Memory as Mantle: Evil Pasts and Judges’ Power in Germany and South Africa

Justin Collings

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Chapter 3 Memory as Mantle

Evil Pasts and Judges’ Power in Germany and South Africa

In: Comparative Constitutional History

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Justin Collings

Justin Collings
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Type:: Chapter

Pages:: 71–110

DOI:: https://doi.org/10.1163/9789004523739_005

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Abstract

Many modern constitutions have been adopted and many constitutional courts have been established in the aftermath of some great evil: fascism, colonialism, communism, apartheid, etc. These past evils provide an important reference point for constitutional interpretation, but they also provide an important basis for judicial authority. Courts wrap themselves in the mantle of memory when they invoke historic evils to underwrite their own authority. This is not always a formula for judicial activism. Memory as mantle can underscore deference as well as assertion, as illustrated in the examples of the German Federal Constitutional Court and the Constitutional Court of South Africa. This chapter explores how these two courts have buttressed their institutional authority by appealing to memory’s mantle, and it compares their protean approaches to the past with the equally versatile role of the anti-canon in American constitutional jurisprudence.

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

Series: History of European Political and Constitutional Thought, Volume: 10

Cover Comparative Constitutional History

E-Book ISBN:: 9789004523739

Publisher:: Brill

Print Publication Date:: 25 Nov 2022

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Front Matter

Part 1 Framing the Problem

Part 2 Historical Precedents and Inter-constitutional Interpretation

Part 3 A Matter of Narratives

Part 4 New Democracies and Illiberal Regimes

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Chapter 3 Memory as Mantle

Evil Pasts and Judges’ Power in Germany and South Africa

Abstract

Citation Info

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

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