Volume: Volume 10(2) - 2006

Article type: Refereed article

Author/s: Fitzpatrick, Peter

The article provides a provocative analysis of the emergence of the 'new constitutionalism'. The author argues that, in one of its forms, one finds an explicit instrumental subordination of democracy, human rights and the rule of law to the market, to deregulation and privatisation.

This new constitutionalism is transforming core institutions of the traditional constitutional order in the direction of a technocratic state. The new constitutionalism follows the occidental template of the sovereign nation in an attempt to both ground and delimit the sovereign nation in its relation to the international. That claim enables the particular nation to assert some ultimate power over its domain. This claim to sovereignty is not seen as resistant to, or contradictory to, the subordination of tenets like democracy to neo-Iiberalism. The South African constitution, it is argued, does not escape this conundrum.

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