Legal Culture and Transformative Constitutionalism PDF

South African Journal on Human Rights
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Legal Culture and Transformative

Constitutionalism
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
To link to this article: http://dx.doi.org/10.1080/02587203.1998.11834974
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LEGAL CULTURE AND
TRANS FORMATIVE
CONSTITUTIONALISM*
KARL E KLARE**
'Our function is to interpret the text of the Constitution as it stands. Accordingly,

whatever our personal views on this fraught subject [capital punishment] might be, our
response must be a purely legal one.'
Justice Albie Sachs 1
'(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
It was a privilege to befriend and work with Etienne Mureinik toward

the end of his life. I am particularly proud that Etienne once lectured at
my university during his sabbatical in the United States. It was a minor
professional engagement for him, but it meant a lot to us. He inspired our
students with a lucid account of the legal changes occurring in South
Africa and with the brilliance, energy, intellectual daring, and uncompro-
mising commitment to justice that fueled his opposition to apartheid and
his contribution to the democratic transition. This essay seeks, doubtless
.inadequately, to emulate and celebrate Etienne's example as a legal
scholar and as an engaged citizen.
INTRODUCTION
This essay focuses on adjudication as one branch of the law-making

processes of democratic societies. I take for granted the perhaps contro-
versial assumption that - because adjudicators can never be totally con-
strained by their legal sources, because no one has yet devised or is likely
• 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
to devise a system of total constraint consistent with democratic values -

adjudication is, inevitably, a site of law-making activity.
Legal academics, particularly in common law countries, are often
criticised for over-attention to adjudication at the expense of other law-
making processes and institutions, viz., legislation, executive action, ad-
ministration, police procedure, extra-legal dispute resolution, and so on.
It may well be true, insofar as daily life for most South Africans is
concerned, that legislation, the budgetary process, police administra-
tion, Reserve Bank decisions on currency control, and many other pro-
cesses that determine and enforce public policy matter considerably more
than what courts do. But, adjudication is still worthy of continuing, close
attention by legal scholars, for several reasons.
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 Mureinik cited yet another reason for focusing on adjudica-

tion: '[t]he study of what judges do [is] a most instructive way to under-
stand the law itself. ' 5 He wrote those words in a different time and
context, the period of intensified repression and serial states-of-emer-
gency that marked the last years of apartheid. He continued, bravely:
'Much ... of what jurisprudence teaches us about adjudication applies also to ... other
forms of legal practice .... If we find that conscientious judges are so tightly constrained
by the fetters of unjust laws as to destroy their capacity to do justice, and that they should
therefore resign, we have discovered most of what we need to know to determine the
moral duty of a conscientious legal practitioner. If there is no point in being a
conscientious judge, there is no point in being a conscientious advocate, because the
arguments of a conscientious advocate are calculated to persuade only conscientious
judges. Nor can there be any point in being a conscientious attorney .... (and] little point
in being a conscientious academic lawyer, because the most important kind of legal
research is addressed to conscientious judges and practitioners, and teaching is a
worthless activity unless it is addressed to conscientious students; and there can be no
point in being a conscientious law student, because you would be preparing yourself for
nothing.' 6
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
4 Duncan Kennedy, A Critique of Adjudication: {fin de siecle} (1997) (hereinafter cited as

Kennedy, Critique of Adjudication), at 2. Kennedy calls these consequences, respectively, the
moderation effect, the empowerment effect, and the legitimation effect.
5 Etienne Mureinik, 'Dworkin and Apartheid,' in Hugh Corder (ed.), Essays On Law & Social
Practice in South Africa (1988) 181, at 182.
6 !d. at 183 (citations omitted).
7 Id. at 209-10.
8 !d. at 213.
(1998) 14 SAJHR 149
'promote and fulfill' through one's professional work the 'democratic

values of human dignity, equality and freedom,' and to work to 'estab-
lish a society based on democratic values, social justice and fundamental
human rights. ' 9
But judges still, and will always, confront the conflicting pulls and
tensions (what we used to call 'the dialectic') of freedom and con-
straint. On the one hand, there is a grand constitutional text replete with
broad phrases and redolent with magnificent hopes to overcome past
injustice and move toward a democratic and caring society. Yet, on the
other, just about everyone takes for granted that adjudication is not and
cannot be infinitely plastic and open-ended, that judges and lawyers are
not completely at large to say and do as they please by the lights of
whatever personal vision of freedom they hold. A commitment to legal
constraint (evoked in the mantra 'rule of law') seems to be a foundation
of the democratic-transition enterprise. Respecting particularly the pro-
blem of constitutional interpretation by courts, Acting Justice Kentrid-
ge's well-noted comment in Zuma captures this tension or ambivalence
most succinctly: ,.
'While we must always be conscious of the values underlying the Constitution, it is
nonetheless our task to interpret a written instrument. I am well aware of the fallacy of
supposing that general language must have a single 'objective' meaning. Nor is it easy to
avoid- rile influence of one's personal intellectual and moral preconceptions. But it cannot
be too strongly stressed that the Constitution does not mean whatever we might wish it to
mean.' 10
To avoid any misunderstanding down the road, let me say as clearly as

I possibly can that I, too, accept both the experienced reality and the
normative force of legal constraint. I am quite happy to place my right
hand on my pocket edition of the 1996 Constitution and solemnly affirm
that judges are, and should be, constrained Gust as they are, and should
be, free to accomplish justice).
The problem is, what does all this mean? Do traditional accounts of
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).
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
'judicial legislation.' Is there a postliberal account of the rule of law
suitable to the political challenges South Africa has set for itself?
Differently formulated, the question is whether transformative consti-
tutionalism is a viable project for South African judges and lawyers (and,
by extension, judges and lawyers working within other legal regimes). By
transformative constitutionalism I mean a long-term project of constitu-
tional enactment, interpretation, and enforcement committed (not in
isolation, of course, but in a historical context of conducive political
developments) to transforming a country's political and social institu-
tions and power relationships in a democratic, participatory, anq egali-
tarian direction. Transformative constitutionalism connotes an enterprise
of inducing large-scale social change through nonviolent political pro-
cesses grounded in law. I have in mind a transformation vast enough to
be inadequately captured by the phrase 'reform,' but something short of
or different from 'revolution' in any traditional sense of the word. In the
background is an idea of a highly egalitarian, caring, multicultural com-
munity, governed through participatory, democratic processes in both
the polity and large portions of what we now call the 'private sphere.'
The major question underlying the scholarly initiative of which this paper
forms a small part is whether it is possible to achieve this sort of dramatic
social change through law-grounded processes. This is a big question,
and here I will attempt only to explore some pieces of the puzzle.
As used here, transformative constitutionalism is not a neutral concept
but is frankly intended to carry a positive valence, to connote a social
good. That is, I am assuming that large-scale, egalitarian social transfor-
mation is desirable in South Africa and- I hasten to add- in the United
States as well. At the risk of belaboring the obvious, my argument is
animated by controversial political and moral commitments. It is respect-
fully submitted, however, that readers need not share these sentiments, or
even my view that constitutional theory ought to be written from the
acknowledged perspective of a political morality, in order to engage my
argument.
Part I argues briefly that South Africans have adopted a postliberal
(1998) 14 SAJHR 151
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
norms and expectations of their professional role. The principal implica-
tion of the discussion is that, in the interests of transparency, constitu-
tional adjudication ought more frankly to acknowledge its political
character. Part III takes up the question of the autonomous role of legal
culture in shaping and steering adjudication. I identify a 'disconnect'
between the Constitution's transformative aspirations and the co1tserva-
tive character of South African legal culture. The claim is that, regardless
of their political leanings, all participants within a legal culture are to
some ~txtent influenced and constrained by it to produce ideas and out-
comes that are or might be different from the ideas and outcomes that
would arise were they participants in a different or a more plural or
conflictual legal culture. The descriptive point is that legal culture and
socialization constrain legal outcomes quite irrespective of the substan-
tive mandates entrenched in constitutions and legislation. The normative
point is that South Africa's legal culture and legal education are in need
of a transformation or leavening that will bring them into closer harmony
with the values and aspirations enacted in the Constitution. Part IV looks
at three Constitutional Court cases that illustrate some of the themes of
the paper.
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
My goal here is not to persuade readers that the postliberal reading is

the correct interpretation of the South African Constitution but rather to
invite dialogue about what it might mean to say that a given interpreta-
tion of a text is 'legally correct.'
For the record, I hope that the reader will not think that I am com-
placent about which is the preferred, legally correct reading of the Con-
stitution. In another context, I would be quite prepared to contend that
the postliberal reading is the best interpretation and therefore the one
that should guide South African judges and lawyers. But my task in this
particular paper is the preliminary one of clearing away conceptual
underbrush that makes it difficult to have an open-ended conversation
about whether a postliberal, or neoliberal, or conservative, or any other
reading of the text is best and what are the criteria for making such a
judgment. The problem is that, within our legal culture, a traditional
liberal view carries a presumptive imprimatur of being a 'legal' interpre-
tation, whereas a postliberal reading appears t~ be a 'political,' that is,
non-legal interpretation. From this starting point, the case for the post-
liberal reading never gets a fair hearing.
But this framing of the issues is wrong, as I hope to show. Mainstream,
traditionalist interpretations are every bit as 'political' as the postliberal
interpretation, and the latter is every bit as 'legal' an interpretation as
mainstream exegesis. If I succeed in establishing that point, it will open
the way for further dialogue on other occasions about the ultimate. power
and convincingness of the postliberal interpretation. At the same 'time, I
hope to show those with an interest in transformative constitutionalism
that we cannot move far in that direction without rethinking the role of
legal cvlture and radically transforming our understanding of legal inter-
pretation.
The South African Constitution intends a not fully defined but none-
theless unmistakable departure from liberalism (as contemplated in clas-
sic documents such as the U.S. Constitution) toward an 'empowered'
model of democracy. As then Deputy President, now Chief Justice Ma-
homed wrote in Makwanyane, referring to the interim text:
'The South African Constitution is different: it ... represents a decisive break from, and a
ringing rejection of, that part of the past which is disgracefully racist, authoritarian,
insular, and repressive and a vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the
Constitution.' 11
To quote Justice Kriegler, the fundamental rights and freedoms an-

nounced in the South African constitution 'have a poignancy and depth
of meaning not echoed in any other national constitution[.] 12
II State v Makwanyane, 1995 (6) BCLR 665 (CC), at para. 262.

12 DuPlessis v De Klerk, 1996 (5) BCLR 658 (CC), at para. 126.
(1998) 14 SAJHR 153
In support of a postliberal reading, one would highlight that the South

African Constitution, in sharp contrast to the classical liberal documents,
is social, redistributive, caring, positive, at least partly horizontal, 13 parti-
cipatory, multicultural, and self-conscious about its historical setting and
transformative role and mission. To put it another way, the Constitution
embraces a vision of collective self-determination parallel to (not in place
of) its strong vision of individual self-determination.
I. Social rights and substantive conception of equality: The Constitution
comprehends that political freedom and socio-economic justice are intex-
tricably intertwined and therefore draws a close connection between
political and socio-economic rights. It intends not merely to proclaim
democratic political rights but to commit the South African people to
achieve a new kind of society in which people actually have the social
resources they need meaningfully to exercise their rights. 14 Unlike classi-
cal liberal bills of rights, whose chief purpose was to secure individual
liberty and property from imposition by government, the South African
Constitution embodies the idea that the power of the community can
(and must) be deployed to achieve goals consistent with freedom, that
collective power can be tapped to create social circumstances that will
nurture and encourage people's capacity for self-determination.
The Preamble announces that the purpose of the democratic transfor-
mation is to establish a society based on social, as well as political, justice,
and s I states that the Republic of South Africa is founded on the value of
achieving equality. Indeed, the Constitution contains a pervasive and
overriding commitment to equality, specifically comprehending a
13 This terminology refers to the scope of application or 'reach' of a constitution's fundamental

rights provisions. 'Vertical application,' what in the U.S. we call the 'state action doctrine,' is
the traditional approach, viz., that fundamental rights only bind governmental actors and only
apply within the relationship of government to citizens. 'Horizontal application' or
'horizontality' refers to an application of fundamental rights that binds private as well as
governmental actors and applies in relationships between private citizens, as well as in
relationships between government and citizens. The more precise rubric for this approach is
'direct horizontal application,' to distinguish it from a third approach called 'indirect
horizontal application,' under which constitutional rights apply of their own force only to the
vertical relationship of state to citizen, but in addition constitutional norms indirectly influence
the law governing 'private relationships' because judges are obliged to interpret and apply
private law in light of constitutional principles and values.
In the U.S., the basic rule is that constitutional rights apply only vertically, but there are
some exceptions mandating direct horizontal application, e.g., the prohibition of slavery and
the right of interstate travel. European Community law also grants direct horizontal effect to
certain rights, e.g., nondiscrimination on the basis of Member-State nationality and gender-
equal pay. The German Constitutional Court's doctrine of mitte/bare Drittwirkung mandates a
kind of indirect horizontal application: provisions of private law that limit a fundamental right
must be interpreted in light of the constitutional norm; this gives fundamental rights a 'radiant
effect' (Ausstrah/ung) on private law.
14 'The Preamble of the [interim] Constitution proclaims the need to create a new order in which
all citizens will be able to exercise their fundamental rights.' Du Plessis, at para. 132 (Kriegler J)
(emphasis added).
substantive (redistributive), not just formal, conception of equality. 15 The

Constitution envisages equality across the existential space of the social
world, not just within the legal process. Implicit is an understanding that
foundational law is not and cannot be neutral with respect to the dis-
tribution of social and economic power and of opportunities for people
to experience self-realization.
2. Affirmative state duties: To the end of achieving equality and social
justice, the Bill of Rights does more than place negative restraints on
governmental interference with liberty. 16 It imposes positive or affirma-
tive duties on the state to combat poverty and promote social welfare, to
assist people in authentically exercising and enjoying their constitutional
rights, and to facilitate and support individual self-realization. 17 The
Constitution commits the government of South Africa to promote demo-
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
access to land (s 25). The Constitution expresses a particular solicitude

for and commitment to assist and protect especially vulnerable groups
(such as children).
3. Horizontality: To an as yet undefined extent, the Constitution in-
tends to irridiate democratic norms and values into the so-called 'private
sphere,' particularly the market, the workplace and the family. Where
applicable, the Bill of Rights binds private parties (s 8(2)). Private parties
are expressly barred from engaging in invidious discrimination (s 9(4)),
and government is obliged to enact legislation enforcing that command
(s 9(4), read with Schedule 6, item 23(1)). Workers are constitutionally
guaranteed basic rights of industrial democracy (s 23).
4. Participatory governance: The Constitution envisages inclusive, ac-
countable, participatory, decentralized and transparent institutions of
governance 19 and contemplates that government will actively promote
and deepen a culture of democracy (s 234).
5. Multi culturalism: The Constitution espouses an advanced cultural
politics. It celebrates multiculturalism and diversity within a framework
of national reconciliation and ubuntu, 20 and it expressly promotes gender
justice and rights for vulnerable and victimized groups and identities,
explicitly including protections for, e.g., gay people and the disabled. It
protects language diversity and respect for cultural tradition.
6. Historical self-consciousness: A particularly appealing feature of the
South African Constitution is its self-consciousness that it is an instru-
ment committed to social transformation and reconstruction. As Justice
Madala has written: '[The interim Constitution] is a document that seeks
to transform the status quo ante into a new order[.]' 21 The Constitution
does not even purport to present itself as timeless and metahistoric,
coming down from on high. It rejects the fiction that the political com-
munity is founded at a single magic moment of 'social contract,' thereby
ratifying the pre-existing hierarchy and distribution of social and eco-
nomic power. It evinces an understanding that legal and political institu-
tions are chosen, not given, that democracy must be periodically
reinvented, and that the Constitution itself is the contingent (even fra-
gile) product of human agency. Those who suffered and died to achieve
constitutional democracy in South Africa are expressly remembered and
honored. 22 This historical self-consciousness was most clearly articulated
in the Postamble to the interim Constitution, which presented the docu-
ment as 'a historic bridge between the past of . . . injustice, and a
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
[democratic] future.' 23 The 1996 text also contains numerous passages

acknowledging that constitutional provisions are not self-executing, but
are evolving texts that must be interpreted and applied. 24
This evidence of the substantively postliberal and transformative as-
pirations of the Constitution strongly implies another, less obvious, in-
novation. The Constitution invites a new imagination and self-reflection
about legal method, analysis and reasoning consistent with its transfor-
mative goals. By implication, new conceptions of judicial role and re-
sponsibility are contemplated. Judicial mindset and methodology are
part of the law, and therefore they must be examined and revised so as
to promote equality, a culture of democracy and transparent governance.
Accordingly, the drafters cannot have intended dramatically to alter
substantive constitutional foundations and assumptions, yet to have left
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.
II LAW & POLITICS IN ADJUDICATION: TRADITIONAL & CRITICAL VIEWS
Uncontroversially, democratic constitutions and foundational legisla-
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
'personal' or 'subjective' views, or, what is taken to be the same thing,
their 'political values' and 'ideological preconceptions.' (In this respect,
mainstream jurisprudence conflates the personal and the political.) In all
traditional accounts, the rule-of-law ideal is premised on a radical dis-
junction between law and politics and a sharp role-differentiation be-
tween what judges do and what politicians and political theorists do.
So, the very idea of transformative adjudication seems out-of-place with-
in liberal legalism.
As everyone knows, of course, adjudication runs head-long into the
problems of interpretive difficulty and the indeterminacy of legal texts.
Legal texts do not self-generate their meanings; they must be interpreted
through legal work. Legal texts, particularly constitutions, are shot
through with apparent and actual gaps (unanswered questions), conflict-
ing provisions, ambiguities and obscurities. Indeed, it is frequently de-
bated what the relevant text is, with respect to a particular legal problem,
e.g., where multiple legal sources (drafting history, prior lines of inter-
pretation, foreign authorities, etc.) are referenced, or where a document is
sought to be elucidated or trumped by other cultural artifacts (e.g.,
customs, accounts of popular morality, historical narratives, etc.). In
the face of gaps, conflicts, and ambiguities in the available legal materi-
als, what's a decisionmaker to do? Apart from abdication, there seems no
option but to invoke sources of understanding and value external to the
texts and other legal materials. 26 As Justice Mokgoro writes so candidly:
'[T]he interpretive task frequently involves making constitutional choices by balancing
competing fundamental rights and freedoms. This can often only be done by reference to
a system of values extraneous to the constitutional text itself .... To achieve the required
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.
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
contemporary jurisprudence consists of efforts to suppress or minimize
this danger. The goal is to maintain the law/politics boundary by describ-
ing rational decision-procedures (deduction, balancing, purposive reason-
ing, etc.) with which to arrive at determinate legal outcomes from neutral,
consensus-based general principles expressed or immanent within a legal
order. 29 There are many well-known strategies: confining external resort
(resort to extra-legal 'personal' or 'political values') to penumbral or
interstitial questions (H.L.A. Hart) or to questions within the functional
competency of the judiciary (Hart & Sacks); limiting judicial activism to
cases where essential in order to reinforce representative political pro-
cesses (Ely); reasoned elaboration of neutral principles (Wechsler); the
method of coherence and integrity (Dworkin); and so on. Alternatively,
theorists work hard to disavow the problem of gaps, conflicts and ambi-
guities by suppressing problems of interpretive difficulty (originalism,
ordinary language theory). The most common approach to the irreduci-
bly political character of interpretive practices is a diffuse but persistent
denial (conscious, semi-conscious, or unconscious) of the problem.
27 State v Makwanyane, 1995 (6) BCLR 665 (CC), at paras. 302-04.

Courthouse entrances in the U.S. often display an image of blindfolded Justice along with a
mantra such as 'Freedom Through the Rule of Law' reproduced in tall letters, perhaps even
carved in stone. Would it not promote transparency if at least one courthouse entrance,
somewhere, displayed the message: 'Freedom Through Conscientious and Humane Balancing
of Values External to Legal Texts'?
28 ld. at para. 207 (italics added). Justice Kriegler hastens to insist: 'Nevertheless, the starting
point, the framework and the outcome of the exercise must be legal.' ld. This combination of
candor and ambivalence is also reflected in Justice Didcott's remark:
'Whether execution ranks also as a cruel, inhuman or degrading punishment is a question that .
. . . calls for a value judgment ... that can easily become entangled with or be influenced by
one's own moral attitude and feelings. Judgments of that order must often be made by courts
of law, however, whose training and experience warns them against the trap of undue
subjectivity. Such a judgment is now required from us[.)'
ld. at para. 177
29 Cf. Joseph Singer, 'The Reliance Interest in Property,' 40 Stanford Law Review 611, 624 n. 39
(1987) (defining 'traditional legal theorists').
(1998) 14 SAJHR 159
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 . . .
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.
program). Rather, adjudicators perform work within a medium. The

medium is constraining (a sculptor working in clay cannot produce an
oil-painting or stained-glass window), but it is also far more plastic than
is commonly acknowledged (although not infinitely plastic).
So, what is the nature of legal constraint? Legal constraint is a parti-
cular kind of experience a legal actor has (or may have) in the course of
doing legal-interpretive work with legal materials. It is not an objectively
knowable quality of the set of legal materials themselves. Whether and
how strongly legal constraint is 'in effect' with respect to a particular legal
problem are matters of feeling, belief or conviction in the context of work
within the medium. No neutral decision procedures exist capable of
objectively and definitively establishing whether a given set of legal ma-
terials imposes tight, loose, little or no constraint on an outcome.
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
below, legal constraint is 'culturally constructed.' 34 Even within relatively

homogenous legal cultures, changes occur over time in sensibilities about
what types of arguments persuade, what kinds of authorities constrain an
outcome or lend support to a proposition, and so on. It is surely a
common occurrence for law professors to lampoon some decision, not
only for its result, but for its anachronistic reasoning style ('Can you
imagine? Respectable lawyers once actually believed that this was a
plausible way to argue!'). And in pluralistic or highly conflictual legal
cultures (e.g., the U.S. in the 1930s), overt contestation over questions of
what should and should not persuade, bind, and constrain are quite
common.
It follows that the traditional, bright-line framing of the law/politics
dilemma in adjudication is simplistic. The traditional formulation of the
problem is, what should the decisionmaker do when presented with a
palpable gap or outright contradiction in the legal materials? Fearing
that personal values or politics will seep into the breach, traditional
jurisprudence fights a rearguard action to keep the problem at bay
(usually by conceiving of ways to suppress the ambiguity or by arguing
that the proper course is to avoid decision, e.g., by remitting the case to
the legislature). The truth is, this is not the most troubling problem for
adjudication theory. The greater difficulty arises because decisionmakers
are often unsure (and cannot know for certain) whether they have
reached one of those special junctures at which the constraining poten-
tial of the materials is exhausted.
Thus, the more challenging question is, what should happen when the
decisionmaker is genuinely unsure about whether she is bound, as, for
example, when the precedents appear to run against the decisionmaker's
moral intuition about how the case should come out, but it is not yet clear
how strong the authority of these precedents is, or whether a line of
contrary authority is out there waiting to be discovered. A responsible
decisionmaker cannot resolve the case simply by consulting her politics/
morals - even if external resort were considered proper - because the
judge's ideological preconceptions are not likely to tell her very much
about how, as a professional, she can respond to the adverse precedent.
Conceivably it might be argued that an adjudicator in this situation
(facing a conflict between one's political or moral intuition and an ap-
parent line of adverse authorities of uncertain force) should simply go
with her first impression of legal constraint. But I think most lawyers
would suggest that the proper course at this juncture is further reflection
and analysis, that is, that the adjudicator should do some more legal
work before coming to a decision. If, impelled by her political values
or moral intuitions, the decisionmaker works with the materials, in the
34 See Duncan Kennedy, 'Towards An Historical Understanding of Legal Consciousness: The

Case of Classical Legal Thought in America, 1850-1940,' 3 Research in Law & Sociology 3
(1980).
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-
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
engage - partially constitutes the legal materials, thereby imbuing them

with value-laden meanings. Indeed, legal work even shapes lawyer's sense
of what materials are pertinent to a particular legal question. 35 Second,
judges and other participants in adjudication constantly make conscious
and unconscious choices about how to deploy their intellectual energy
and resources. These choices rest on values, perceptions and intuitions
external to the legal materials, since the choices only arise in response to
apparent gaps, conflicts and ambiguities in the materials. And, because
lawyer's interpretive practices partially constitute the legal materials,
decisionmaker's choices about how to deploy their intellectual resources -
made pursuant to their underlying moral and political concerns - affect
the accumulated, substantive meanings we attribute to the legal materi-
als. 36 It follows that in contested cases, what makes for a 'good' or
'legally sound' or 'legally correct' interpretation is partly a question of
the practitioner's training, skill and insight, and partly a question of
choices about the allocation of her intellectual energies and resources.
But the latter turn ultimately on moral and political sensibilities and
convictions that cannot be derived entirely from the legal materials, since
it is often the case that the meaning and constraining power of the legal
materials is uncertain and unknowable without the intervention of legal
work. 37
In short, the judge's personal/political values and sensibilities cannot be
excluded from interpretive processes or adjudication. Not because judges
are weak and give in to political temptation, but because the exclusion
called for by the traditional rule-of-law ideal is quite simply impossible.
Nor can the intercession of external values be restricted to a narrow range
of 'special' (interstitial, penumbral) cases - because no neutral decision
procedures (i.e., decision procedures that do not involve interpretive
work) are available to tell us whether a given case is an ordinary or
'special' case. The judge's political and moral values therefore play a
routine, normal, and ineradicable role in adjudication. Accordingly, ex-
amination of the judge's underlying political and moral convictions and
preconceptions is an appropriate line of legal commentary and criticism.
If the values influence the results, the community's assessment of the
judge's work-product (decisional outcomes) ought appropriately to
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.
turn, at least in part, on the community's judgment of the worth of her

motivating values. We have no solely legal criteria of correctness for
resolving contested cases apart from the persuasive 'deployment of the
argumentative tools that legal culture makes available to judges trying to
generate the effect of legal necessity. ' 38 It is therefore impossible to say in
contested cases what is the correct, non-strategized legal solution (that is,
the correct solution excluding judges' strategic choices about work).
Judges- and the advocates, academics and parties who influence their
thinking - make value-laden choices in the routine course of legal inter-
pretation. They are responsible for the social and distributive conse-
quences that result from these choices, and should be judged
accordingly. 39 If this is right, then there is nothing legal practitioners
can do but acknowledge their political and moral responsibility in adju-
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
38 Duncan Kennedy, 'Strategizing,' op. cit. note 31 supra, at 797.

39 I should surface three important but very controversial assumptions built into this statement.
Elaboration and defense of these assumptions are beyond the scope of this paper.
First, the statement assumes that judicial decisions matter (or at least sometimes matter), in
the sense that they can generate distributive and ideological consequences. This proposition is
explicated and defended in Kennedy, 'The Stakes of Law,' op. cit. note 31 supra; and, Klare,
'Legal Theory and Democratic Reconstruction,' op. cit. note 31 supra, and 'Workplace
Democracy & Market Reconstruction,' op. cit. note 31 supra.
Second, many theorists and critics who acknowledge that, for better or worse, judge's
political values influence and steer adjudication often further assume that, in the presence of
legal ambiguity, a decisionmaker can resolve or 'tip' the question simply by consulting her
political values. But political and moral ideas can be and often are deeply indeterminate in
precisely the same manner as the legal field (gaps, conflicts and ambiguities). Therefore, a judge
who consults her politics in order to resolve a case (whether this procedure is considered
legitimate or illicit) faces similar problems of interpretation to the ones she faces in working
with legal materials. Accordingly, reference by the decisionmaker to external political and
moral values may not determinately 'tip' the case. To put it another way, whether resort to
extra-legal values will resolve a difficult case is a matter of interpretation or belief, not an
objectively knowable property of a given set of political convictions. Sometimes a person's
political values will seem to point very clearly and unambiguously toward a certain legal
outcome, but sometimes that impression of certainty will be,absent, or an earlier impression of
relative certainty will succumb to dissolution.
Third, one can accept the previous point (regarding the indeterminacy of political ideology)
and nevertheless believe in the coherence of political and moral claims and in the possibility of
reasoned discourse about political and ethical questions. The claim about indeterminacy is not
an argument for, nor does it entail, ethical relativism.
(1998) 14 SAJHR 165
procedures and fundamental (nonmajoritarian) human rights. A more

politically self-conscious and candid legal process would surely be faith-
ful to the Constitution's democratic ethos and, in particular, would
comply with and give meaning to the explicit command of s 41(1)( c)
that all organs of state at every level 'must - ... provide ... transpar-
ent, accountable and coherent government[.]' Indeed, the Constitution
seemingly imposes an obligation of political self-reflection and candor
upon the judiciary.
Nonetheless, judges and advocates frequently misunderstand and un-
derestimate the extent of legal indeterminacy. It is common, even typical,
for lawyers authentically to believe themselves constrained by legal ma-
terials when further reflection would reveal that they are not. Even
among legal actors very attuned to the problem of legal indeterminacy,
by far the most common response to it in Anglo-American legal cultures
(including the U.S. and South Africa) 40 is denial. For judges and lawyers
to come face to face with their interpretive, law-making power and,
therefore, their responsibility for socially significant decisions, is disquiet-
ing in legal cultures so profoundly steeped in the ideals of legislative
supremacy and the rule of law. The insight threatens anxiety, role-con-
fusion and fear of professional censure and public disgrace. Denial is a
strategy for rep'ressing this anxiety, for wishing it away. 41 It is in the
nature of denial that one ordinarily doesn't have a whole lot of self-
consciousness about it, which of course would defeat the purpose. Occa-
sionally, exceptionally insightful legal theorists and judges bring these
issues to the surface. From the South African literature we have, for
example, Justice Mokgoro's and Justice Kriegler's brave words quoted
above from Makwanyane leveling with their readers about the nature of
adjudication. A memorable but unusual example from the U.S. literature
is Professor Kessler's classic remark: '[A]pparently the realization of
deepgoing antinomies in the structure of our system of contracts is too
painful an experience to be permitted to rise to the full level of our
consciousness.' 42 But on the whole, judges are reticent and diffident
about acknowledging their power. Judges and the advocates who seek
to persuade them almost always 'aim to generate a particular rhetorical
effect through [their legal] work: that of the legal necessity of their solu-
tions without regard to ideology.' 43 As artifacts generating significant
legitimation effects within the profession and within the political culture
generally, the work-product of most judges goes to considerable lengths
to efface the components of choice and power.
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.'
Denial is a general phenomenon, but arguably additional considera-

tions arise in the context of the new South Africa. Here, so goes the claim,
the symbolism/mythology of the rule-of-law lends critical, legitimating
support to the fragile processes of democratic transition. In the common
case, e.g., the U.S. during most periods," denying the politics of adjudica-
tion legitimates the status quo and obscures the possibility, and therefore
the desirability, of social change. But, it has been argued, the reverse may
well be true in South Africa today. The fictions of politically and morally
neutral adjudication and of the impersonal rule of law may be essential
ideological underpinnings of forward progress toward democratic transi-
tion.44
I take for granted that democracy is irreversible in South Africa. But
South African judges may have concluded - rightly -- that the political
situation is more delicate than I appreciate and that there is a serious,
destablizing downside to the punctilious candor about the politics of
adjudication that I advocate. South African judges daily confront and
cope with realities and risks from which a North American legal scholar
is comfortably insulated. Be that as it may, the confluence of individual
judges' need to deny their power with a strong sense that successful
transition requires celebration of the impersonal rule-of-law ideal gener-
ates substantial pressures in South Africa to reaffirm the law/politics
distinction.
These observations move the discussion from the individual to the
cultural or social-psychological dimension. Belief in the law/politics dis-
tinction and adjudicative neutrality both sustains and is sustained by the
legal culture as a whole and the general political culture. With this in
mind, I turn to a more detailed look at how legal cultures interact with
substantive constitutional development.
III LEGAL CULTURE
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
philosophy), are deemed outside the professional discourse of lawyers?" 5

What enduring political and ethical commitments influence professional
discourse? What understandings of and assumptions about politics, social
life and justice? What 'inarticulate premises, [are] culturally and histori-
cally ingrained' 46 in the professional discourse and outlook?47
A defining property of legal cultures, particularly relatively homoge-
neous and stable legal cultures, is that its participants tend to accept its
intellectual sensibilities as normal. That is, participants often do not
perceive the cultural specificity of their ideas about legal argument. A
legal actor trained and socialized to find a certain type of argument
compelling and another type to be utterly unconvincing will tend to
think those are innate properties of the types of argument, rather than
perceiving what is in fact the case, namely, that the impressions lawyers
have of convincingness and unconvincingness are cultural artifacts. It is
often quite difficult from within a particular legal culture to appreciate its
uniqueness and contingency or to bring to bear on legal problems alter-
native conceptions of convincingness. 48
Thus, participants in a legal culture are often unaware or only partially
attentive to its power to shape their ideas and reactions to legal problems.
Human practices, including legal practices, are situated. They can occur
only in the context and through the medium of culturally available
symbols and understandings (the 'cultural code'). The collectively cre-
ated structures of meaning and recognition in and through which we
have experience orient our perceptions, thoughts and feelings, and shape
our imagination and beliefs. Although these meaning systems are con-
tingent products of human action, they will, in the absence of critical self-
reflection and/or transformative experience, appear to be natural and
fixed. Of course it is possible for lawyers to experience an external per-
spective on their legal culture of origin - either by immersion in another
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.
legal culture or because their own undergoes a period of dramatic conflict

and transformation. Such experiences can put one in touch with the
relative contingency of one's own professional norms or even produce
the further experience of the dissolution of formerly powerful, but no
longer convincing, claims of legal or social necessity.
This property of legal culture - that participants are often unaware of
how it shapes their professional beliefs and practices - affects the sub-
stantive development of law. If cultural coding sets limits (however im-
plicit or unconscious) on the types of questions lawyers ask and the types
of evidence and argument they deem persuasive, surely this in turn sets
limits on the kinds of answers the legal culture can generate. Legal culture
has a powerful steering or filtering effect on interpretive practices, there-
fore on adjudication, and therefore on substantive legal development (at
least in societies in which adjudication is a significant source of law-
making). On-self-conscious and unreflective reliance on the culturally
available intellectual tools and instincts handed down from earlier times
may exercise a drag on constitutional interpretation, weighing it down
and limiting its ambition and achievements in democratic transforma-
tion. In my view, this is particularly a risk in South Africa today. Con-
versely, searching and critical examination of the legal culture and its
multifaceted and diffuse influences on interpretive practices would seem
to be a constitutional duty in the new dispensation.
A visiting U.S. lawyer cannot help but be struck by the conservativism
of South African legal culture. In this context, 'conservatism' does not
refer to political ideology. Rather, I mean cautious traditions of analysis
common to South African lawyers of all political outlooks. Even the
most optimistic proponents of progressive social change often display
the same jurisprudential habits of mind as shown by their more pessimis-
tic or politically conservative colleagues. South African lawyers, regard-
less of political inclination, appear to find persuasive or even compelling
legal arguments of a type that U.S. lawyers, again across the political
spectrum, tend to find unconvincing. Of course, the reverse is also true,
and there are any number of counter-examples to these generalizations
on both sides of the Atlantic. Nonetheless, even allowing a substantial
discount for exaggeration and literary license, and accounting in advance
for the myriads of counter-examples, U.S. lawyers are often struck by
their South African colleagues' relatively strong faith in the precision,
determinacy and self-revealingness of words and texts. Legal interpreta-
tion in South Africa tends to be more highly structured, technicist, literal
and rule-bound than in the States, whereas U.S. legal culture is much
more policy-oriented and consequentialist. South African lawyers appear
more prepared than their U.S. counterparts to deduce relatively specific
conclusions from general and abstract premises, with fewer intermediate
steps than the Americans would look for. There is a bit more reverence
for law among South African lawyers and, I might add, South African
(1998) 14 SAJHR 169
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-
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).
jurisprudentially progressive argument-types (e.g., purposive or instru-

mental arguments). Similarly, liberal judges often resort to high formal-
ism and literalist technicality to accomplish their projects.
This is an important and counter-intuitive point, so I will underscore it.
There is no necessary correlation between judicial style and interpretive
method, on the one hand, and political ideology on the other. The South
African case classically illustrates this proposition. Under apartheid, legal
formalism opened and protected precious space for oppositional activity.
Highly technical or literalist arguments, of a jurisprudential type that
should make proponents of transformation blush, sometimes produced
politically and morally progressive results in labor law, human rights,
criminal proceedings, even in challenges to state-of-emergency regula-
tion.50 It therefore makes sense that the most imaginative, transforma-
tion-oriented South African judges and lawyers today would bring a
certain appreciation and respect for legal formalism to their work-style.
As the U.S. case shows, a progressive or transformative approach to
adjudication and legal method is no guarantee of politically and socially
transformative outcomes. In the U.S. lately we have a relatively progres-
sive legal culture encased within a conservative political culture, so it is
not surprising that legal outcomes have tended toward the politically
conservative in recent years. While not sufficient, I do believe that a
progressive legal culture is a necessary condition for a long-term success
of transformative constitutionalism.
From that point of view, progressive U.S. lawyers find South African
interpretive or jurisprudential conservativism puzzling. 51 One has the
indelible impression of a disconnect or chasm between the Constitution's
substantively transformative aspirations and the traditionalism of South
African legal culture. If there is anything in this observation, it should be
a matter of both academic and normative concern. For one thing, the
conventions of their legal culture make it particularly uncomfortable for
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
South African lawyers to acknowledge their political discretion and

power in adjudication. But expressions of faith in the constraining power
of legal texts and ritual invocation of the law/politics boundary obscure
and mystify the choices judges and advocates routinely make in their
interpretive work. This reduces the transparency of the legal process,
thereby undermining its contribution to deepening democratic culture.
Moreover, jurisprudential conservatism (as defined here) may induce a
kind of intellectual caution that discourages appropriate constitutional
innovation and leads to less generous or innovative interpretations and
applications of the Constitution than are permitted by the text and
drafting history. Even progressive judges comfortable with an activist
role may take for granted limitations on their interpretive scope that
owe more to tradition than to the responsibilities and obligations of
their role under this Constitution.
'Caution,' here, does not connote any unwillingness to take bold steps
or to rock the boat. To its great credit, the Constitutional Court has
already shown itself quite prepared to act boldly, e.g., in the death
penalty case or, say, the Western Cape decision. 52 Caution in this context
refers to a legal actor's relationship to legal materials and to interpretive
work, not to her moral courage. It connotes reluctance to press legal
materials toward the limits of their pliability, a tendency to underesti-
mate the plasticity of the legal materials, and an exaggerated concern to
give the appearance of conforming to traditional canons of interpretive
fidelity. My fear is that 'caution' of this kind (some would call it 'pro-
fessionalism') might in some cases discourage a judge or advocate from
investing intellectual resources in interpretive projects that might, if suc-
cessful, produce 'non-obvious' results (i.e., results that, while morally or
politically appealing, appear to require a leap too far beyond what the
legal materials - on first impression - appear obviously to require or
permit). Constitutional transformation might suffer accordingly.
On April27, 1994, South Africans authorized a new, transformed legal
culture (among other accomplishments of that magnificent day). But it is
very hard to develop and elaborate a new legal culture with the tools,
training and habits of mind of earlier times. Allowing every possible
deference to the obligations of the offices they hold and to the presump-
tive supremacy of representative political processes, South African judges
(particularly at the Constitutional Court level) should be encouraged to
reexamine their discursive practices with an eye toward asking whether
the project of democratic transition does not afford them a bit more
scope for interpretive creativity and innovation than they might at first
imagine- so long, that is, as their work-product promotes the democratic
and egalitarian values enshrined in the Constitution. Future generations
52 Executive Council, Western Cape Legislature v President of the Republic of South Africa, 1995
(10) BCLR 1289 (CC).
will judge the Constitutional Court by the contribution it makes to

achieving equality, advancing social justice, and deepening the culture
of democracy, multiracialism, and respect for human dignity. How
tightly the Court squares its arguments with textbook canons and max-
ims will be far less important at the end of the day.
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
choice and responsibility in adjudication. I do not argue that the Court
reached the wrong results. As it happens, I deeply admire Makwanyane,
generally agree with Ferreira and disagree with Du Plessis. But that is
beside my point, which is that in each case the Court was less legally
constrained and had more room for interpretive maneuver than it under-
stood and/or acknowledged. If I am correct in this, two possibilities
follow: the Court might have reached different or differently justified
legal conclusions; and, the Court lost important opportunities to articu-
late and explore the nature of the jurisprudence launched by the Consti-
tution.56
l. Makwanyane: The death penalty decision combines a politically
progressive result and robust, probably counter-majoritarian judicial
activism with a surprising amount of jurisprudential conservatism. In
this respect there is a certain continuity between Makwanyane and hu-
man-rights activism during the apartheid era (not surprising, given the
Court's personnel).
Every justice wrote, and the opinions display a wide variety of styles
and interpretive methods. Internal to some of the opinions is a manifest
ambivalence about the judicial role. This all makes generalization about
53 State v Makwanyane, 1995 (6) BCLR 665 (CC).

54 Ferreira v Levin NO, 1996 (I) BCLR (CC).
55 DuPlessis v De Klerk, 1996 (5) BCLR 658 (CC).
56 As a guest in the South African legal community, I should emphasize how deeply my U.S. co-
workers and I respect the achievements of the Constitutional Court. The decision in
Makwanyane alone entitles this Court to an honored place in legal history. My comments that
follow are offered in that spirit. I make a point of saying this because of the following cross-
cultural observation. One senses that, as a matter of tradition and style, academic criticism of
judicial work-product in South Africa is more restrained and distanced than we are used to in
the U.S., where robust, root-and-branch criticism is considered perfectly within the bounds of
respectful commentary. For example, I notice with interest that even so bold and searching a
commentator as Minister of Water Affairs & Forestry Kader Asmal recently reminded his
readers (in the course of an article advocating that democratic transition include judicial
reappointment proceedings) that judges 'should be criticised in restrained fashion[.)' 'A Second
Look,' E-Mail & Guardian, issue dated 23 January 1998 (not paginated). My case comments
are intended to be, and hopefully will be taken as, entirely within that frame of reference.
(1998) 14 SAJHR 173
the jurisprudence of Makwanyane treacherous. With that caveat, how-

ever, and despite the genuine awe with which progressive lawyers in the
U.S. contemplate the Court's achievement in Makwanyane, some aspects
of the written opinions strike a foreign observer as puzzling and unper-
suasive.
Makwanyane presented the Court with a uniquely difficult problem of
institutional legitimacy. The Court was no doubt anxious to affirm that it
fully internalizes the desirability and appropriateness of judicial deference
to the popular will in the first democratically elected South African gov-
ernment. Yet the negotiating process had failed to resolve the death-
penalty issue and delegated it to the Court for decision. Still, the Court
went to great lengths to buttress the legitimacy- the 'law-ness,' if you will
-of its decision by repeated affirmation of the law/politics distinction and
by attempting to ground its decision in very general human rights princi-
ples that could be made to sound above controversy. 57
To be sure, some justices used the occasion to spin out tentative
threads of the underlying value structure through which they understand
and propose to interpret the Constitution. That is, some opinions read as
exercises in creating new political theories of South African transforma-
tion, although the impression sought to be left, denying agency, is that
these political theories are inherent within the Constitution's text and
historical context. These passages are the most legally innovative aspects
of the Court's judgment, and by far the most transparent. In this regard,
one thinks particularly of the opinions of Justices Langa, Madala, Ma-
homed, and Mokgoro seeking to give content to the concept of ubuntu
and/or otherwise explaining their opposition to capital punishment in
philosophical terms and also specifically in terms of the evils of the
apartheid system and of the need to create a new culture of democracy
for the future. 58 Even still, a U.S. reader is struck by the generality and
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).
abstraction of these efforts, and particularly by how little the Court

actually says about the symbolic and instrumental role of the death
penalty in making South Africa the type of society it was under apart-
heid. Similarly, one is surprised that so little is made of the essential
connection of the death penalty to racism and racial domination. And
while equality is of course referenced as a value integral to the new
Constitutional dispensation, one would have thought the equality clause
would have figured more prominently and directly in the Court's legal
analysis. The argument from the equality clause (whether as an indepen-
dent ground of decision, or to elucidate the meaning of other constitu-
tional provisions) was well known to the Court: in an unequal, racialized
society, the death penalty is incapable of race-neutral application. Var-
ious justices in fact relied on this argument in passing, but it remains a
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
for gardening at the Parliament building) whilst preventable infant

mortality or fatal child malnutrition still exist in South Africa. To reach
the conclusion that the 'right to life' entails abolishing capital punish-
ment, one must provide a theory or interpretation of what 'life' within
this section of the text means or, rather, should mean. That is, one must
perform convincing interpretive work with the text.
Justices Didcott and Mahomed make a start by distinguishing capital
punishment from the case, e.g., of loss of life during a police operation to
rescue hostages. The latter is an unintended consequence of emergency
action, whereas the former is a deliberate, planned and methodical pro-
cedure to accomplish the state's goal of punishment. To be sure, these
cases are clearly distinguishable, and perhaps the distinction ought to
make a constitutional difference. But merely stating the distinction does
not establish the constitutionality of the use of weapons to rescue hos-
tages and/or the unconstitutionality of capital punishment. To reach
these conclusions requires an explanation of the moral difference be-
tween the cases in light of some theory of the intention of the word
'life' fairly attributable to the drafters, which neither Justice Didcott
nor Deputy President Mahomed provide. Surely it is insufficient merely
to assert that the 'core' meaning of life is that capital punishment is
forbidden, which is essentially all that Justices Didcott (at para. 176)
and Mahomed (at para. 269) tell us. To argue thus is to efface judicial
power and responsibility, and to attribute a constraining power to texts
that they do not possess (or perhaps I should say more precisely, to
attribute a constraining power to this text that it has not been shown
to possess).
2. Ferreira: This case concerns proceedings to 'wind up' companies
unable to pay their debts. Section 417 of the Companies Act, 60 permits
a court or the master of the Supreme (now High) Court to compel
testimony concerning the company's affairs, even if that testimony may
tend to incriminate the examinee; it further expressly provides that such
compelled, incriminating testimony may subsequently be used in evidence
against the examinee. In a lengthy61 and complex judgment, the Court
held compulsory self-incrimination to be unconstitutional, although there
was disagreement as to the rationale and, indeed, the precise constitu-
tional provision offended. The justices did agree, however, on the 'extent'
of their invalidation of compelled self-incrimination; namely it is uncon-
stitutional to the extent of the use of the compelled testimony in subse-
quent criminal proceedings (other than prosecutions for perjury). 62 That
60 Act No. 61 of 1973.

61 As published in Butterworths Constitutional Law Reports, the Court's judgments in Ferreira
run to 129 pages, as compared to 119 pages for the death penalty decision.
62 See paras. 156-57 (proposed order of Justice Ackermann, agreed to by a majority of the Court
on other grounds). Justice Kriegler would have dismissed without granting relief.
is, the Court decided that, to be constitutional, compelled self-incrimina-

tion must carry with it a guarantee of so-called 'use immunity' (no
subsequent use of the testimony in criminal proceedings). By implica-
tion, the Court decided that the Constitution does not require more
protective forms of immunity, such as 'derivative immunity' (no subse-
quent use of the compelled testimony or of other evidence derived from
the compelled testimony) or 'transactional immunity' (no subsequent
prosecution with respect to the transaction or incident that is the subject
of the compelled testimony) (paras. 150-52).
Ferreira differs from Makwanyane in that the justices here engage in an
elaborate and sustained exercise in political theorizing, very explicitly so
in Justice Ackermann's case. Justice Ackermann relies heavily on a con-
ception of 'negative liberties' derived from such diverse philosophical
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
So, Ferreira is very bold jurisprudentially, in the sense of candid ac-

knowledgment that judges have legitimate resort to concerns and debates
within political philosophy. And it is an 'activist' decision in the sense
that the Court strikes down legislation enacted by Parliament. At the end
of the day, however, the outcome reflects a quite conventional, middle-of-
the-road compromise, and the majority is at some pains to repudiate
Justice Ackermann's effort to attribute a robust and, one might say,
adventurous, content to the s 11 right to 'freedom and security of the
person.' Still, the politics of adjudication are relatively close to the surface
in Ferreira.
Precisely for this reason, the level of ambivalence about and denial of
judicial power and responsibility expressed in Ferreira is striking. Many
of the particular arguments advanced are puzzling or unpersuasive. The
written opinions are marbled with rhetorical strategies designed to con-
vey an (ultimately implausible) impression of legal necessity, to exagge-
rate the constraint imposed by the legal materials and to efface judicial
power. These rhetorical devices cumulate incoherently. Possibly, the
barely suppressed tension the Court experienced between its desire to
be transparent and its need to deny drove it to its conventional result
and rejection of more daring alternatives. 64
Justice Ackermann should be applauded for taking up philosophical
issues explicitly and for attempting to weave a political theory into con-
stitutional decisionmaking. Unlike less self-conscious jurists, he surfaces
the ideas that inspire his interpretive work thereby rendering them avail-
able to the public for examination and discussion. Left unexplained,
however, by Justice Ackermann's otherwise challenging and thought-
provoking opinion, particularly regarding his reliance on a theory of
negative liberties (if only provisionally), is, why turn to Kant, Popper
and Berlin to interpret South Africa's new Constitution instead of, say,
Mandela, or Sobukwe, or Biko, or the Freedom Charter, or Havel, or
feminist legal theory, or some other theory? As great philosophers in the
liberal tradition, perhaps the former are better sources of guidance on the
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).
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
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
of connection between legal culture and substantive constitutional orien-
tation.66
Du Plessis addresses questions concerning the scope of constitutional
application, viz., what parties are bound to observe the rights and free-
doms proclaimed in the Bill of Rights. Are 'private,' meaning non-gov-
ernmental, parties so bound? Does governmental action occur when a
common law court awards damages for defamation? Does the South
African Bill of Rights have 'horizontal' application or does it apply only
in the 'vertical' relationship of government to citizen?67
The Court majority concluded (through several distinct reasoning
paths) that, in Acting Justice Kentridge's formulation, the interim Bill
of Rights (Chapter 3) 'does not have a general direct horizontal applica-
tion but that it may and should have an influence on the development of
the common law as it governs relations between individuals' (para. 62
(citation omitted)). Accordingly, it was held that the interim Constitu-
tion's guarantee of freedom of expression does not directly apply to or
impede a court from awarding damages against a private party guilty of
defamation. However, freedom of expression concerns must be taken into
account in developing doctrine in the defamation field, so that the new
Constitution might indirectly produce a speech-protective revision of tort
rules.
As can be seen, the Court opted for a restricted approach in Du Plessis,
reading an ambiguous text to favor vertical plus indirect horizontal
application rather than direct horizontality. It thereby rejected a more
adventurous and potentially transformative interpretation. To put it
another way, the Court engrafted the public/private distinction of classi-
cal liberal political theory, along with its considerable conceptual bag-
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.
gage, onto the interim Constitution. The Constitutional Assembly subse-

quently made clear that it wanted something more robust. The applica-
tion clause in the final Constitution is broader than the comparable
provisions in the interim Text interpreted in Du Plessis, so that the
Constitution now explicitly calls for direct horizontal application. 68
The case produced a sharp split on the Court. Justice Kriegler, joined
by Justice Didcott, passionately dissented from the majority's conclu-
sions regarding constitutional application. He argued that the Constitu-
tion is not a classical liberal document, but something else, 'unabashedly
egalitarian and libertarian' and dedicated to social reconstruction (paras.
126 and 125). Further:
'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. And I am grateful to the drafters ...
for having spared us the jurisprudential gymnastics forced on some courts abroad. They
were good enough to say what they mean. The Constitution applies to all three of the
pillars of the state and Chapter 3 applies to everything they do' (para. 147).
And most tellingly:

'No one familiar with the stark reality of South Africa and the power relationships in its
society can believe that protection of the individual only against the state can possibly
bring [the] benefits [of an open and democratic society based on freedom and equality]'
(para. 145).
Though differing amongst themselves and with Justice Kriegler, Jus-

tices Mahomed, Mogkoro, and Sachs also took a broader view of con-
stitutional application. However, in the end, all three concurred with
Justice Kentridge's proposed order, thereby stopping short of declaring
for direct horizontal application of the Bill of Rights. Justice Madala also
agreed with Justice Kentridge's resolution of the particular case, but
'part[ed] ways' thereafter:
'I do not subscribe to the view that [the Constitution's) operation is limited to verticality
only .... [I]n many instances the abuse in the exercise of power is perpetrated less by the
State and more by private individuals against other private individuals' (paras. 151-54).
In addition to the substantive question of constitutional application,

Du Plessis decided a threshold issue concerning whether the Court may
apply constitutional guarantees in adjudicating events that occurred be-
fore April 27, 1994, the Constitution's effective date. On this point, the
Court unanimously concluded that the Constitutional guarantee of free-
dom of expression could not be invoked as a defense to tort claims arising
from defamatory conduct alleged to have occurred before the commence-
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
ment of the new Constitution. 69 Unlike the difficult question of constitu-

tional application, the threshold issue seemed an easy one to the Court.
This impression was too facile: in fact, the threshold issue involved
subtleties and choices which, it is respectfully submitted, the Court
glossed over.
To put my cards on the table, I am sympathetic to horizontality and
therefore find the Court's decision in Du Plessis disappointingly timid.
But my point here is not to argue for the horizontal approach so much as
to explore the mindset and discursive practices that led to the Court's
result (as well as those influencing the dissenters). Assume for purposes of
discussion that the 'vertical plus indirect horizontal' formula upon which
the Court settled is a wise solution for South Africa. What background
assumptions and intellectual instincts led the majority to its result? What
background assumptions and instincts led some of the dissenters to
concur in the Court's resolution of the Du Plessis case?
The legal materials did not require the Court's outcome. It was chosen.
If you will, it was enacted by the Court. 70 My claim is that ingrained
intellectual instincts and sensibilities weighed more heavily in the decision
than legal necessity or partisan political orientation, and that very similar
intellectual sensibilities tugged on the minds of the dissenters. If this is so,
then legal culture played a large role in Du Plessis, and, in turn, the
decision is an important cultural artifact that reinforced, rather than
transformed, the pre-existing legal culture.
In a pattern now familiar, Du Plessis strives to efface judicial power
and choice. A striking example is Justice Kentridge's treatment of the
'retrospectivity' question, with which the other justices agreed in essence
(with the exception of Justice Kriegler), and which works hard to create
an impression of judicial passivity in the face of the impersonal and
inexorable workings of the rule of law. A newspaper published articles
in 1993 allegedly implicating the plaintiffs in illegal air operations to
supply UNITA rebels in Angola. The plaintiffs sued the newspaper
and various of its personnel for defamation. The defendants' initial
response, filed prior to April 27, 1994, admitted publishing the articles
but claimed that the statements were not defamatory and/or that they
were privileged as fair comment. In October 1994, defendants applied to
amend their initial plea to add the further defense that the free expression
provision of the interim Constitution, s 15, protected the articles from
legal sanction. The trial court denied the application on two grounds
which it then referred to the Constitutional Court (no retrospective
effect on proceedings pending in court prior to April 27, 1994, and no
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.
horizontality). The Constitutional Court also granted defendants leave to

appeal the denial of their application to amend their plea.
In refusing the defendants' application, the court below relied on
s 241 (8) 71 to conclude that the free-expression guarantees of the interim
Constitution did not project back before April 27, 1994 to protect defa-
matory statements published in 1993. Subsequently, the Constitutional
Court authoritatively announced a narrower interpretation of that provi-
sion in State v. Mhlungu, namely, that s241(8) was meant only 'to pre-
serve the authority of pre-Constitution courts to continue to adjudicate
pending cases[,]' 72 not to settle whether the interim Constitution might
have any legal application to pre-commencement events. Indeed, Mhlun-
gu provides that persons accused in criminal cases pending on April 27,
1994, may assert certain constitutional rights having to do with fair
criminal trials. Thus, the denial - on s 241 ( 8) grounds - of the Du Plessis
defendants' application to amend their plea could not stand. Accord-
ingly, in its order setting out the matters for argument in Du Plessis,
the Court reformulated the threshold issue thus: 'Are the Defendants
entitled to invoke the provisions of the [interim] Constitution notwith-
standing that - (i) publication of the offending material had already
occurred; and/or (ii) the action was instituted; and/or (iii) all relevant
facts occurred before the Constitution came into operation?' (at para.
10). Notice that this careful statement of the issue makes no reference
to 'retroactive application' or 'retroactive effect,' which would have nar-
rowly pigeon-holed and prejudged the defendants' theories.
Nevertheless, when the Court came to decide the case, it re-conceived
the issue in retroactivity terms, a mental shift that doomed the defen-
dants' claim. Justice Kentridge found that the defendants' cause faced an
'insuperable' difficulty, warranting dismissal of their appeal without
further discussion on the merits, namely their 'inability to point to any-
thing in the Constitution which suggests that conduct unlawful before the
Constitution came into force is now to be deemed lawful by reason of the
[fundamental rights entrenched in] Chapter 3' (para. 14). 73 Thus, the
Court answered a different question than the one the defendants had
raised and upon which the Court had ordered argument. The question
in the case, as Justice Kentridge ultimately acknowledged, is not how the
Constitution bears on the acts of private parties occurring before April
27, 1994, but whether the Constitution bars agencies of the South African
state from acting now, after 1994, inconsistently with constitutionally guar-
anteed rights. One can believe that a court order issued and effective in
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
1996 is post-Constitution governmental conduct that must be tested

against the freedom of expression guarantee, without claiming (what-
ever such a metaphysical statement would mean) that the Constitution
transmutes the defendants' conduct that was illegal in 1993 into conduct
that is legal in 1996. The question the defendants actually posed is, would
an award of damages for a newspaper story on a matter of vital public
interest cause a constitutionally unacceptable chilling effect on expres-
sional rights? Perhaps the answer to that question is 'no,' but it is a
question about the current power of courts, not a question about the
alchemy of retroactivity.
Justice Kentridge may have reached the right result on the threshold
issue. Perhaps the potential chilling effect on expressional-rights is so
negligible that public policy does not require courts to withhold damages
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).
defends, this proposition. In a classic example of circular argument,

Justice Kentridge simply states his conclusion as a premise, taking as
self-evident that the defendants' claim of a danger to expressional free-
doms is groundless. 75
Turning to the substantive constitutional question, the verbal fire-
works disguise that the justices may have a bit more in common at the
level of their deepest intellectual instincts than at first appears. Justice
Kentridge endorses the Canadian view - taken from an entirely different
context than the new South Africa - that a court order is not a form of
governmental action directly answerable to the Bill of Rights. Further to
the theme of effacing judicial power and agency, his tacit assumption is
that the common law rules that structure social life and distribute power
are a kind of neutral background for which government is not respon-
sible. The 'naturalization' of the common law in traditional legal culture
is closely and deeply connected to the idea that judges are not strategic
actors who bear political and moral responsibility (if partial) for con-
structing the institutional contours of social life.
The salient feature of Justice Kentridge's discussion to a U.S. lawyer's
eyes is its abstraction and distance from the South African context and its
heavy reliance upon a formalistic style of analysis. He nowhere considers
whether the transformative aspirations of the South African Constitution
raise a presumption that a non-traditional solution is sought. Of course,
Justice Kentridge makes appropriate bows to the unique promise and
opportunity of South African democratic transition, but they are largely
gestures. In substance, he treats the application question as a problem
within a political tradition, rather than as a problem about a political
tradition. His decision to under-emphasize transformative possibilities
reflects an unacknowledged choice about the deployment of intellectual
resources and interpretive energies, a choice with significant substantive
implications.
Justice Kriegler strikes off on a radically different path. Explicitly
calling attention to its unique historic context and transformational
aspirations as a source of interpretive guidance, he argues passionately
that the Bill of Rights governs all law, that all resorts to law by anybody
must be tested against the mandates of the Bill of Rights, and that the
Constitution permeates all that judges do (at paras. 130-141). He seeks to
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
rescue the theory of horizontal application from what he calls egregious,

Orwellian caricature and malicious nonsense circulated to inflame privi-
leged whites against the fledgling democracy. Accordingly, Justice Krieg-
ler dissents on the application question. He concurs specially in the
Court's judgment solely on the threshold ground that, on the facts of
this particular case, the defendants are barred from invoking the Con-
stitution to protect an alleged defamation occurring prior to April 27,
1994.
For present purposes, what is so interesting about Justice Kriegler's
opinion is the strength with which traditional legalist ideas about the
public/private distinction continue to inform his thinking, despite that
his argument as a whole reflects a profound challenge to traditional
premises. Curiously, Justice Kriegler offers a reformulated version of
the public/private distinction that would seem directly contrary to what
he otherwise argues. He distinguishes between 'ordinary relationships,'
existing between people and apart from the law, and 'legal relationships,'
relationships as to which law is applicable or has been invoked (at para.
135). He then concludes:
'As far as [Chapter 3) is concerned, a landlord is free to refuse to let a flat to someone
because of race, gender or whatever; a white bigot may refuse to sell property to a person
of colour; a social club may black-ball Jews, Catholics or Afrikaners if it so wishes. An
employer is at liberty to discriminate on racial grounds in the engagement of staff; a
hotelier may refuse to let a room to a homosexual; a church may close its doors to
mourners of a particular colour or class. But none of them can invoke the law to enforce
or protect their bigotry' (id.).
The problem with this argument is the untenable assumption that

power dynamics in the private sphere of ordinary relationships exist
apart from and unbuttressed by law. How is it that a landlord can
'privately' refuse to let a flat because of the prospective tenant's race?
The landlord can do that because, and only because, the applicable legal
regime permits her to do so. The landlord 'invokes' law to enforce her
bigotry from the outset, because had the common law not reflected a
social decision to permit racial discrimination, she could not lawfully
practice it. The distinction between bigotry 'before' resort to law and
bigotry 'after' resort to law collapses into a version of the venerable
but completely unsustainable distinction between action and nonfea-
sance. The bundle of common law rights appertaining to property own-
ership comprises, both in the express entitlements and the omissions,
policy decisions made by government rather than neutral, background
facts.
This is where Justice Mahomed begins:
"All acts performed by ... private persons are acts performed in terms of what the
common law would allow. A landlord who refuses to let to someone because of his race is
exercising a right which is incidental to the rights of an owner of property at common
law; this applies equally to the white bigot who refuses to sell property to a person of
colour. A social club which black-balls Jews, Catholics or Afrikaners acts in terms either
186 LEGAL CULTURE AND TRANSFORMATJVE CONSTITUTIONALISM
of its own constitution or the common Jaw pertaining to voluntary associations or

freedom of contract. I am not persuaded that there is, in the modern State, any right
which exists which is not ultimately sourced in some Jaw, even if it be no more than an
unarticulated premise of the common Jaw ... .' (para. 79).
Like Justice Kriegler, he writes with a passion and eloquence that is

moving for a U.S. lawyer. He argues that the South African Constitution
was intended to dismantle the injustices of the past, and that, therefore,
the drafters could not have intended to permit traditional ideas about the
public/private distinction to immunize apartheid privilege from legal
revision.
From this starting point, one would think that direct horizontal appli-
cation will shortly follow. Interestingly, Justice Mahomed pulls back at
the last moment and settles on the idea of indirect horizontal application
of constitutional norms through s 35(3). 76 This leaves him essentially
concurring in Justice Kentridge's resolution of the problem. Justice Ma-
homed provides little analysis as to why indirect horizontality is a super-
ior to direct horizontal application, or why it is more suited to South
Africa's needs during democratic transition, or why it reflects a more
faithful reading of the text. He seems to get to his resting point more
by an instinct of lawyerly caution than as an entailment of his earlier
arguments.
Justice Sachs agrees with Justice Mahomed that 'there is no sector
where law dwells, that is not reached by the principles and values of
the Constitution' (para. 177), but in the end he, too, comes around to
the Kentridge/indirect horizontality position. However Justice Sachs does
stake out a theoretical defense of this position in terms drawn from
political theory, namely the importance within his conception of democ-
racy of enlarging parliamentary supremacy and of securing judicial de-
ference to legislative processes. Thus, Justice Sachs surfaces some of the
political and philosophical underpinnings of his legal method, and this
lends a coherence and persuasiveness to his argument that is lacking in
Justice Kentridge's more legalistic judgment, albeit this takes Justice
Sachs beyond the contours of a 'purely legal' decision. 77
For what it is worth, I believe Justice Madala provides the most
nuanced solution to the application question. As previously noted, he
concludes that the fundamental rights secured by Chapter 3 may have
direct horizontal application. He writes:
'Ours is a multi-racial, multi-cultural, multi-lingual society in which the ravages of
apartheid, disadvantage and inequality are just immeasurable. The extent of the
oppressive measures in South Africa was not confined to government/individual relations
but equally to individual/individual relations. In its effort to create a new order, our
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).
From this understanding, Justice Mada1a generates a unique solution to

the problem of application, one that closely foreshadows the ultimate
resolution by the Constitutional Assembly in the 1996 Text. In a nut-
shell, Justice Madala argues that the Constitution must be read to pro-
vide for both direct and indirect horizontal application, and that the
question of whether a particular Chapter 3 right applies horizontally to
a particular set of circumstances must be decided on a case-by-case basis,
'depend[ing] on the nature and extent of the particular right, the values
that underlie it, and the context in which the alleged breach of the right
occurs' (para. 161 (footnote omitted)). This is an exceptionally thoughtful
and creative approach, one that I think best does justice to the complexity
of the problem facing the Court. From the jurisprudential standpoint, the
salient characteristic of Justice Madala's solution, and I suspect the
reason why it did not gain further adherents, is its extreme flexibility
and plasticity, and the exceedingly high level of trust it places in judicial
discretion and interpretation. Justice Madala's solution seems to say,
'there are few or no bright lines here, these problems cannot be solved
by formulae but require the earnest engagement of interpreters who
attempt, in their work, to fulfill the democratic and transformational
aspirations of the Constitution.' That is to say, alongside the circumspec-
tion and precision of his opinion, and the sense he conveys of the awe-
some responsibilities and challenges of his office, Justice Madala's
solution goes farthest toward acknowledging the irreducibly political
character of constitutional adjudication and interpretation. It is there-
fore puzzling that Justice Madala agreed so quickly with Justice Ken-
tridge's formulation and resolution of the retrospectivity issue (at para.
151). Justice Madala's own jurisprudence suggests that he ought to have
taken a second look. That quibble aside, he offers South Africans a gem
of insight in a conversation that must and will go on for years to come.
CONCLUSION
To be transformative and transparent, rights discourse and legal rea-

soning need to be more candid and self-conscious about the politics of
adjudication, indeed, they need to make a virtue of what has traditionally
been thought of as a dilemma. Lawyers can best address problems con-
cerning the democratic legitimacy of judicial power by honesty about and
critical understanding of the plasticity of legal interpretation and of how
interpretive practices are a medium for articulating social visions. And
the capacity to be candid about the politics of adjudication in turn
requires South African lawyers to reexamine their analytical and argu-
mentative methods and to attend to the burden their legal culture im-
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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South African Journal on Human Rights

ISSN: 0258-7203 (Print) 1996-2126 (Online) Journal homepage: http://www.tandfonline.com/loi/rjhr20

Legal Culture and Transformative

To link to this article: http://dx.doi.org/10.1080/02587203.1998.11834974

Published online: 23 Mar 2017.

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Citing articles: 15 View citing articles

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'Our function is to interpret the text of the Constitution as it stands. Accordingly,

It was a privilege to befriend and work with Etienne Mureinik toward

This essay focuses on adjudication as one branch of the law-making

to devise a system of total constraint consistent with democratic values -

Etienne Mureinik cited yet another reason for focusing on adjudica-

4 Duncan Kennedy, A Critique of Adjudication: {fin de siecle} (1997) (hereinafter cited as

'promote and fulfill' through one's professional work the 'democratic

To avoid any misunderstanding down the road, let me say as clearly as

My goal here is not to persuade readers that the postliberal reading is

To quote Justice Kriegler, the fundamental rights and freedoms an-

II State v Makwanyane, 1995 (6) BCLR 665 (CC), at para. 262.

In support of a postliberal reading, one would highlight that the South

13 This terminology refers to the scope of application or 'reach' of a constitution's fundamental

substantive (redistributive), not just formal, conception of equality. 15 The

access to land (s 25). The Constitution expresses a particular solicitude

[democratic] future.' 23 The 1996 text also contains numerous passages

II LAW & POLITICS IN ADJUDICATION: TRADITIONAL & CRITICAL VIEWS

Uncontroversially, democratic constitutions and foundational legisla-

27 State v Makwanyane, 1995 (6) BCLR 665 (CC), at paras. 302-04.

program). Rather, adjudicators perform work within a medium. The

below, legal constraint is 'culturally constructed.' 34 Even within relatively

34 See Duncan Kennedy, 'Towards An Historical Understanding of Legal Consciousness: The

engage - partially constitutes the legal materials, thereby imbuing them

turn, at least in part, on the community's judgment of the worth of her

38 Duncan Kennedy, 'Strategizing,' op. cit. note 31 supra, at 797.

procedures and fundamental (nonmajoritarian) human rights. A more

Denial is a general phenomenon, but arguably additional considera-

III LEGAL CULTURE

philosophy), are deemed outside the professional discourse of lawyers?" 5

legal culture or because their own undergoes a period of dramatic conflict

jurisprudentially progressive argument-types (e.g., purposive or instru-

South African lawyers to acknowledge their political discretion and

will judge the Constitutional Court by the contribution it makes to

53 State v Makwanyane, 1995 (6) BCLR 665 (CC).

the jurisprudence of Makwanyane treacherous. With that caveat, how-

abstraction of these efforts, and particularly by how little the Court

for gardening at the Parliament building) whilst preventable infant

60 Act No. 61 of 1973.

is, the Court decided that, to be constitutional, compelled self-incrimina-

So, Ferreira is very bold jurisprudentially, in the sense of candid ac-

gage, onto the interim Constitution. The Constitutional Assembly subse-

And most tellingly:

Though differing amongst themselves and with Justice Kriegler, Jus-

In addition to the substantive question of constitutional application,

ment of the new Constitution. 69 Unlike the difficult question of constitu-

horizontality). The Constitutional Court also granted defendants leave to

1996 is post-Constitution governmental conduct that must be tested

defends, this proposition. In a classic example of circular argument,

rescue the theory of horizontal application from what he calls egregious,

The problem with this argument is the untenable assumption that

of its own constitution or the common Jaw pertaining to voluntary associations or

Like Justice Kriegler, he writes with a passion and eloquence that is

From this understanding, Justice Mada1a generates a unique solution to

To be transformative and transparent, rights discourse and legal rea-