Constitutional law and ideology: The mechanism component of ideological critique
Put simply, the purpose of this thesis is to ask and answer the following question: does legal ideology, as evinced by the creation of legal meanings in recent Canadian and South African constitutional jurisprudence, reinforce ‘relations of domination’ and if so how? Samples of recent Canadian and South African jurisprudence are examined to determine whether their creation of legal meanings sustain patterns of social inequality. This paper has chosen to examine legal ideology as it is important to determine not only whether law creates meaning through legal discourse, but whether this discourse plays a role in the production or reproduction of social relations. In order to answer its question, the thesis employs John B. Thompson's ‘depth hermeneutical’ procedure, as it pays particular attention to the act of interpreting ideology. This procedure consists of three phases: (i) social analysis; (ii) discursive analysis and (iii) interpretation. The ‘social analysis’ phase outlines the social conditions and backdrop underlying the adjudication of Canadian and South African constitutional jurisprudence. The ‘discursive analysis’ examines whether ideological modes [i.e. legitimation, dissimulation, unification, reification and naturalization] and ideological strategies [such as inversion, displacement and performative contradiction] can be seen to reinforce the relations of domination depicted in phase one. The final phase demonstrates how legal meanings serve to sustain relations of domination. This thesis concludes that legal ideology in Canadian and South African constitutional jurisprudence reinforces relations of domination through the operation of various ideological modes and discursive strategies. As this thesis and its conclusion in effect delineate the “mechanism” component of ideology inquiry or critique i.e. identifying how ideology operates, it admittedly leaves open and unanswered the important question of ideology's genesis i.e. why ideology exists.