While the introduction of a justiciable constitution may, at one level, be presented as an indication of faith in the law and the judiciary and a response to past oppression, this view does not take into consideration the role played by the introduction of constitutionalism in enabling a democratic transition. Once this perspective is placed at the centre of the analysis, it is possible to see how democratic constitutionalism provides an opportunity for compromise, by postponing decisions on sensitive and potentially unresolvable questions.

On the one hand, this may be simply understood as a successful constitution-making strategy. On the other hand, it is also inherent in the nature of a justiciable constitution, in that the judicial resolution of constitutional questions rarely, if ever, forecloses on the possibility of an alternative outcome in the future. By creating a political order in which opposing parties can find their contending faiths in the constitution, and retain a belief that their understanding may in time be vindicated, the introduction of democratic constitutionalism may make possible the civilization of unnegotiable and seemingly unresolvable political conflicts.

CONSTITUTIONALISM: SELF-BINDING, REPRESENTATION AND THE LIMITS OF PARTICIPATION

Constitutionalism is commonly understood as a ‘commitment to limitations on ordinary political power’, and therefore as an essentially antidemocratic strategy or, as Robert Dahl terms it, quasi guardianship. In fact, most discussions of judicial review begin by considering the role of courts in constitutional interpretation and inevitably gravitate towards what is termed the ‘countermajoritarian dilemma’.