I speak to you not as an academic, but as a judge who holds public office as a member of the third arm of the government — which during the United States constitutional drafting process Thomas Jefferson famously described as ”the least dangerous branch of government”.
Yet, even though I speak as a relative outsider, many of the issues pressing on the higher education sector — of resources, institutional autonomy, independence, relation to the government, constitutional protection — have a resonance for the judiciary.
In our own respective ways, the daily tasks of judges and academics require that we pursue a commitment to truth. Though our jobs require that we do many mundane things, our underlying vocational commitment is to understanding, advancing and defending the truth.
I do not mean this in some unrealistically starry-eyed or lofty way. Most of a judge’s work is directed either to determining facts and events or to establishing the proper legal meaning of words and concepts. The two judicial tasks are distinct. One is the historically reconstructive task of fact-finding. The other is the evaluative task of giving content to legal norms.
Yet both involve a commitment to truth-determination of ethical or normative veracity. So, too, in the academic world. Whether you profess literature or law, your daily task is premised on a commitment to greater understanding of the truths of our world and the struggles that humans face in it.
The often mundane and arduous work of research and teaching and publishing have meaning only because they are undertaken in submission to the enlargement of truth. This is not to say that academics or judges have an exclusive hold on truth or a specially privileged claim to insight. On the contrary our commitment requires us to be well aware of how contingent and fallible the justice system and the vehicles of academic endeavour are.
Nor is it to say that other vocations do not seek truth. They do. But what is distinctive about academic life and judicial office is the centrality, indispensability and unconditionality of the vocational commitment to truth-seeking and truth-telling. It is this that distinguishes academic life from other forms of service delivery. Of course academics deliver services: they must, and the services they deliver are of vital importance. Yet the primary function of academics is not the production of goods or their marketing; and it is for this reason that we feel uncomfortable when some reduce higher education to an ”enterprise”.
Likewise with adjudication. Though judges espouse the law, their pursuit of it is distinct from that of practitioners, whose loyalty lies with their clients and to the advancement of a partisan view and through it to victory in the causes they undertake. By contrast, judges (like academics) have a commitment beyond incidental service and are thus united in a vocational relation to truth-seeking.
A second and perhaps more interesting feature of our professional commitment unites us. It is our relation to governmental power. Neither judges nor academics exercise power. It is true that judges issue orders that can have immense societal effect. Yet they themselves cannot and do not see to their implementation. For this they are dependent — as the recent history of Swaziland and Zimbabwe tragically shows — on voluntary submission to law by those who exercise governmental power. If the executive does not willingly submit itself to the law and its processes, the judiciary is powerless.
By contrast, where executive submission is present, as in South Africa, the rule of law prevails, and the benefits of ordered justice — which include certainty and predictability and the regulated pursuit of social ideals — permit genuine human flourishing. There is a paradox in this apparent powerlessness. Though judges and academics do not employ the overt mechanisms of political power, they nevertheless have high authority in society and exert very significant influence.
Academic writing and research play a vital part in shaping our world and our understanding of it; while judges too have significant authority and influence. This is because — as the historian EP Thompson pointed out — governmental submission to the rule of law is itself a condition of legitimacy. Since executive power exercised without regard to the ameliorative conditioning of legal process becomes brute force — and, thus, subject to the resistances that brute force evokes.
Judges, though notionally powerless, are ultimately essential to effective state power. The paradox is that the judicial authority springs in part from the fact that judges do not make the law or enforce it. In a healthy polity, judges’ removal from governmental power and the political processes that inform it lends authority and influence to their rulings.
Likewise with academics: the very concept of the ”ivory tower” confers public standing, since it is precisely the distance from the processes of power that vests academic insights with credibility and, hence, with authority. In both cases, it is the vocational commitment to truth and its advancement, in contradistinction to the possession or exercise of power, that bestows social authority and influence. It is the abstraction from power that confers power.
What do these commonalities mean for judges and academics? Firstly, and most centrally, removal from power, and a vocational commitment to the pursuit of truth as an independent value, necessarily entail a critical relation to the exercise of temporal power. Our job is not to exercise political power, but to stand in a relation of reflective oversight to it. Therefore, our primary commitment must be its critical examination.
For this reason it is not coincidental that both our institutions enjoy special constitutional protection. The Bill of Rights specifically guarantees ”academic freedom and freedom of scientific research” for institutions of higher learning.
The judiciary also enjoys entrenched constitutional protection. Not only are ”supremacy of the Constitution and the rule of law” expressly stated to be foundational values of our new democratic state, but the Constitution unequivocally declares that ”the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”.
These guarantees exist precisely because academic inquiry and judicial oversight, untrammelled by the duties and difficulties and harsh responsibilities of governance, are indispensable to our democracy. They exist because the founding drafters recognised that substantive power is enhanced when informed by objective academic inquiry and that its exercise must be mediated by independent judicial control.
Let me give the Aids epidemic as a practical example. Aids is the greatest health and economic challenge our nation faces. It is also its largest moral challenge, because it is such a critical test of its leadership and institutions.
When, after 1999, the government showed indecision about the aetiology of Aids, and the appropriate bio-medical regimen to apply to it, the indispensably rational scientific response was asserted by academic leaders and the courts. From the academic world, leaders such as Malegapuru Makgoba, Hoosen Coovadia and Slim Karim, of the University of KwaZulu-Natal, and Glenda Gray and James McIntyre of the University of the Witwatersrand, were unflinching in bearing academic witness to the need for a scientifically truthful and reasoned response.
And in two critical landmark decisions the Constitutional Court spelt out and implemented scientific fact, first in proscribing irrational discrimination against persons with Aids, and then in requiring that the government institute a public programme to inhibit mother-to-child transmission of HIV.
This example is not uncontroversial. The debate about the causes and the treatments of Aids has been painful for our nation. But it illustrates how the distance from power enables truth-telling about power.
Without the clarity of academic truth, and the correcting influence of constitutional principles and the rule of law, our national response to the epidemic would have faltered longer than it did, with more grievous consequences.
It is the very painfulness of the example that underscores the importance of our work as academics and judges. Governance is an immensely complex task and most South Africans rightfully feel immense pride in what has been achieved over the past 10 years.
Governance is more difficult in a country that bears the scars of centuries of systematic racial exclusion and deliberate subordination. The task of the legislature and executive is thus large and important and if we fail to remedy racial injustice, poverty and gender inequalities we place in peril all that is precious in our national life.
So those who stand in a relation of critical oversight to power must act with humility and care, and with an informed appreciation of the continuing fragility of the bonds that tie our enormous diversities together. We in academe and the judiciary should feel no disquiet if we are scolded for the deficiencies of our collective mindset, since attunement to the imperatives of poverty alleviation and the realisation of racial and gender equality is essential for success in our ambitious constitutional project.
Conversely, politicians, who bear the burdens of executive power, should not feel disquiet if the application of constitutional norms requires that their decisions occasionally be set aside, or their reasoning in reaching them criticised. The discomfort, the scrutiny, and the mutual unease, are necessary to our coming into being as a robust nation, and we approach the future with confidence in each other, and with trust in the viability of our shared national institutions.
What is important is our joint commitment to the overriding goals of dignity and equality and freedom under law, and our determination to eradicate the scars of our racial past.
For us as academics and judges the vocational commitment to truth-seeking and truth-telling, and the removal from the immediate apparatus of power, requires humility. But it requires also perseverance, for the complexity of our country and the richness of our national life require detached but informed and committed critique of the exercise of power. That our Constitution imposes on us both the duty and the opportunity to do so is beyond question. The real question is how effectively and skillfully we will follow that calling of truthful critique.
This is an edited version of the lecture delivered by Justice Edwin Cameron of the Supreme Court of Appeal at the opening of Unisa’s academic year in January