Introducing the book’s third essential part on ‘property’, this chapter sets out Alter-Native Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation informed by vernacular law and oriented towards the everyday, ordinary South African as the ‘reasonable’ person in law. It draws on ethnography and sociolinguistics, problematising the continuities in how democratic South African law treats ‘customary law’ consistently with colonial-apartheid. A SiSwati conversation with Make Ng’Gogo frames the chapter’s exploration of vernacular law’s indigenous ethical orientation, embodied in Ubu-Ntu, as it applies to guiding not only societal organisation but also land rights – emphasising human-centred values over individualistic property rights. By first examining indigenous normative relationships with land then translating their application into critique of Constitutional Court interpretive practices, the chapter advances an Alter-Native framework that represents a paradigm shift in constitutional interpretation, privileging Ubu-Ntu’s holistic world-sense. This framework advocates reinterpretation of dignity and rights under the Constitution, moving beyond Western legal principles toward a jurisprudence grounded in indigenous natural law and relational ethics. The chapter argues for South Africa’s Constitutional Court to adopt this indigenously transformative constitutional approach to interpretation, treating vernacular law as equally legitimate to European ‘common law’ and thereby making truly transformative socioeconomic outcomes more possible.

This chapter explores the relationship between Hans Kelsen’s philosophical relativism and his theory of democratic leadership. First, it argues that Kelsen’s theory of democratic leadership cannot be fully understood unless placed within his broader political thought, which includes a commitment to philosophical relativism. Second, it suggests that Kelsen provided an original answer to the puzzle of democratic leadership that is significant in its own right. Writing during the rise of fascism, Nazism, and Soviet communism, Kelsen made a crucial distinction between autocratic and democratic forms of leadership: while autocratic leaders are seen as possessing absolute knowledge and, therefore, hold unlimited power, democratic leaders are thought to carry only relative truths, and their power is consequently limited. Kelsen demonstrated that if we believe moral absolutes exist, it is logical to have an absolute leader with unfettered power. In contrast, if we hold that moral absolutes are inaccessible to human knowledge and only relative truths exist, it follows that leaders should have limited power and be subject to constant scrutiny and control. Contrary to the common characterisation of Kelsen as an abstract and idealist thinker, this chapter shows that his approach to political leadership was normative yet realist. Rather than eliminating leadership, Kelsen associated democracy with multiple, temporary leaders who have limited and relative political power.

I revisit how my practice of adda instituted a counter-hierarchical, shared practice of knowledge making which helped to show the diverse locations and experiences that produce a field of Indian feminist jurisprudence. I recount how my performances of adda helped to carve out specific conversations—in authors’ texts and lives—to show how these are conscious experiences of law that account for the diverse organisations of mutual law–life relations in an Indian post-colonial context. I draw this book to a close by reaffirming that the field of Indian feminist jurisprudence is a diverse body of knowledge that is produced out of the disparate lived practices of varied groups of people who live different lives and relate with law differently; and that the performances of emplaced conversations help us attend to, and recognise, such differences in law-life relations.

This chapter argues that the Afrobarometer survey findings indicating South Africans’ preference for housing over land are easily misunderstood. Supported by modern science, it emphasises human interconnectedness as evidenced and grounded in land-based relationships. The chapter therefore critiques the limited world-sense within which ‘property’ is conceived in Ramuhovhi and Malan and, instead, amalgamates vernacular, ‘(un)customary’, and ‘(un)common’ law to illustrate how relationships, ‘seen’ particularly through the spatiotemporal lens of Ubu-Ntu, might deepen our constitutional understanding of ‘property’. It thus shows how the concept of ‘house’ (beyond physical structure) – perceived in ‘vernacular time’, rather than Euromodernity’s ‘colonial time’ – equitably shapes ‘property’ rights, linking them to multigenerational ‘survivance’ and thereby integrating Ntu principles into contemporary legal interpretations. Hence, the chapter concludes the book by demonstrating how embracing the vernacular law conceptions of ‘human(e) existence’, ‘rights’ and ‘house’ would transform the sociolegal reality for South Africans by decolonising it and achieving sustainable socioeconomic change. Returning to encounters in Mbuzini, the chapter ends by highlighting young people’s understandings of Ubu-Ntu and ‘housing’ amidst colonial law’s afterlives and vernacular law’s continued erasure. It contends that true transformation demands respecting the country’s constitutional commitments by genuinely representing all South Africans’ diverse normative ideals.

This chapter formulates the research question and clarifies the critical methodological issues pertaining to the analysis. This is important because the book aims to bring together science and technology studies, sociological systems theory and jurisprudence The topic of the book is then introduced by giving an overview of all the chapters, making clear that a common thread runs throughout the book and that the argument addresses all of the theoretical, empirical and practical aspects of the research question posed at the beginning.

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.

The notion of political compromise in party democracy is a cornerstone of Kelsen’s democratic theory. In the legislative, he argued, one party (or several parties) constituting a majority need(s) to somehow get along with a party (or several parties) in the minority if democratic government is to work and last. However, this vision goes against common sense understandings of what it means to have a democratically elected majority; it is also likely to raise some eyebrows among majoritarian theorists of democracy. This chapter explores whether Kelsen’s central idea can possibly be redeemed. Unlike Kelsen’s multiple critics in contemporary democratic theory, it argues that his account of compromise rests on numerous ambiguities that leave it underdetermined on both normative and institutional levels. It also argues and demonstrates that the most plausible understanding of Kelsen’s imperative to compromise rests on the notion of respecting the members of parties in the minority as co-rulers – an intuition derived from a Rousseauian conception of democracy as collective self-rule and adapted to societies characterised by persistent conflicts of interest and moral disagreements. It concludes that, despite its shortcomings, Kelsen’s valorisation of political pluralism, in the legislative and in the public arena, remains an important source of arguments for a time often characterised as a ‘crisis of democracy’ and in the face of rampant anti-partyism.

Chapter 6 reconstructs the technology-specific legal contours of freedom of expression in the Internet age, presenting empirical evidence of the growing importance of technology for legal practice and regulation. Since data-processing technology is a prerequisite for free speech, the starting point is privacy law. An important distinction is made between data integrity and network integrity and the discussion on net neutrality and the open Internet is revisited. The case law of the ECtHR on Article 10 ECHR is also examined to see if there is a tendency to recognise an independent ‘right to transmit’. Moreover, the activities of the Internet Corporation for Assigned Names and Numbers (ICANN) can be seen to produce technology-related standards relevant to the freedom of expression. ICANN, which is responsible for routing data packets to their destination, controls the ‘master key’ to the entire global Internet and can thus influence the conditions under which freedom of communication is possible. Finally, the chapter addresses the technical standards for the Internet developed by the independent Internet Architecture Board and the Internet Engineering Task Force, which are also crucial for the freedom of expression.

Chapter 4 critically examines how the ECtHR has conceptualised the technological conditions of freedom of expression in its case law. The ECtHR’s practice only superficially acknowledges differences between the various technological media, treating technology as a ‘black box’ rather than analysing in depth the interactions between the technological medium and the process of receiving and transmitting information. While this may have been unproblematic in the age of the press and broadcasting, it needs to be revised now that the Internet is the leading medium, requiring a shift in perspective from legal doctrine to the social sciences. Correspondingly, this chapter reviews two leading approaches to the relationship between technology, society and law: the media theory of law and STS. The media theory of law provides a remarkable general explanation of how the historically dominant means of information dissemination influence the law, but takes an uncritical view of the technology involved and underestimates normative social structures in the digital environment. In contrast, the strength of STS lies in its use of detailed case studies involving complex interactions between society and materiality/technology via the concept of co-production, but offers a dissatisfactory treatment of the role of law.

Chapter 2 opens the study of free speech in a globally networked digital environment by clarifying the meaning of the term ‘constitution’. Under the heading of transnational constitutionalism, intense discussions have taken place in recent years about constitutional thinking that seeks to break free from statehood and formalism. The question of the constitutional subject is of great importance here. In the twenty-first century, nation-states are still the primary constitutional actors, as they have been since the revolutions of the eighteenth and nineteenth centuries. The contemporary era has also witnessed the emergence of transnational corporations, which have developed into powerful players within a globalised economy. As telecom service providers, equipment manufacturers, or platform operators, they have a particularly significant influence on the conditions governing freedom of expression. According to Gunther Teubner, transnational corporations should be conceived of as constitutional subjects. But what does this mean on the theoretical and practical levels? How can factual developments on the Internet be related to processes of producing constitutional norms? How should the relationship between state-centred and societal constitutional legitimacy be conceptualised? These questions are addressed within the framework of transnational legal theory.

United by their realistic approach to the study of democratic politics, Hans Kelsen and Joseph Schumpeter similarly sought to de-ideologise ‘classical’ accounts of popular sovereignty. Both developed an analytical framework to explain how modern democracy, based on parties and the electoral selection of representatives, functions and realises its ideals. Both emphasised that democracy lasts only if it successfully generates a ‘compromise’ between the contingent majority and the temporary minority (in the terminology for Kelsen) or if current majorities exercise ‘self-control’ (in the language of Schumpeter). However, neither explained the mechanisms that induce democratically elected majorities to limit themselves in the practice of governmental power. The chapter first charts the innovations introduced by Kelsen and Schumpeter into our understanding of democracy; then, it teases out their views on how majorities abstain from aggrandising their power beyond some limits. For both, such limits must be self-enforcing and observing them must constitute an equilibrium. Yet, a proper understanding of how this equilibrium emerges remains one of the greatest challenges for contemporary scholars of democracy. ‘Compromise’ or ‘self-restraint’ is almost definitionally a requisite of democratic politics, but it cannot be imposed from outside, and it cannot just follow from agreements about certain rules, unless those rules are self-enforcing. As the chapter explains, it must be in the best interest of the democratic rulers to stop monopolising power given the potential reactions of the opposition, and it must be in the best interest of the opposition to participate peacefully given that the incumbent stops. Despite the significant progress in the normative and empirical study of democracy over the past several decades, the greatest challenge faced by Kelsen and Schumpeter has not been completely resolved.