominated, oligarchic parties. In fact, Kelsen’s work can help inspire a broader conversation about how parties should be organised and how their internal life can be regulated.

The manageability of the technical obstacles set out in Chapter 4 established, this chapter turns to the adaptive challenges amalgamation faces – most notably its inconceivability to the judiciary. The chapter details the maladaptive constraints that underlie the constitutional drafters’ and legal establishment’s resistance to embracing vernacular law as part of South Africa’s ‘law of general application’ or ‘common law’, as well as the urgency of overcoming such resistance. Depicting the severe decline in institutional trust and rising support for undemocratic governance amidst the public’s waning hopes of material security, the chapter argues that, to strengthen South Africa’s rule of law, constitutionalism must be founded on the vernacular legal traditions that resonate with everyday South Africans, who often feel alienated by a legal system rooted in ‘uncommon’ law. Alter-Native Constitutionalism offers a sustainable path to transformation that would counteract public disillusionment with a constitutionalism that embraces rigid colonial precedents and simultaneously restore trust in the judiciary as the last line of defence. The chapter therefore argues for judicial praxis that re-envisions courts as mediators supporting collective agency, rather than mere adjudicators, thus fostering a relational approach aligning with Ubu-Ntu and honoring the country’s diverse normative traditions and social justice aspirations.

This chapter lays out the overall rationale for the book, elucidates some of its key aspects and situates the book in relation to a scholarly field of feminist jurisprudence in India. It introduces the established convention of diversity in the field of Indian feminist jurisprudence, which this book joins with and expands. The chapter offers an illustration of the field by introducing the body of literature that the book is drawing from and contributing to and foregrounds that there are different voices in the field each of which speaks from a different locus both within and outside Indian legal academia. Simultaneously, the chapter explains the relevance of caste and how it hierarchically organises the field of intellectual labour in India.

This coda takes the form of a sample judgment that rewrites Baron and Others v Claytile (Pty) Limited and Another [2017] to tangibly illustrate the promise of Alter-Native Constitutionalism. Contrasted with the real-life judgment issued by the Constitutional Court, which relied on liberal approaches, the Alter-Native ‘judgment’ gives willing courts the necessary tools to enforce the ‘property’ rights of ‘non-owners’ and thus highlights the opportunities for equitable solutions the Court has missed, including in its real-life judgment. Emphasizing the importance of robustly applying Ubu-Ntu (rather than the insipid ‘ubuntu’ that scholars and the Court have substituted for it) and applying Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation developed earlier in the book, the opinion demonstrates existing possibilities for recognising shared rights and promoting housing as a relational, spatiotemporal ‘existence’. By reinterpreting constitutional and legislative provisions to respect indigenous onto-epistemological perspectives on land-as-housing, the Alter-Native opinion demonstrates a transformative approach to ‘property law’ that inherently critiques the Constitutional Court’s interpretation of the ‘property’ and ‘housing’ clauses largely to the exclusion of vernacular law. This Alter-Native opinion thus presents a literally embodied argument for the need for broadening restitution, addressing both enduring injustices and future possibilities over multiple generations.

While the rest of the book takes the form of a constitutional law text largely based on discussion of theory and court precedent, the prologue provides the lived, empirical day-to-day context out of which the project arose by sharing the stories of the ordinary people on whom the topics discussed have primary bearing. Moreover, given the grounded, ethnographic method from which the prologue’s scene-setting stories draw and the ‘constitutional ethnography’ to be applied more broadly as a methodology throughout the book, the prologue draws inspiration from qualitative scholarship’s emphasis on the need for researchers to state their positionality vis-à-vis the research. The prologue therefore describes the global transdisciplinary approach adopted in and through the book project which primarily builds upon critical Black, Indigenous, postcolonial and decolonial scholarship developed in the Global South and by marginalised communities in the Global North.

In Tongoane v National Minister for Agriculture and Land Affairs, the Constitutional Court of South Africa ruled that the government’s attempt to regulate property in traditional communities through the Communal Land Rights Act (CLARA) was unconstitutional. It emphasised that traditional land was already governed by indigenous ‘living law’ and CLARA sought to replace this vernacular law, a system evolved over time, with legislation. This highlighted the presence of indigenous law predating colonialism, challenging colonial notions like ‘lex nullius’ (no law) and ‘terra nullius’ (empty land), which denied indigenous Africans their rights. This chapter argues that South Africa’s post-apartheid constitutional vision fails to fully recognise and integrate this vernacular law, undermining true transformation, and instead advocates for ‘Alter-Native Constitutionalism’, which would amalgamate ‘customary’, ‘common’ and vernacular law to reflect the realities and normative convictions of most South Africans. This approach aims to rectify historical injustices and create a more just legal system, rooted in indigenous values and addressing social and economic inequities. Explicating the indigenously feminist decolonising concept of Alter-Native Constitutionalism, the chapter calls for reconstitution of South Africa’s legal framework and content to give full voice to indigenous world-sense and law-sense, advocating a shift away from Eurocentric logics and norms.

On my interpretation of Kelsen’s ‘pure’ theory of law, his basic norm must be understood as a regulative assumption, a claim about inquiry and what individuals must assume if their inquiry is into the authority of law. As such, this idea has both theoretical and practical dimensions. As a matter of theory, it requires an elaboration of authority as legitimate and attention to the way in which the relationship between those who wield authority and those subject to it can be said to be one of right rather than might. As a matter of practice, it requires attention to the way in which, in light of legal subjects’ experience of law, legal order is and should be designed with a view to vindicating its intrinsic commitment to the rule of law and its concomitant commitment to constitutionalism. However, all that cannot be had without acknowledging the drive towards substance in Kelsen’s theory, one that sacrifices its claim to be pure of ideology in the sense of political value commitments. But it preserves purity in an account in exclusively legal terms of how politics can take place in a space constructed by law, internationally as well as domestically.