Transformative Constitutionalism or Feminist Constitutionalism? Advantages of a Transformative Constitutional Adjudication

Abstract

Transformative constitutionalism is a current of legal thought based on the belief that constitutional judges can play a key role in promoting social change and expanding constitutional rights. Another current, feminist constitutionalism, seeks to remedy deficiencies resulting from the failure of the law and constitutions to sufficiently protect the rights of women. These two constitutionalist currents could be regarded as constituting an unnecessary conceptual separation, since they share a fundamental convergence in their view of the important role constitutional judges can play in the advancement of women’s rights. This note argues that the underlying principles of the various currents of constitutionalism rest on the same legal foundation, that is, a legal system comprised of a constitution with normative force and an institutionalized system of constitutional justice. As a result, the practice of transformative constitutional adjudication is a more realistic and constructive means by which to foster transformative social change than either of the aforementioned constitutionalisms since it does not require the institutionalization of a specific constitutional framework. All that is required is the transformative conviction of the constitutional judges themselves. This note is organized in the following way: first, I analyze the concept of constitutionalism in general; second, I explain transformative constitutionalism; third, I describe feminist constitutionalism; fourth, I propose the concept of transformative constitutional adjudication that combines principles from both of the previously reviewed constitutionalisms; fifth, I examine eight specific cases from various countries where transformative constitutional adjudication was employed in the resolution of the constitutional issue raised.