TRANSFORMATIVE CONSTITUTIONA­LISM: COMMON PATHWAY FOR A SUSTAINABLE FUTURE?

7.-8. Juli 2022, Leuphana Universität
6th biannual German-South African Dialogue on Democracy
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In 2015, the United Nations Sustainable Development Goals called for profound societal transformation processes involving the recon-ciliation of social, environmental and economic development, the consideration of impacts beyond national borders, and the freedom rights of future generations. In this respect, law – particularly national constitutions – and the judicial system can play a key role in accom-panying these processes of societal transformation.

In Germany, the Grundgesetz (Basic Law) and its fundamental rights have traditionally been interpreted as an “objective order of values” (objektive Werteordnung) with fundamental rights providing a strong shield against state interference, while the state's duty to protect remains less developed. This has been turned upside down with the Constitutional Court’s ruling in 2021, which declared that Germany had not sufficiently stipulated concrete measures to mitigate climate change beyond 2030 and had thus failed in its obligation to safeguard freedom rights in the future.

In contrast, in South Africa, the legal doctrine of transformative constitutionalism has developed, including distributive justice, a substantive understanding of equality, the horizontal application of fundamental rights, participatory democracy, and judicial enforce-ment of the state's affirmative duties. Yet, concerning climate change, the Constitutional Court has yet to pronounce on whether the state is doing enough to mitigate its effects.

Against this backdrop, the conference seeks to understand the theoretical foundations and current expressions of transformative constitutionalism in light of the SDGs. While South African studies promise a theoretical understanding of transformative constitutio-nalism, the decision of the German Constitutional Court might serve as a strong example of actual transformative constitutionalism.