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Karl E Klare
To cite this article: Karl E Klare (1998) Legal Culture and Transformative Constitutionalism, South
African Journal on Human Rights, 14:1, 146-188
KARL E KLARE**
'(I]t would be foolish to deny that the judicial process, especially in the field of
constitutional adjudication, calls for value judgments in which extra-legal considerations
may loom large.'
Justice J C Kriegler2
FOREWORD
INTRODUCTION
This paper grew out of two presentations to CALS Judges Conferences (at Magaliesburg,
respectively on January 23-25, 1995, and January 29-31, 1996). I am deeply indebted to the
Centre for Applied Legal Studies for its generous invitations to be associated with it and to
participate in these and other conferences.
George J. & Kathleen Waters Matthews Distinguished University Professor & Professor of
Law, Northeastern University, Boston, USA.
I State v Makwanyane, 1995 (6) BCLR 665 (CC), at para. 349.
2 !d., at para. 207.
146
(1998) 14 SAJHR 147
The most obvious is that, for better or worse, the negotiated political
foundation upon which democratic transition in South Africa rests in-
cludes promulgation of a justiciable Bill of Rights. But the decision to
entrench rights-based judicial review is only part of the story. In Etienne
Mureinik's memorable words, democratic transition in South Africa is
intended to be a bridge from authoritarianism to a new culture lilf justi-
fication, 'a culture in which every exercise of power is expected to be
justified ..3 Among types of law-making, adjudication is, or is supposed
to be, the most reflective and self-conscious, the most grounded in rea-
soned argument and justification, and the most constrained and struc-
tured by text, rule, and principle. We may therefore legitimately expect
constitutional adjudication to innovate and model intellectual and insti-
tutional practices appropriate to a culture of justification. Continued
attention to adjudication should accordingly illuminate South Africa's
steps across the bridge. Adjudication uniquely reveals ways in which
law-making and, by extension, legal practices generally, are and/or could
be a medium for accomplishing justice.
On the other hand, that South Africans opted to accomplish some
significant portion of their law-making through adjudication is a deci-
sion fraught with institutional consequences. At the most superficial
level, South Africans have chosen to compromise the supremacy of
Parliament, and correspondingly to increase the power of judges, each
to an as yet unknowable extent. Assigning any significant amount of law-
making functions to judges (there is room for debate about how far
South Africa has actually gone in this direction, but surely the steps
are significant) likely has additional, if less obvious, consequences. To
some degree (again, there is always room for debate about how far):
'The diffusion of law-making power reduces the power of ideologically organized
majorities, whether liberal or conservative, to bring about significant change in any
subject-matter area heavily governed by law. It empowers the legal fractions of
intelligentsias to decide the outcomes of ideological conflict among themselves, outside
3 Etienne Mureinik, 'A Bridge to Where? Introducing the Interim Bill of Rights,' 10 SAJHR 31,
32 (1994).
148 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
the legislative processes. And it increases the appearance of naturalness, necessity, and
relative justice of the status quo, whatever it may be, over what would prevail under a
more transparent regime. ' 4
Etienne did not specify in this passage in so many words what he meant
by a 'conscientious judge,' although his life's work in scholarship can be
understood as an extended commentary on that theme. Crudely '!iommar-
izing his dense arguments, a conscientious judge would have been one
who both faithfully fulfilled his/her oath of office to carry out apartheid
law, y;t did so in a way calculated to undermine and nullify it, or at least
to mitigate the cruelty of its impact on its victims. 7 That is, a conscien-
tious judge operates within and to some degree authentically accepts legal
constraint, yet acts strategically to accomplish freedom and social justice.
Etienne cautiously ventured that 'attractive sub-moralities' could be
found immanent in some branches of South African law, '[s]evered from
the excrescences of apartheid law,' 8 but I think it fair to surmise that the
vision of social justice inspiring his conscientious judge was informed by a
political morality largely external to South African law.
Thankfully, South African judges now face a very different environ-
ment and different challenges. As I imagine Etienne would say, to be a
conscientious judge in the new South Africa means, above all, to
9 The Constitution of the Republic of South Africa, 1996, Act No. 108 of 1996 [herein, 'the
1996,' 'the final' or 'the permanent Constitution'], s 7(2), read together with (in reverse order),
s 7( I) and the Preamble; see also s I (South Africa is a democratic state founded on the values
of '[h]uman dignity, the achievement of equality and the advancement of human rights and
freedoms'); and, s 39(1)(a) (courts 'must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom').
Unless otherwise noted, citations herein to 'the Constitution' refer to the 1996 text.
References to the interim Text, Constitution of the Republic of South Africa, 1993, Act No.
200 of 1993, are identified as such. Chapter 3 of the interim Text is referred to as the 'interim
Bill of Rights.' Occasionally, 'the new South African Constitution' and like phrases are used to
refer to norms and principles embedded in both the 1993 and 1996 documents read together as
a single text.
10 State v Zuma, 1995 (4) BCLR 401 (CC), at para. 17. Frank Michelman provides an
exceptionally illuminating commentary on Acting Justice Kentridge's statement, to which I am
indebted, in 'Constitutional Authorship and the Unoriginalist Mode of Constitutional
Interpretation,' - Acta Juridica- (forthcoming) (paper delivered to the Conference on Legal
Theory, Rand Afrikaanse Universiteit, Johannesburg, September 1-3, 1997).
150 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
legal constraint and the rule-of-law ideal make sense in the new South
Africa? Does the rule-of-law ideal imply a depoliticized conception of law
inconsistent with the aspiration to develop adjudicative methods that will
contribute to egalitarian social change? Or, must we develop a rev.lsed,
perhaps somewhat more politicized, understanding of the rule of law and
adjudication that can consist with and support transformative hopes?
Can we conceive practices of constitutional interpretation that acknowl-
edge and fulfill the duty of interpretive fidelity and yet that are engaged
with and committed to 'establish[ing] a society based on democratic
values, social justice and fundamental human rights,' a society that will
'[i]mprove the quality of life of all citizens and free the potential of each
person[,]' in the words of the Preamble? Can we describe a method of
adjudication that is politically and morally engaged but that is not illicit
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constitution, one that may plausibly be read not only as open to but
committed to large-scale, egalitarian social transformation. As a legal
matter, I think this is the best interpretation of the Constitution, but
other readings are also plausible. As I will argue, determining what a
constitution means can never be entirely separated from what one hopes
and aspires for it to mean (which assuredly does not imply that the
Constitution means whatever a decisionmaker 'might wish it to mean').
Part II contrasts mainstream and critical models of what can and should
happen in adjudication. My argument is that the strategic pursuit of
transformative projects through adjudicative practices is not, in princi-
ple, inconsistent with duties of interpretive fidelity. The work of lawyers
engaged in adjudication, whether as judges or advocates, can be inspired
by a commitment to social transformation yet faithfully observe the
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I A POSTLIBERAL CONSTITUTION?
This section aims to sketch the case for a postliberal reading of the
South African Constitution. I have deliberately chosen the ambiguous
phrase 'postliberal' rather than, say 'social democratic,' because none of
the traditional political rubrics quite fit and most carry at least some
distracting, sectarian baggage. For example, while 'social democratic' is
a serviceable label for some of the Constitution's aspirations (equality,
redistribution, social security), it doesn't capture essential features of the
South African experiment: multiculturalism, close attention to gender
and sexual identity, emphasis on participation and governmental trans-
parency, environmentalism and the extension of democratic ideals into
the 'private sphere.'
152 LEGAL CULTURE AND TRANSFORMA TJVE CONSTITUTIONALISM
cratic values, human rights, and equality (Preamble and ss l(a), 7(2) and
39( I) (a)); to overcome the legacy, including specifically the socio-eco-
nomic legacy, of apartheid and to adopt reasonable legislation to assure
access to socio-economic welfare in such areas as housing, health care,
food, water, social security and child protection (ss 26, 27, 28 and 29); to
protect the environment (s 24); to provide critical goods and services to
especially vulnerable populations 18 ; and, to promote land reform and
15 By substantive equality I mean equality in lived, social and economic circumstances and
opportunities needed to experience human self-realization. See, e.g., s 9(2) (Cqnstitutional
equality 'includes the full and equal enjoyment of all rights and freedoms (emphasis' added)').
The interim Text's Postamble speaks of a future founded on 'development opportunities' for
all South Africans. The Constitutional Principles in terms of which the 1996 Text was certified,
Constitution of the Republic of South Africa, 1993, No. 200 of 1993, Schedule 4, include the
foundational assumptions that (I) the final South African Constitution shall provide for a
system of government 'committed to achieving equality'; and, (V) that 'equality before the law'
contemplates laws, programs, and activities designed to 'ameliorate ... the conditions of the
disadvantaged[.)'
The Constitutional Court implicitly recognized the redistributive aspirations of the
Constitution in the portion of the Certification Judgment concerning labor relations. See In
re: Certification of the Constitution of the Republic of South Africa. 1996, 1996 (10) BCLR 1253
(CC), at paras. 63-69. The Court there rejects the business community's objection that the 1996
Constitution entrenches a right of workers to strike but not a right of employers to lock out.
See ss 23(2) and (3). The Court took the view that the right to strike is essential to guarantee
workers a chance to bargain effectively, whereas a constitutional right to lock out is not
essential in view of the numerous powers and weapons employers have under the common law
and most labor legislation with which to counteract strikes (para. 66). The implication, albeit
faintly echoed, is that the equality-seeking goal of the Constitution demands the entrenchment
of rights aimed to empower dominated and subordinated social groups like workers.
16 As Justice Kriegler has written: 'We do not operate under a constitution in which the avowed
purpose of the drafters was to place limitations on governmental control. Our Constitution
aims at establishing freedom and equality in a grossly disparate society.' DuPlessis, supra, at
para. 147 (citation omitted).
17 See In re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education
Bill of 1995 (Gauteng Provincial Legislature), 1996 (4) BCLR 537 (CC), at para. 9
(distinguishing positive and negative constitutional rights, but finding each type in the
interim Text).
18 See Sandy Liebenberg, identifying Violations of Socio-Economic Rights Under the South African
Constitution - The Role of the South African Human Rights Commission, report published by
the Women & Human Rights Project, Community Law Centre, University of the Western
Cape (May 1997), at pages 23-26.
(1998) 14 SAJHR 155
19 See generally s 40(2) and s 41(1). See also s 32 (access to information); s 33 (right to fair and
just administrative action); and ss 34 and 38 (access to courts).
20 'Ubuntu' is a word in the Nguni languages that appears in the Postamble to the interim Text. It
evokes an ethos or culture of community, interdependence, sharing, mutual respect and the
dignity and worth of each person. Makwanyane, at paras. 224 and 263. It connotes
humaneness, caring, social justice, and fairness. Id. at paras. 237, 293 and 308.
21 Du Plessis, at para. 157.
22 See 1996 Preamble, at para. 3.
156 LEGAL CULTURE AND TRANSFORMA TIVE CONSTITUTIONALISM
these new rights and duties to be interpreted through the lens of classical
legalist methods. They cannot have assumed that the document's lofty
ambitions would be interpreted according to, and therefore constrained
by, the intellectual instincts and habits of mind of the traditional com-
mon or Roman-Dutch lawyer trained and professionally socialized dur-
ing the apartheid era. On my reading, the Constitution suggests not only
the desirability, but the legal necessity, of a transformative conception of
adjudicative process and method.
This brings us to the second stage of the arsument. But before pro-
ceeding, let me once again emphasize that I do not assert that .the post-
liberal reading is the only possible reading of the Constitution. I am
convinced that it is the best, and therefore that it is the legally correct,
interpretation, albeit in so saying I employ a nontraditional notion of
'legal correctness' that takes account of and accords interpretive legiti-
macy to background moral and political values. 25 But for present pur-
poses I do not need and will not attempt to establish the legal correctness
of the postliberal reading. It is enough for the argument of this paper if
readers accept that the postliberal reading is at least plausible, that is,
that a case can be made on its behalf and that it is not so far off the charts
as to be unworthy of serious consideration.
23 This section contains some of the most moving words with which I am familiar in all of legal
literature, and I regret that they were not carried over into the 1996 Text. Note, however, that
the 1993 Postamble is partially incorporated by reference in the 1996 Text, at Schedule 6, s 22.
24 See, e.g., s l(a) (equality must be achieved; human rights and freedoms must be advanced);
s 7( I) (the state must promote and fulfill the rights in the Bill of Rights); s 36(1) (the state must
justify limitations on rights in terms of democratic values); s 39(1) (interpretations must
promote democratic and egalitarian values); s 234 (culture of democracy must be deepened).
25 I say 'nontraditional' here for purposes of fair disclosure to the reader. The whole point of Part
II to follow is that, far from being idiosyncratic, the 'politically-engaged' conception of legal
correctness offered here actually describes the norm of practice within liberal legal orders.
(1998) 14 SAJHR 157
tion enacted thereunder may seek to transform social patterns and insti-
tutions in light of a particular, majoritarian political morality, say, a
commitment to equality. That's OK because it is the act of the people
through their elected representatives (subject to all the obvious condi-
tions: the political process must be genuinely open, the political partici-
pation and fundamental human rights of minority groups must be
respected, and so on). But we balk at the idea of transformative adjudica-
tion, because this suggests an invitation to judges, as distinct from legis-
lators, to attempt in their work to accomplish political projects. To the
contrary, the rule-of-law ideal enjoins judges to check their politics at the
courthouse door. Judges are appointed neutrally to enforce laws set down
by others, not to make politics. They are supposed to provide legal
interpretations of texts, which means filtering out, as best they can, their
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26 Even this formulation simplifies matters by suggesting that texts have a corporeal being, with
an inside and an outside. Please don't misunderstand. I am not doubting that pieces of paper
actually exist; they do. But the piece of paper is not the 'text' - the text is the meanings we
associate with the piece of paper, and those are always a product of interpretive activity.
158 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
balance will of necessity involve value judgments. This is the nature of constitutional
interpretation. >27
Sophisticates will quickly respond that 'of course judges must consult
values external to the texts,' but those must be values embraced by,
contemplated in or underlying the text, or immanent within the legal
order, that is, they must be legal, not personal or political, values. Well
then, Justice Kriegler goes even farther than the quoted statement of
Justice Mogkoro, acknowledging that 'the judicial process, especially in
the field of constitutional adjudication, calls for value judgments in which
extra-legal considerations may loom large. ' 28
But any mention of 'values external to the text' or 'extra-legal consid-
erations' risks catering to a breach of the norm of interpretive fidelity, an
unsettling prospect for mainstream thinking about adjudication. Most of
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The common framing of the issues in traditional legal theory has the
great weakness of insisting too sharply on a separation between law and
politics and between professionally constrained legal practices and stra-
tegic pursuit of political and moral projects. 30 By hypothesis, professional
practices and strategic pursuits are treated as mutually exclusive. From
this starting point, one can never come to grips with the basic dilemma of
liberal legalism (viz., how to square interpretive difficulty with the norm
of fidelity to and constraint by text).
Consider an alternative account of adjudication that begins by soft-
ening the 'bright-line' distinctions between law and politics and between
the professional and the strategic. 31 The idea of the critical approach is
'to propose an understanding of [legal] rules that dispose ideological
stakes as products of the interaction between the legal materials . . .
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and the ideological projects of judges. The rule choices that emerge from
the interaction should be understood neither as simply the implications of
[legal] authority nor as the implications of the ideological projects, but as
a compromise' 32 shaped by the distinctive set of social practices compris-
ing legal work, including the accepted repertoire of argumentation within
a particular legal culture.
The starting point is familiar. Legal materials do not self-generate their
own meanings; they must be interpreted. Moreover, legal texts and ma-
terials are shot through with gaps, conflicts and ambiguities. Interpreta-
tion is a meaning-creating activity, so that 'the law handed down' to
adjudicators consists in part of the meanings created by prior adjudica-
tors, as well as their understandings and sensibilities about interpretive
practices. Adjudicators do not 'apply' fixed, unyielding legal materials,
the way, e.g., a hammer is brought to bear on a nail. Adjudication is not
an iterable technique that can be exhaustively described (like a computer
30 The best of contemporary theory, as exemplified by Dworkin's work, goes farthest along the
path of blurring the law/politics distinction, and therefore~ this is a virtue ~ is least likely to
induce intellectual repose.
31 The 'critical' theory of adjudication sketched here is drawn largely from Duncan Kennedy's
Critique of Adjudication, op. cit. note 4 supra. For an accessible introduction, see Duncan
Kennedy, 'Strategizing Strategic Behavior in Legal Interpretation,' (1996) Utah Law Review
785 (hereinafter cited as Kennedy, 'Strategizing'). See also, Duncan Kennedy, 'The Stakes of
Law, or Hale and Foucault!' in Sexy Dressing Etc. (1993); and, 'Freedom and Constraint in
Adjudication: A Critical Phenomenology,' 36 Journal of Legal Education 518 (1986).
My own variations on these themes appear in 'Legal Theory and Democratic
Reconstruction: Reflections on 1989,' 25 University of British Columbia Law Review 69
(1991) (revised version in Gregory S. Alexander & Grai:yna Sk\J.pska (eds.), A Fourth Way?
Privatization, Property, and the Emergence of New Market Economies (1994)); 'Social
Construction and System in Legal Theory: A Response to Professor Preuss,' in Christian
Joerges & David Trubek (eds.), Critical Legal Thought: An American-German Debate (1989);
'Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform,' 38 Catholic
University Law Review I (1988); 'The Public/Private Distinction In Labor Law,' 130 University
of Pennsylvania Law Review 1358 (1982); and, 'Law-Making As Praxis,' Telos, no. 40
(Summer, 1979) at 123-35.
32 Kennedy, Critique of Adjudication, op. cit. note 4 supra, at 19.
160 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
This does not imply that 'anything goes' or that texts mean whatever
we might wish them to mean. Sometimes the materials resist our efforts
to interpret them in a certain way. Indeed, it frequently occurs, with
respect to a given legal problem, that trained participants in a particular
legal culture reach consensus that the materials admit of only one out-
come (or a narrow range of outcomes). 33 Every lawyer has had the
experience of deeming her client bound by the pertinent legal authorities
('I don't see any way we're going to get around this'). Every lawyer has
experienced the frustration of finding that the legal materials rebuff one's
best efforts to make them out to mean something one fervently wishes.
The point is that the constraint or bindingness of the legal materials is an
experience or interpretation of them, not an innate (i.e., uninterpreted)
property of the materials themselves that we can know objectively. More-
over, the impression of constraint can weaken and transmute over time.
Most lawyers have at least occasionally experienced the thrill of discover-
ing a new perspective on familiar materials, so that their apparently
constraining power dissolves and they can, through perfectly respect-
able, professional arguments, be rearranged, recast and re-interpreted
to mean something we wish. Most lawyers can recall the experience of
struggling with an interpretive problem to no avail and then marveling as
a perhaps more gifted colleague to whom we turn plots out the contours
of a solution. Sometimes the experience of the dissolution of constraint is
short-lived, as new problems arise or old ones reassert themselves, and
the sense of boundedness reconstitutes.
This process of dissolution and reconstitution of legal constraint has a
cultural as well as an individual psychological dimension. As I will argue
33 This is not to suggest that the mores of a particular community's legal culture have an intrinsic
power to lend determinacy to 'pre-culturally' indeterminate materials. Rather, it is to say that,
as a matter of empirical fact, the interpretive practices and conclusions of many socialized
participants in a given legal culture will often happen to coincide, even predictably so.
(1998) 14 SAJHR 161
legal medium, she just might have one of those moments of an authentic
sense of the dissolution constraint. As a result, when the materials are
recast and reinterpreted, the intuitively appealing initial answer turns out
to be a legally correct or even preferred outcome.
Maybe this will not transpire. Maybe the decisionmaker will never
shake the initial feeling of legal constraint, either because she lacks the
necessary skill or because the materials stubbornly refuse to budge. Then
the decisionmaker faces a choice between being swayed by personal/
political conviction as against her best interpretation of the law or of
observing the professional norm of interpretive fidelity and resolving
the case against her moral convictions. If she chooses the former path,
she will be lying to the parties and the public, which is not a good thing
(unless, perhaps, you are a conscientious judge asked to enforce apart-
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heid law?). No doubt some judges in real life go this route; perhaps it
happens frequently. But calculated dishonesty and betrayal of profes-
sional norms, whether common or aberrational, does not present a case
of great conceptual difficulty for liberal jurisprudence.
From a theoretical standpoint, far more challenging problems are
posed by uncertainty, error, and denial. Consider these cases (among
other variants): (i) the judge who is so steeped in traditional values and
assumptions that she does not perceive gaps, conflicts and ambiguities
that would appear upon more searching analysis; and (ii) the judge who,
impelled by her moral or political intuition, works with the materials and
authentically concludes they mean something different than at first ap-
peared. Surely judge (i) enacts a politics external to the materials. By
default, she inscribes a status-quo ideological 'spin' on the materials that
they do not require or even necessarily permit. The only reason why we
do not recognize category (i) as a case of resort to external values is that
the practice is so conventional as to be unremarked.
Now focus on judge (ii), who works with the materials using the
accepted repertoire of techniques of legal analysis and, who upon reflec-
tion, concludes in good faith that the law points (or defensibly points)
toward a result consistent with her original moral intuition about the
case. Suppose judge (ii) rules consistent with her initial moral intuition
and her considered view of the law, but contrary to her initial impression
on the law. Insofar as professional norms and the rule of law are con-
cerned, does anyone doubt she is doing the right thing? Yet, because her
politics/morality impelled her to invest her energy and intellectual re-
sources in the problem, the situation easily could be described as one
in which the judge acted strategically to advance personal values external
to the legal materials.
So, the sharp, well-defined law/politics boundary of traditional theory
collapses at least two points (these are in addition to the case of trans-
parent exhaustion of the interpretive potential of the materials, leading to
calculated resort to external values as a tipping factor). First, legal work-
the interpretive practices in which judges, advocates and commentators
(1998) 14 SAJHR 163
35 'Fidelity to Jaw kicks in only when there is Jaw to be faithful to. Any legal actor, advocate, or
judge, can influence what the Jaw is, through legal work.' Duncan Kennedy, 'Strategizing,' op.
cit. note 31 supra, at 787.
36 '[O]ne cannot say with certainty that when closure occurs it is a product of a property of the
field rather than of the work strategy adopted under particular constraints.' Kennedy,
'Strategizing,' op. cit. note 31 supra, at 798, n. 7.
37 A common traditionalist move at this stage in the discussion is to say that the judge's
intellectual resource-allocation choices should be guided solely by values and principles
immanent within the legal order. This maneuver is untenable in the face of the recurring
problem of authentic uncertainty about what the materials mean. It is circular to argue that
legal work should be inspired solely by values immanent in the legal materials, if it always
requires legal work to determine what those values are.
164 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
dication and share the secret with their publics in the interests of trans-
parency. If this article leaves the reader with a single thought, I hope that
it will be that the legal profession needs to be more candid with itself and
with the community at large about the politics of adjudication and to
accept more forthrightly our responsibility (however limited and partial)
for constructing the social order through adjudicative practices. Such
candor would empower publics to examine, discuss and criticize the
now often hidden political and moral assumptions that steer adjudica-
tion. Where appropriate, the political process could send signals to the
judiciary, or even legislatively revise its work-product, always subject, of
course, to further judicial review to protect the integrity of representative
40 And other legal cultures as well, probably, but I leave that for another day.
41 See generally, Duncan Kennedy, 'Strategizing,' op. cit. note 31 supra, at 803-11.
42 Friedrich Kessler, 'Contracts of Adhesion-Some Thoughts About Freedom of Contract,' 43
Columbia Law Review 629, 633 (1943).
43 Duncan Kennedy, Critique of Adjudication, op. cit. note 4 supra, at 1-2. Kennedy has 'always,'
but I am more comfortable with 'almost always.'
166 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
For purposes of this paper, I give legal culture a stripped down, bare-
bones definition. No effort is made to unravel the complexities of popular
and professional attitudes and beliefs, or the sociology of the bench and
bar. I have something simpler in mind. By legal culture, I mean profes-
sional sensibilities, habits of mind, and intellectual reflexes: What are the
characteristic rhetorical strategies deployed by participants in a given
legal setting? What is their repertoire of recurring argumentative
moves? What counts as a persuasive legal argument? What types of
arguments, possibly valid in other discursive contexts (e.g., in political
44 This argument was forcefully put to me by several distinguished South African lawyers some
years ago. It may no longer command the support it seemed to have in the period immediately
following the 1994 elections.
(1998) 14 SAJHR 167
45 As Justice Kriegler has written: '[The interim Constitution] entrusts the enforcement of its
provisions to courts of law [noting further that appointment to the Constitutional Court is
reserved to lawyers or law-trained experts (see interim Constitution, s 99(2))) . . . . The
incumbents are judges, not sages; their discipline is the law, not ethics or philosophy and
certainly not politics[,]' Makwanyane, at para. 207.
46 Du Plessis, at para. 119 (Justice Kriegler).
47 Additionally, I disaggregate the concept of legal culture nationally/regionally (e.g., U.S. vs
South Africa) and temporally (e.g., South Africa before vs. after April 27, 1994). Obviously,
further disaggregations are possible, e.g., peak-level (appellate courts) vs. street-level (traffic
courts), and so on, but the focus here is on adjudicatory law-making at the higher levels,
particularly the Constitutional Court.
48 For the record: I am not a cultural relativist. I believe that values and institutions can attain
cross-cultural, sometimes even universal, significance, I believe in the possibility of reasoned
discourse, and I believe that as to many important questions agreement can be achieved across
cultures as to what is the truth. The theory of social construction and cultural determination
concerns the problem of our access to knowledge and truth, not to whether there are such
things as knowledge and truth. The claim that knowledge, perception and belief are socially
constructed means that there is no metahistorical, extra-cultural vantage point from which
truth-claims can be assessed. To put it another way, all human action (including perceiving,
knowing and believing) creates meanings.
168 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
politicians. Even through the long nightmare of apartheid, with its bar-
oquely legalized system of oppression, many among the victims and
within the opposition kept alive a distinct faith that law could somehow
purify and cure the society's evils. 49
The contrast between South African jurisprudential conservativism
and the more open-ended, policy-orientation in the U.S. is paradoxical.
For many years in the U.S., we have had a predominantly conservative
judiciary (here, 'conservative' in the sense of political ideology), notably
so at the Supreme Court level. And our constitutional tradition is largely
conservative: the original document directly or indirectly condoned ra-
cialized, human slavery, the political exclusion of women, and the oppres-
sion of aboriginal peoples. Even with the post-Civil War amendments
(abolishing slavery and entrenching an equality norm) and with moder-
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nization in the 20th century, we still have what is largely a classical liberal
constitution: individualistic, highly protective of private property, ex-
ceedingly few socio-economic rights, few affirmative governmental du-
ties, little 'horizontality' (in our parlance, a very strong 'state action'
doctrine), no communitarian or caring ethos, and no affirmative commit-
ment to deepening democratic culture. A few great jurists, such as most
recently Justices Brennan and Marshall, and many advocates and con-
stitutional theorists labored long and hard to introduce some ubuntu into
U.S. constitutionalism, and these efforts continue, but the victories are
infrequent and precarious.
By contrast, the discursive practices of lawyers in the U.S. (as distinct
from the substantive content of our law) often reveal a comparatively
progressive bent. Students in the U.S. have 'purposive (or 'substantive')
legal reasoning' and 'policy argument' drummed into them from the first
day of law training. Mastering the technique of lampooning formalism is
an initiation rite. The influence of the Legal Realist movement of the
early decades of the 20th century remains very strong today. U.S. aca-
demic lawyers are fond of reciting that 'we are all legal realists now.' Of
course, the self-flattering statement is hardly true. Most judges and aca-
demics have only the vaguest notion what the Legal Realists believed.
Nonetheless, Realism has deeply influenced most contemporary jurispru-
dential schools and styles of legal argument, certainly to the extent that
consequentialist 'policy argument' is normal in the U.S.
Please note that my claim is that policy argument is jurisprudentially
progressive (as compared, e.g., to literalist formalism) because it pushes
on the law/politics boundary and invites reference to social realities out-
side and beyond legal practices. But no claim is made or implied that
policy argumentation is intrinsically progressive in the sense of political
ideology. Quite the contrary, conservative judges in the U.S. often invoke
49 On South African legal education and legal culture, see generally Hugh Corder & Dennis
Davis, 'Law & Social Practice: An Introduction,' in Hugh Corder (ed.), Essays On Law &
Social Practice in South Africa (1988, at 1-30).
170 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
50 These themes are eloquently discussed in Judge Edwin Cameron's 1997 Alan Paton Memorial
Address, 'Rights, Constitutionalism & the Rule of Law,' (1997) 114 SALJ 504, particularly at
505-6 (legal containment of apartheid and legal challenges to its extremities kept legal values
alive in South Africa).
51 It is not remotely suggested that greater overall clarity and judicial candor prevail in the U.S.!
have spent the better part of my academic career attempting to unearth the ways that the
ingrained sensibilities and thought patterns of U.S. legal culture obscure judicial responsibility,
thereby lending legitimacy to historically contingent and often unjust legal arrangements.
From that point of view, the contacts I have been privileged to make with the transforming
South African legal system have been inspirational, and the last thing I would suggest is that
South Africans model their new jurisprudence on the U.S. example. The focus here is simply on
cultural difference, on parsing out exactly how particular aspects of the cultural code in
different legal systems conduce to different experiences of and faiths regarding legal constraint.
From that perspective, I do believe that American Legal Realism and its intellectual
descendants made a considerable theoretical achievement, and it would be useful if this
tradition were better known, particularly in the context of the new South Africa. See generally
William W. Fisher Ill, Morton J. Horwitz & Thomas A. Reed (eds.), American Legal Realism
(1993); Joseph Singer, 'Legal Realism Now,' 76 California Law Review 465 (1988).
(1998) 14 SAJHR 171
52 Executive Council, Western Cape Legislature v President of the Republic of South Africa, 1995
(10) BCLR 1289 (CC).
172 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
IV SOME EXAMPLES
This section briefly parses three leading Constitutional Court decisions
- Makwanyane, 53 Ferreira, 54 and Du Plessis 55 - to survey the repertoire of
argumentative moves, rhetorical devices and intellectual instincts in
South African legal culture that conduce to the impression of legal
necessity, thereby tending to obscure or erase the moments of political
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57 See, e.g., Makwanyane, at para. 5 (Chaskalson P) (Court's power limited to determining the
consistency of the death penalty with provisions of the Constitution); para. 207 (Kriegler J)
(Court's decision must be legal, not in the domain of ethics, philosophy, or politics); para. 266
(Mahomed DP) (crucial distinction between legislation and adjudication); para. 349 and 360
(Sachs J) (personal and political views vs. legal considerations).
58 For Justice Langa: see para. 218 (death penalty and history of apartheid); paras. 221-23 (a new
culture must take root in South Africa); paras. 223-27 (ubuntu- community, interdependence,
respect for and dignity of human beings).
For Justice Madala: see paras. 237-60 (ubuntu- humaneness, social justice, fairness, human
dignity); 241-51 (South African democracy must be premised on the transformability of all
human beings, even the rehabilitation of criminals, which capital punishment denies).
For Justice Mahomed: see paras. 262-63 (South African Constitution premised on
commitment to democratic, universalistic, caring, egalitarian ethos; ubuntu - love toward
fellow men and women, reciprocity, community); para. 271 (human transformability)
For Justice Mokgoro: see paras. 308-313 (ubuntu - humaneness, human dignity,
compassion, solidarity); 313-16 (state may not use human beings as instruments to achieve
its objectives); 310 (death penalty was an integral part of the apartheid system for crushing
those who stood for the values now enshrined in the Constitution). See also the opinions of
Justice O'Regan, at paras. 329-33 (historical context; death penalty as weapon of the apartheid
state); para. 325 (purposive interpretation); and Justice Sachs, at paras. 374-83 (ubuntu).
174 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
puzzle why this Court, given its obvious sensitivity and commitment to
the equality guarantee, did not invoke it more centrally in Makwanyane.
Another curious feature of the death penalty decision is the substantial
reliance, by several justices, on what seems a classically literalist argu-
ment. Several opinions rested on the incompatibility of capital punish-
ment with the right to life enshrined in s 9 of the Interim Bill of Rights.
Justice Kriegler relied solely on s 9, while other justices invoked s 9 in
addition to other guarantees. President Chaskalson referenced s 9 to give
meaning to the s II prohibition of cruel, inhuman and degrading punish-
ment.
The jurisprudential difficulty here is to imagine that the Constitution's
protection of 'life' in s 9 self-evidently entails the conclusion that capital
punishment is forbidden, that the bare phrase 'right to life' must mean
that the state cannot kill for purposes of punishment. 59 To a U.S. lawyer
steeped in the Legal Realist tradition, this reasoning is circular and
unpersuasive. The question to be decided is whether the right to life
entails the conclusion that capital punishment is forbidden. That conclu-
sion may well be correct, and I believe that it is. But it is not self-evident.
Appealing as this conclusion is from a moral and political standpoint, to
purport to derive that result from the mere words of the phrase 'right to
life,' without more, assumes what needs to be proved. Some intermediate
steps of reasoning are necessary.
The 'right to life' cannot plausibly be given the literal meaning that the
state cannot take life. In the sense of 'but-for causation,' the government
takes life every day, for example, by defraying routine expenditures (say,
59 See, e.g., paras. 80-95 (Chaskalson P) (right to life is unqualified); para. 174 (Didcott J) (death
penalty violates the right to life); para. 208 (Kriegler J) ('Whatever else section 9 may mean ...
at the very least it indicates that the State may not deliberately deprive a person of his or her
life'); para. 269 (Mahomed DP) (right to life at a minimum plainly includes right not to be
deliberately killed by state-sponsored plan of execution).
(1998) 14 SAJHR 175
sources as Immanuel Kant, Karl Popper and Isaiah Berlin (see, e.g., at
paras 52-54). By contrast, the majority, speaking through President
Chaskalson, rely on a theory of judicial deference to legislative supre-
macy that owes much to 20th century U.S. constitutionalists such as
Alexander Bickel ('passive virtues') and John Ely ('representation-rein-
forcing review'). Ferreira is also unusual in another way. Despite the
repeatedly invoked plea for judicial restraint interspersed throughout
the judgments, the Court appears quite comfortable in choosing between
use and derivative (or other forms of immunity) with an absolute mini-
mum of discussion and almost no analysis of the conflicting interests at
stake or how the various immunity formulae might bear on the parties'
constitutional interests and/or the pragmatics of law enforcement. The
opinions show little recognition that resolution of a fine-tuned question
like that requires what are classically deemed legislative, not judicial,
competencies. 63
63 Justice Ackermann does provide some reasons for selecting use immunity over derivative
immunity, see paras. 150-52, but they are either conclusory or reflect instrumental, cost-benefit
calculations of the kind ordinarily ascribed to legislation. He argues that s 41 7-evidence cannot
be compared to evidence obtained through torture (para. 150). This is surely true, but by itself
tells us little about whether use or derivative immunity is the appropriate treatment to apply in
company winding-up proceedings. Next he asserts that accounting to shareholders is a
responsibility assumed by business officers. Again this is surely correct, but merely restates a
truism. The issue to be decided is not whether corporate officers have a responsibility to
account to shareholders, but whether they assume the risk of compelled self-incrimination,
which does not follow from a general duty to account. Justice Ackermann then says, '(i]t
cannot simply be said that the administration of justice would necessarily be brought into
disrepute by the subsequent use, even in criminal proceedings against the examinee, of
derivative evidence obtained as a result' of s 417 compulsion (para. 151 (italics in original)).
This argument is circular. It amounts to no more than a restatement followed by a rejection of
the claim the applicants have brought before the Court. The reader is entitled to an explanation
of why the applicants' claim is unfounded.
Finally. Justice Ackermann comes to the heart of the matter, 'the considerations of
efficiency, economy of time and the most prudent use of scarce resources,' in a country with a
'particularly high crime rate; of which judicial notice is taken, and without the resources
available in wealthier jurisdictions like the U.S., '(a)though no statistical or other material was
placed before us(.)' Para. 152. All members of the Court save Justice Kriegler effectively
(1998) 14 SAJHR 177
approve this argument (that scarce criminal justice resources in South Africa justify the choice
for use instead of derivative immunity) without pausing to note the irony that in arriving at it,
the Court made a classically legislative and pragmatic judgment about resource-allocation. To
be sure, nothing in Ferreira precludes the legislature from enacting stronger forms of
immunity. so no suggestion is intended here that the Court usurped the legislative function.
But with regard to the Court's methodology, the casual and unremarked switch from formalist
to instrumental reasoning is curious, particularly as this occurs within opinions seeking
strongly to promote the idea that courts and legislatures have distinct institutional
competencies.
64 Which is not to say that the Court's decision is wrong, or that the South African Constitution
requires that derivative immunity accompany compelled self-incrimination. Use immunity may
get things just right legally and policy-wise. My point is that we cannot be sure from what is
written how the Court arrived at its solution, that is, whether it got there by weighing and
rejecting more dramatic approaches or whether the more dramatic alternatives were never
serious contenders (and, if not, why not).
178 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
meaning of the Constitution than any of the latter. But Justice Acker-
mann makes no substantial case to that effect. Little is said as to why we
should turn to the liberal political tradition to ground the interpretation
of a transformative Constitution. This is taken as self-evident. 65 Thus, the
fact that liberal politics are being read into the Constitution by interpre-
tive work is obscured through the hallowed literary devices of citing to
very famous philosophers and labeling as 'neutral principles' (para. 68) a
series of highly contested ideas about the modern state (at paras. 52-69).
Other discursive practices lend themselves to the denial of judicial
choice and responsibility. One is the technique of solemn intonement
as, e.g., '[t]he Court's order does not invalidate the law; it merely de-
clares it to be invalid' (para. 27). Another is to imply repeatedly that all
measures have been taken to keep 'subjective values' out of the reasoning
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process (e.g., paras. 68 & 82). A third is conclusory argument, giving the
impression that the result was reached without interpretive work (see,
e.g., at paras. 127 and 150-52).
The treatment of language and the discussion of interpretation itself
add to the impression that the decisionmaker is constrained by the legal
materials, rather than working within a relatively plastic medium. For
example, Justice Ackermann's Ferreira opinion offers several different
and conflicting approaches to the interpretation of words. We are cau-
tioned against 'surrendering to ... formalism' (para. 10), or resorting to
'strained and limited construction' (para. 58), and we are told with
emphasis that constitutional words require 'generous,' 'broad,' 'purpo-
sive' and 'teleological' interpretation (paras. 46-59). Yet at other points,
words are given a most rigid, literalist construction. For example, Justice
Ackermann finds that s 25(1) fair-trial guarantees are inapplicable to the
case because, according to interim Constitutions 7(4)(a), constitutional
rights are only justiciable when an infringement occurs or is threatened,
and fair-trial rights cannot be infringed or threatened until a trial of an
accused is commenced. But the drafters could easily have intended that a
'threat' to fair-trial rights occurs at the earlier point in time when self-
incrimination is compelled in a winding-up proceeding (even if, at that
point, no one has yet been accused or put to trial). On a 'generous
reading,' pre-trial, compulsory self-incrimination can be said to 'threa-
ten' fair-trial rights by precipitating a situation (a 'threatening situation')
that, as a practical matter, empowers the authorities later to infringe fair-
trial rights. Seven justices eventually concluded that the fair-trial issues
were ripe for adjudication. The point is not the President Chaskalson is
65 But, with respect, it is not self-evident, rather, it is highly controversial, that the South African
Constitution is a classical, liberal document. Justice Kriegler, for one, argues that South
Africa's is not a traditional liberal constitution, that it is 'unabashedly egalitarian and
libertarian,' and that the fundamental rights and freedoms it proclaims 'have a poignancy and
depth of meaning not echoed in any other national constitution I have seen.' Du Plessis, at
paras. 125-26.
(1998) 14 SAJHR 179
right or that Justice Ackermann is wrong about the purport of the word
'threat' ins 7(4)(a). It is that Justice Ackermann offers no persuasive
reason why a literal approach is appropriate for interpreting 'threat' but a
generous approach is required to interpret 'freedom.' The impression
created by the literary device of apparently indiscriminate switching
between interpretive modes is that a judge is just a technician who is
not responsible for or extra-legally influenced in his choice of interpre-
tive methods.
3. Du Plessis: This is an exceptionally interesting case from all angles -
philosophical, political and jurisprudential. The debate between the jus-
tices provoked several brilliant and eloquent opinions, to which these
brief comments at the tail-end of an already overly-long article can
hardly do justice. Here I simply aim to surface and identify some points
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66 A companion piece discusses the parallel question of the relationship of legal culture (defined
somewhat more broadly than here) and substantive orientation on issues of constitutional
application in the U.S. See my 'Legal Culture & the Problem of Constitutional Application in
the United States,' forthcoming as a CALS Occasional Paper.
67 See note 13 supra.
180 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
68 Compare Final Text, s 8(2) (Bill of Rights provisions bind natural and juristic persons under
certain conditions) with Interim Text ss 4(2) and 7(1) (application provisions ambiguous on
this point).
(1998) 14 SAJHR 181
69 Justices Kriegler and Madala noted certain important caveats and qualifications to the broad
statements concerning this issue in Justice Kentridge's opinion.
70 Which is not to suggest even slightly that the Court over-stepped the boundaries of its
institutional role or usurped the democratic process. As argued throughout, political choice,
even on these core issues, is in the nature of constitutional adjudication.
182 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
71 'All proceedings which immediately before the commencement of this Constitution were
pending before any court of law ... shall be dealt with as if this Constitution had not been
passed[.]'
72 DuPlessis, at para. 12, citing State v Mhlungu, 1995 (7) BCLR 793 (CC).
73 The Court did reach the substantive issue of horizontal application of Chapter 3, but only by
way of the trial court's referral, not the defendants' appeal. See para. 30.
(1998) 14 SAJHR 183
for an alleged 1993 defamation. With the utmost respect, however, Jus-
tice Kentridge did not reason convincingly to his conclusion from plau-
sible premises. In his view, the plaintiffs' right to damages, if any, accrued
exactly at the moment the alleged defamation occurred. He conceives the
right to damages as a quasi-property entitlement, of which the Constitu-
tion did not intend to divest the plaintiffs. This way of viewing the
problem erases human agency and choice- his agency and choice- in
the legal process. Legal rights do not accrue automatically and in the
abstract. A 'legal right' is an emblem for decisions people take and
processes they set in motion to respect and enforce someone's claims of
entitlement. So the real question is whether a government bound by this
Constitution can now grant the remedies sought and accord rights with
respect to conduct or relationships arising at a pre-Constitution date.
This question cannot be answered simply by intoning that the plaintiffs
acquired their rights before April 27, 1994. The Court must give a reason
of precedent or drafters' intent or public policy- some kind of principled
reason - why the constitutionally bound government of the new South
Africa should now grant tort remedies despite the potential damage to
expressional freedoms. Justice Kentridge obviously knows this. Belatedly
he writes: 'there may be cases where the enforcement of previously ac-
quired rights would in the light of our present constitutional values be so
grossly unjust and abhorrent that it could not be countenanced, whether
as being contrary to public policy or on some other basis' (para. 20). 74
One would think from this that the reader is about to receive a statement
of reasons why Du Plessis is not such a case, why no important public
policy counsels against present enforcement of pre-commencement rights
that may trench upon precious expressional freedoms. But neither Justice
Kentridge nor any other member of the Court really addresses, let alone
74 In light of this concession. I should emphasize that DuPlessis does not purport to resolve, for
any purposes beyond the case itself, the question of the possible bearing of the Rill of Rights on
the adjudication of pre-commencement events or the possible retroactive effect of
constitutionally mandated changes in common law rules. See also at para. 117 (Kriegler J).
184 LEGAL CULTURE AND TRANSFORMATIVE CONSTITUTIONALISM
75 'It is sufficient to say that cases such as the one before us obviously do not fall into that
category [i.e., cases where present enforcement of pre-commencement rights would deeply
offend constitutional values]' (para. 20). See also para. 19 ('obvious'; '[w]hat is clear').
Justice Kentridge is obviously right that the defamation case raises different considerations
from, e.g., the death penalty, so that it may ultimately make constitutional sense to bar the
execution of capital sentences handed down prior to April 27, 1994, while not giving
'retroactive' application to freedom of expression so as to bar a pre-April 27, 1994, defamation
claim. But the fact that the death penalty is irreversible and abhorrent in the extreme, does not
make it self-evident that the defamation/free expression problem raises no substantial public
policy concerns.
(1998) 14 SAJHR 185
76 At para. 86 interim Constitutions 35(3) provides that '[i]n the interpretation of any Jaw and the
application and development of the common law and customary Jaw, a court shall have due
regard to the spirit, purport and objects of' the interim Bill of Rights.
77 Makwanyane, at para. 349 (Sachs J).
(1998) 14 SAJHR 187
Constitution must have been intended to address these oppressive and undemocratic
practices at all levels. In my view our Constitution starts at the lowest level and attempts
to reach the furthest in its endeavours to restructure the dynamics in a previously racist
society' (para. 163).
CONCLUSION
poses on their work. The new South Africa has a Constitution with
massively egalitarian commitments superimposed on a formalistic legal
culture without a strong tradition of substantive political discussion and
contestation through the medium of legal discourses. An opening to
transformation requires South African lawyers to harmonize judicial
method and legal interpretation with the Constitution's substantively
progressive aspirations. The burden of my argument is that law and
legal practices can be a foundation of democratic and responsive social
transformation, but that this requires us to evolve an updated, politicized
account of the rule of law.
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