JOURNAL OF UWC FACULTY OF LAW | ISSN 2077-4907 | Short URL www.ldd.org.za

The Constitutional state in the developing world in the age of globalisation: From limited government to minimum democracy

Volume: Volume 12(2) - 2008

Article type: Refereed article

Author/s: Mahao, Nqosa L

Nqosa L Mahao argues that the concept of the constitutional state has its genesis in the evolution of constitutionalism in Europe. Its basic elements, of the rule of law, separation of powers, independence of the judiciary, were born of a specific agenda of restraining the holders of political power and building a state based on liberal foundations that would play only a limited role in social affairs. During the 20th century this ideology was substantially reversed with the development of the notion of a broad social writ enabling the state to harmonise formal and substantive equality.

The author argues that this trend has been the principal casualty of globalisation. Globalisation has redefined the role of the state in the developing world, weakening its mission of providing public goods and mediating social justice. In this context, it is suggested, democracy is reduced to little more than a ritual in electoral proceduralism. To combat these trends the article advocates a number of reforms, including the constitutionalisation of elements of direct public participation in certain spheres of public life and reviewing the borrowed Westminster constitutional model that has become institutionalised in many countries, to ensure effective parliamentary oversight of the executive.

About the author/s

Nqosa L Mahao

Professor and Executive Dean, College of Law, University of South Africa

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