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Real Respect for the Rule of Law
Published online by Cambridge University Press: 09 June 2015
Extract
Judging the Judges, Judging Ourselves is an excellent book for at least three reasons. First, it is a critically engaged, firsthand account of a unique legal and political event: the inquiry by South Africa’s Truth and Reconciliation Commission into the operation of that country’s legal system under Apartheid. Second, it develops an extended argument for a challengingly normative conception of the rule of law, complete with compelling practical illustrations of what can happen if officials charged with maintaining the integrity of a legal system adopt a less substantive standard. And third, the book is well written and a pleasure to read.
South Africa’s Truth and Reconciliation Commission (TRC) represents an unusual attempt to confront, acknowledge and overcome the devastating injustice, violence and hatred generated during the Apartheid era. What makes it unusual is the conscious decision to set aside demands for retributive justice. Instead, by exposing abuses and violations of human rights, and then compensating victims and pardoning confessed perpetrators, the TRC aimed to establish a framework in which former antagonists could set aside adversarial postures and work together to create a new, integrated and just South Africa. Whether this laudable experiment will succeed remains to be seen.
What was clear early on was that the TRC could not hope to complete its task if it did not investigate the performance of the legal system and the legal profession under the Apartheid regime. Apartheid was a social and political construct that systematically denied basic human rights to the vast majority of South Africa’s population on the basis of race. A substantial amount of state violence was required to secure this result. But it is a singular, remarkable fact that the racial divide was maintained by a legal system which in many respects resembled its counterparts in liberal democratic societies where the courts actively and successfully protect civil liberties. What is particularly striking is that gross human rights violations were permitted, even approved, by legal institutions that appeared to respect such fundamental legitimacy-conferring principles as the rule of law and judicial independence. Equally troubling is the observation that the system was staffed by functionaries many of whom had unimpeachable credentials as advocates of human rights. So how could this justice system have produced such iniquitous results?
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References
* (Oxford: Hart Publishing, 1998) ISBN 1-901362-94-9. Price: £20.00
1. Dyzenhaus made the opening submission to the Truth and Reconciliation Commission’s Legal Hearing, held October 27-29,1997.
2. Though, there is the important caveat that in the new regime, legislation will be constrained by the terms of the new constitution.
3. This has long been one of the principal objections to Hobbes’ claim that only an absolute sovereign, one who is above the law, is capable of maintaining political stability. As Locke eloquently pointed out in The Second Treatise of Government, acceptance of an absolute sovereign is highly counterintuitive:
As if when Men quitting the State of Nature entered into Society, they agreed that all of them but one, should be under the restraint of Laws, but that he should still retain all the Liberty of the State of Nature, increased with Power, and made licentious by Impunity. This is to think that Men are so foolish that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions.” John Locke Two Treatises of Government, ed. by Peter Laslett (Cambridge: Cambridge University Press, 1988) at 328.
4. Arbitrary power here can best be understood as power exercised not because it is legitimate, and recognized as such by those who are under its authority, but simply because it is effective and literally overpowers its opposition.
5. Dyzenhaus notes a number of cases where liberal judges found creative ways to circumvent oppressive provisions. Equally, however, he notes that many of these judgments were overturned by higher courts, including the Appellate division, which seemed to be very much in sympathy with the government’s political agenda.