Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Aparthieid Legal Order

Vol. 14 No. 5 (May 2004), pp.345-349

JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER, by David Dyzenhaus. Oxford: Hart Publishing, 2003. 216pp. Paper $24.00. £12.99. ISBN: 1-84113-403-1.

Reviewed by Peter d’Errico , Emeritus Professor, Legal Studies Department, University of Massachusetts-Amherst. Web: http://www.umass.edu/legal/derrico

By now we are accustomed to the fact that law may be a problem as well as the solution to a problem: invidious discrimination may be a feature as well as a target of law, even in the celebrated democratic societies of the West. One need not be a “radical” to assert that law is better understood as “a terrain of social struggle” than as an antipode to injustice: the presence of a legal system is not a guarantee of freedom and equality.

That said, we may nevertheless explore the possibility that the very fact of law’s being available as a terrain of social struggle is an unqualified good. It is this aspect of law that we want to celebrate as “the rule of law”—not the positivist notion of law as sovereign command, but the moralist and realist notion of law as “politics by other means” (p.182).

This small book by David Dyzenhaus, Professor of Law and Philosophy at the University of Toronto, does a remarkable job: it presents a critique of South Africa’s apartheid legal order that is simultaneously an anti-positivist philosophy of law. His examination of the roles of judges, lawyers and law teachers in the years 1960 to 1994—the temporal focus of the South African Truth and Reconciliation Commission—is a sharply reasoned, amply supported inquiry into the ways law personnel participated in the gross human rights abuses that constituted apartheid.

Dyzenhaus, a former South African, now Canadian citizen, started his career as a law lecturer in South Africa in the early 1980s. He participated in debates about the legitimacy of participation in the apartheid legal order, arguing that it was important to work from within to oppose the regime (p.xiii). He acknowledges that “[a]s someone who decided to leave,” he may be criticized for sitting in judgment on those who stayed:

“But my sense is that anyone who ventures along the path of critique will find him- or herself personally implicated, even self-incriminated, by the logic which the [Truth and Reconciliation Commission] relentlessly triggers” (p.xiv).

His crucial insight—and the crux of his critique—is that “legal order” is not the same as “rule of law.” The former is achieved whenever a framework of sovereign command is enforced through intermediary functionaries operating in a more or less discursive manner. The latter is achieved only when the framework of sovereign command is itself subject to dispute and contravention:

[T]he courtroom is a “political theatre” but that does not make it the “theatre of politics.” There is a distinction between [*346] law and politics, which is the distinction we have already encountered between the state and government, or the state as an ideal and the state in practice. At the moment that a court accepts jurisdiction over a controversy between government and an individual, government is demoted—it loses its claim to be the exclusive representative of the state. At the same time, the individual is promoted into a public role, to one with an equal claim to represent the state. The court, then, in deciding between these claims articulates a vision of what the state is and publicly draws the line between law and politics. (p.172)

Dyzenhaus acknowledges that this distinction between “legal order” and “rule of law” depends on the “independence” of courts. This is a complex issue. Though formally insulated to varying extent from ordinary political and economic influences, judges are never wholly independent actors. Indeed, I think we would not want to live under a regime of judges who were not somehow inextricably part of our own society. Courts are an interdependent part of the general social system and for quite some time now we have understood that judicial autonomy is only “relative.”

But Dyzenhaus is not really talking about formal structures of independence. These, though necessary, are not sufficient to sustain the “rule of law” and the distinction between that rule and a “legal order.” Quoting Paul W. Kahn, Dyzenhaus suggests that

what matters is not the formal structures of independence, which might differ from country to country, but “the informal tradition of norms and expectations that develop around political and legal institutions.” In a functioning democracy, courts and political institutions support each other; the “courts provide a kind of legitimacy to the political institutions and the political institutions return the favor to the courts” (p.172).

In South Africa, as elsewhere, the presence of a court system did and does provide “a kind of legitimacy” to the government; government(s) in such circumstances gratefully “return the favor.” If that were all that were needed for the rule of law, we would find it everywhere and legal personnel would be in no dilemma about their roles: “following the rules” would be a good defense against any possible culpability for injustice.

For Dyzenhaus, the key issue is whether there is a “functioning democracy” at the foundation of legal order; for only in a democracy can there be a regime of “commonly held” legal norms and expectations:

Now South Africa under apartheid was not a functioning democracy, though the courts had a kind of formal independence and were engaged in the reciprocal relationship of legitimacy with political institutions which Kahn describes. The enforced divide between racial groups in the service of white supremacy meant that it was impossible to develop an “informal tradition of norms and expectations . . . around political and legal institutions” common to most South Africans (p.172).

Dyzenhaus sharpens this critique. His target is not only the absence of democracy, but also the failure, for the most part, of legal personnel to articulate this absence. Most judges (and lawyers and law teachers) “failed in their duty” to articulate, promote and defend “the [*347] rule of law” in the face of the apartheid legal order: They “failed in the role which independence protects because they confused government with the state, thus permitting the government to fail to live up to the responsibilities that attend a claim to be a democratic state” (p.172).

Here is the core of Deyzenhaus’ critique of apartheid and of his philosophy of law. The “rule of law” is only possible as part of a “functioning democracy.” Ultimately, he insists that the inverse is also true: democracy requires the rule of law, as “a terrain of struggle” (p.114). For Dyzenhaus, the “rule of law” and democracy are intertwined traditions and institutions, within which the special position of judges imposes upon them a special obligation—“Government under the rule of law amounts to politics under the constraints of legal order, constraints which impose conditions of publicity, obligations to justify official decisions, and a general obligation on judges to find a role for themselves as the enforcers of legality, not just of positive law” (p.182).

For Dyzenhaus, the commitment to “legality” is “commitment to a community of free and equal citizens” (p.183). The rule of law is not and cannot be a positivist (or, in South African jurisprudential parlance, a “plain fact”) adherence to the existing legal order. With references to Lon Fuller and other anti-positivists, he concludes:

Of course, there will be many ways of understanding that commitment and legal actors will have to take seriously the idea that they have an obligation of fidelity to law before the commitment has effects on legal practice. But at least one should rule out any legal theory or ideology which attempts to reduce our understanding of law to what a plain fact approach determines to be the content of the commands of the powerful. For law is better understood as the expression of a relationship of reciprocity between ruler and ruled, one in which the rulers commit themselves not only to being accountable to law, but to making law before which all subjects are equal. That in turn suggests that the rule of law is best understood as the institutional expression of democracy. (p.183)

It bears emphasis that the South African record under apartheid is not one-sided; at least some judges and lawyers and law teachers did resist apartheid through rule of law critiques of that order. Dyzenhaus presents these actors as having faced and made a “morally tragic” (p.133) choice. This notion is woven throughout his analysis of the situation of opponents to apartheid who chose to work within the legal system. With reference to Robert Cover’s “perspective of the disobedient,” Dyzenhaus asserts the South African legal dissidents were faced not simply with a legal system that was a cloak for naked power, but with “the possibility . . . of the pursuit of the ideal of juster justice within the law” (p.132).

For Dyzenhaus, the perspective of the disobedient “is ultimately a positivist perspective on law” (p.132n); what distinguished the South African situation was the availability of internal critiques of the law, via Roman-Dutch and English common law concepts. This meant, on one hand, the moral potential of the law and, on the other hand, the failure of the law to realize that potential. With particular focus on the famous case of Abram “Bram” Fischer, an Afrikaner aristocrat and eminent member of the legal profession who [*348] joined the armed underground struggle against apartheid, Dyzenhaus builds a subtle perspective on moral choice, which he calls “the rule of law dilemma” (p.131): “the nature of such a situation [is] one in which no choice can be made without ignoring the legitimate pull of important moral considerations. . . . Any decision brings with it regret because even when a decision seems on balance the better choice, the reasons for not doing it remain” (p.163).

The result is a paradox. During the persistence of apartheid, the presence of a few legal “activists” and their occasional successes lent a gloss of respectability to an otherwise totalitarian racist regime; on the other hand, the arguments and decisions of those actors did open a space, however small, in apartheid law for internal opposition. Dyzenhaus sees a substantial benefit from these “morally tragic” actions, despite, or perhaps because of, the ambiguity of the space they created, which “maintained only the facade of the rule of law”:

[A]t the same time as they assisted in maintaining that facade, they gave some substance to it. And that substance did more than open up space for opposition from within. It also, as we can see in retrospect, provided a basis for law and judges to play a role in building a decent political order. (p.170)

This is an important observation, especially against the backdrop of critiques of law that have sometimes thrown out law altogether. From the ambiguity and paradox of legal resistance and struggle, Dyzenhaus concludes that law “can make a difference, even under the very unpromising conditions of apartheid South Africa” (p.182). Quoting Richard L. Abel, Dyzenhaus “warns against the false conclusion that law ‘either makes all the difference or no difference at all’” (p.182).

To the extent that judges, lawyers and law teachers do not confront governments with the “rule of law dilemma,” they “defer to the violence of administration” (p.160) and fail in their duty to the rule of law. In a time of pervasive “security” laws, which governments frequently attempt to insulate from judicial scrutiny, adherence to the rule of law as a “constitutional vision” is “a deeply political act. . . But…when the politics in which judges engage amount to upholding the rule of law, requiring of government that it live up to ideals which it itself, however cynically, professes, then judges are simply doing the duty undertaken in their oath of office” (p.160).

The Legal Hearing of the Truth and Reconciliation Commission put the law on trial, in an effort to discover what was wrong with law in apartheid and how to build a democratic society. The hope of the Commissioners and others was that judges, lawyers and law teachers would testify about their roles and actions. For the most part, judges refused to accept the invitation. Most of them cited the need for “judicial independence” as a justification for their refusal. Dyzenhaus rejects this, saying “One has to ask what independence is for” (p.146). He argues that

judges for the most part failed in the role which independence protects because they confused government with the state, thus permitting the government to fail to live up to the responsibilities that attend a claim to be a democratic state. [*349] Having failed in their duty, judges could not claim the immunity from testifying that normally attaches to the judicial role (pp.172-173).

Dyzenhaus also laments the loss of access, occasioned by the judges’ absence, to information and perspectives that would enrich the public record of the country’s oppressive past and the public discussion of its future. In this, he echoes a remark attributed to Alexander Bickel, that we need to remember the future and imagine the past:

the tasks of truth and reconciliation are forward-looking, searching the past to imagine how it happened and how it might have been different.

In a fraught transition a tradition of judicial independence can at best be said to be in the process of being forged. Hence, it was incumbent on judges committed to a democratic future fully to take part in the opportunity offered them to debate both their past and their future (p.173).

Through his close scrutiny of the Legal Hearing of the South African Truth and Reconciliation Commission, Dyzenhaus renders notable service as an historian and philosopher of law. His book becomes an intentional part of the work of the tribunal and an enduring part of the archive in the “struggle against forgetting” (p.182). His admonitions and arguments about law help us to understand possibilities and pitfalls of the ongoing work of democratic law in all societies.

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