Law and dogma: the illiberal elite

Clumsy intensity and toothless delicacy are equal and opposite errors in constitutional law. Law is, as Judge Albie Sachs says, ”congealed politics” in which clumsy purists damage their own goals.

”If I saw a venomous snake crawling in the road, any man would say I might seize the nearest stick and kill it; but if I found that snake in bed with my children, I might hurt the children more than the snake and it might bite them.” Thus Abraham Lincoln wanted delicacy to destroy slavery without destroying the United States, just as shrewd ANC minds would destroy racism without destroying South Africa.

An indelicate Party of Transformation recently surrounded Judge John Hlophe, a judicial activist of enormous intensity but little progressive effect. Meanwhile, Johann Kriegler’s Party of Judicial Standards took money (disguised as ”Swiss” in early media reports) from apartheid-conglomerate-baron-turned-luxury-goods-salesman Johann Rupert, allied with Desmond Tutu, whose Truth Commission oh-so-gently interrogated Rupert’s empire a decade ago.

Finally, Ken Owen, a solitary voice of white nihilism, paradoxically entered this public debate to argue that ”whites” should not enter public debates, rather leaving them to black ”scum”: ”We are dealing with a generation of black leaders who were severely damaged, men more than women [sic], by the terrible humiliations of apartheid … We all see that scum rises to the top.” Phew!

Damaged but not ”black”, Sachs is presumably not ”scum” to Owen. Sachs embodies the shrewd nonracialism envisioned by Frantz Fanon, the West Indian intellectual whose revolutionary text, despite its preface by ”white” Jean-Paul Sartre, Owen comically enlists for white nihilism.

In Culture and Imperialism, Edward Said accurately summarises Fanon: ”Throughout The Wretched of the Earth (written in French) Fanon wants somehow to bind the European as well as the native together in a new non-adversarial community of awareness and anti-imperialism.”

Confounding black populism and white nihilism, Sachs achieves genuine dialogue on law and race. Avusa editor Ray Hartley thought he was defending Kriegler: ”Like most judges he is condescending to everybody.” Really? Are judges merely equal-opportunity condescenders, dispensing freedom ”under” law to inferiors underfoot?

Such sado-legalism violates the University of Cape Town’s democratic governance and rights unit’s call for judges with empathy, compassion, humility, open-mindedness, courtesy and patience. Cowboys don’t cry but judges do, the deputy chief justice recently remarked.

Writing in 1990, Sachs contested the congealed politics of condescension: ”Those who already have power of every sort, economic, physical, political, not to speak of the immense confidence or arrogance that overlordship gives can, with a phone call or a command to a secretary or a nod and a wink at the golf course, summon up a battery of legal experts to do their bidding.”

In that same year the Kriegler camper, David Unterhalter, illiberally advocated what Sachs opposed. ”The thrust of [Unterhalter’s] document,” the DA’s Tony Leon explained, ”is simply that [our voters] will carry a disproportionately large weight in the new South Africa” (Business Day, June 27 1990). Because this illiberal constituency was ”well educated, skilled and relatively well off”, Leon’s party could, Unterhalter said, ”press the interests of a liberal [sic] order” on the ANC.

Beyond ”black” and ”white”, present debates pit this collapsing illiberal elite against the belated democratisation of law.

Sachs’s Bench memoir, The Strange Alchemy of Life and Law, blatantly references (in title and themes) the contemporary classic by Patricia Williams, The Alchemy of Race and Rights (1991). Although Williams advocates ”a jurisprudence of generosity”, South African jurisprudence remains dogma-drenched.

Interesting constitutional cases are always tragic because both sides are in some sense right and judges must make hard choices.
But the sado-legalist styles of argument that dominated pre-1994 courtrooms persist today, with prominent lawyers pretending that constitutional adjudication is dogmatically clear-cut.

Paul Hoffman, senior counsel with the Institute for Accountability in Southern Africa, ”argues”, by mere unreasoned assertion, that the judiciary ”is not a proactive entity”. But as Sachs correctly says, our Constitution and courts are ”emancipatory” and ”activist”.

The dogmatic assertion by Wim Trengove SC that a school’s governing body ”need not have regard to the interests of the community at large” was unanimously rejected by the Constitutional Court. It just ”doesn’t matter” that National Prosecuting Authority officials abusively discussed Zuma’s prosecution with Zuma’s rivals, Trengove said. Sado-legalism bullies more than persuades.

”That life is complicated is a fact of great analytic importance,” Williams writes. ”Law too often seeks to avoid this truth by making up its breed of narrower, simpler, but hypnotically powerful rhetorical truths. Acknowledging, challenging, playing with these as rhetorical gestures is, it seems to me, necessary for any conception of justice.”

But illiberal activist Judge Edwin Cameron calls judges ”public oracles”, meaning profound and infallible prophets. Sachs, mocked by sado-legalists in 1994 as ”poetic”, not ”legal”, has transformed the micropolitics of legal culture. That’s honourable scum.

Ronald Suresh Roberts is writing a legal realist critique of South African constitutional jurisprudence since 1994

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