Several Years Ago at My Alma Mater, Columbia Law School, I Had the Honour of Introducing

Stu Woolman, Editor-in-Chief, Constitutional Law of South Africa Launch Talk, 28 March 2006; Post-Conference Observations, 15 May 2006 Constitutional Law of South Africa Conference: 28/03/06 – 30/03/06 Women’s Gaol, Constitution Hill, Braamfontein, Johannesburg, South Africa

Part I: On the Role of the Legal Academy

Several years ago, at my alma mater, Columbia Law School, I had the honour of introducing Justice Albie Sachs to a packed audience eager to hear what he had to say about the Court’s then recent judgment in Grootboom. After the talk, as the Justice, his host Jack Greenberg and I stood about chatting, the Justice – nodding in my direction – remarked that ‘they (legal academics) played an important role during the transition.’

Perhaps only another South African, Roger Federer, could have delivered a backhand so adroitly. The Justice’s intimation – and the challenging question embedded in it -- was clear: while legal academics had occupied a critical position during those heady days of South Africa’s velvet revolution, now that all of the country’s political institutions – and especially the Court – were up and running, our role, as legal academics, was much harder to divine.

There is, of course, more than a measure of truth to the notion that legal academics – like all academics -- are handmaidens to the institutions and phenomena about which they write. But that does not make us epiphenomenal.

What is our ‘phenomenological’ status, our role? What we do exactly? Well, we fix things. Indeed, I tend to see my job as that of mechanic – someone who pays attention to what is being written, identifies a problem and offers a solution. Perhaps, the analogy to a therapist is more apt: since what we really do is listen closely and reflect back to those who make our laws what we hear them saying: we have no power, in fact, to intervene. Only lawmakers have the ability to correct their mistakes. But even the tags of mechanic or therapist are insufficient to task of describing the role we play: sometimes we are architects. Courts, faced with the pressures of deciding the cases and doing justice to the persons before them, hope primarily to get ‘it’ – the judgment – right. And that is as it should be. Academics, however, do not face such constraints. Our mission is to step back and suggest how a body of law hangs together – or if it does not cohere, then to explain why it falls apart. In both instances – the good faith reconstruction, on the one hand, or the preferred reading, on the other – we offer judges and lawyers the intellectual scaffolding upon which to build a better legal system.

These roles – of mechanic, of therapist, of architect – is what legal academics do in the real world; if we do our job well.

But we also, as writers, belong to an ideal community. When we write, we address ourselves to this ideal community.

In our ideal community – of which you are all a part – we address this Court of 11 women and men; but not just this Court, but every court, and not just the judges on the bench, but the advocates and the lawyers who appear before them, and not just these practitioners, but the judges, the legislators and the lawyers who sit in our classrooms and who will someday sit where you sit today. Academic discourse can, of course, be quite direct – I have penned any number of pointed replies. But even when we address our fellow academics directly, we are looking over their shoulders at a community of interlocutors that has yet to take shape. We are always oriented toward a future listener, toward a community unusually expansive and porous, the kind of ‘true democracy’ of which Whitman famously wrote: ‘I am large. I contain multitudes.’ This ‘large’, capacious book is one of many collective efforts to will such an ideal democratic community into being.

Let me say a few more words about the community I see – and imagine – before me. This work is an act of collective responsibility. The book has some 57 authors who represent 8 domestic law schools; 4 foreign law schools, 5 NGOs, 5 law firms and legal consultancies, and half a dozen members of the bar and bench. But if this book is an act of collective responsibility, then what, you may ask, is it an act of collective responsibility for. Our collective responsibility is to get things right. To get as close to the truth as possible.

Talk of ‘truth’ with a capital T is rather unfashionable in some quarters these days. Fortunately, such a philosophical fashion has not yet taken root here: South Africa remains, to my mind, the last great modernist project. Our Final Constitution is certainly written as if it is such. It commits us to great ideals and the material transformation of the lives of those who cannot yet enter the public square without still experiencing shame. There is simply too much truth yet to be told. Part of our collective responsibility – those of us who write for this book – is to put our basic law on as solid a footing as possible, so that other members of the legal fraternity may do what they need to do to realize the great ends of this modernist project.

What else do legal academics do, when they do their job well? What we do is model rational political discourse. The law does not simply secure its authority by arriving at the right answers. It secures its authority by getting there the right way. If those who make the law refuse to say what they mean – or mean what they say – then it falls to the rest of us to try to offer a good faith reconstruction of their meaning. And when that good faith reconstruction fails to cohere with the basic dictates of logic, reason or justice, then it falls to us to say so.

Tonight’s public lecture offers a fine example of what I mean when I talk about modelling rational discourse. Frank Michelman has written the definitive restatement and critique of our Rule of Law doctrine. He has done what no court of 11 women and men – who must often compromise on their conclusions – can do. He has put the Court’s jurisprudence on a more solid footing – and we are all the better for it. Justice O’Regan, both as an architect of that jurisprudence and a former member of the academy, honours us by responding to Professor Michelman’s good faith reconstruction and, in so doing, we hope, gets us all a little closer to the truth.

Have we, as we stand here tonight six years later, answered Justice Sach’s crisply struck backhand? In my mind, I see us, collectively stretched, answering with a forehand volley to a momentarily empty space. I see the Justice giving chase.

Part II: Acknowledgements

On behalf of all those associated with Constitutional Law of South Africa, and this three day/three night conference on Constitution Hill, I want to extend our thanks to a number of people.

First, we want to thank our authors, who, to a woman and a man, have admirably modelled rational discourse: You have taught me everything I know about constitutional law. Second, we want to thank all the people at the Centre for Human Rights, and Juta Law for making the production of this work possible. Third, we would like to express our gratitude to the following individuals:

 The Director of the Centre for Human Rights, Christof Heyns, has been an unstinting source of support over the past three and a half years; he has shared a vision of what this book could be and now is.  Lizette Besaans is the Centre’s Production Manager – a title which does not do her justice. Her title should be “She who makes things happen” – and we are extraordinarily grateful for the immense amount of time and care she puts into this work.  Michael Bishop – a newly minted editor -- has for the past three years helped to ensure that we get the book right in half a dozen ways that really matter: his dogged commitment to writing, research, proofing- reading, house-styling, parallel-citing and footnote-checking means that Michael owns this text in a manner few others do.  Theunis Roux: Last year, I went looking for an editor to help me complete this project; I had an ‘ideal’ fellow editor in mind; when I put a name to that ideal, I came up with Theunis Roux, who I, at the time, barely knew. To my great surprise, Theunis agreed to become a managing editor of this work; and what greater praise can I offer than that, a year later, he remains my ‘ideal’ editor.  Finally, we want to thank our publishers, Ria de Kock and Ute Kuhlmann, who have stayed the course and who have helped to produce a book of which we all can be justifiably proud. Part III: After the Fire: Some Post-Conference Reflections

Six weeks, and more than a few nights of good sleep, later, and I am in a position to reflect upon the conference, the book and what it all might mean.

The conference was a success. I know this, not because someone told me so, or because I need to believe to it. I know this because holding a conference is a lot like throwing a dinner party: the organizer spends so much time running around filling drinks or burning his hand on the stove that there remains little time to enjoy the event itself. Not so over the last Tuesday, Wednesday and Thursday in March. This March I had the pleasure of being able to listen to some of the best South African academics, jurists and practitioners discuss, in a most sophisticated and civil fashion, some of the finer, and more hotly contested, points in South African constitutional law. I owe such leisure – and its attendant pleasure – to my colleagues at the Centre: Lizette Besaans, Gill Jacot Guillarmod, Kweku Antwi, Yolanda Booyzen, Sandile Mhlongo and John Wilson. Every train ran exactly on time.

Because every train ran on time, I could witness the high level at which the discourse took place, and even take time to think about why this conference, with cast members I have seen elsewhere, differed so markedly from other conferences in this regard. The conference – and what the participants had to say – was so much better than what often occurs elsewhere because there was ‘something’ to what they had to say. That ‘something’ wasn’t an apercu, or a well-turned phrase or two. It was, more often than not, a chapter in Constitutional Law of South Africa.

The twelve sessions were grounded in some 28 (of the book’s 75) chapters – all available to the participants and audience well in advance of the conference on the Centre for Human Rights’ website or in Constitutional Law of South Africa itself. Moreover, most of the respondents did us the kindness of replying to the papers – the apposite chapters in the book – well in advance of the conference. The replies were posted with the chapters on the CHR/CLoSA website. The first consequence of this advance preparation was that a conversation between the participants had already begun before the first word was uttered at the conference. The second consequence was that the conference colloquies were of the highest order – and that speaks to a different aspect of the advance postings. The advance postings were chapters in CLoSA – and, as a general rule, each of those chapters often stand as one of the best, if not the best, piece of writing on the particular subject in the South African legal academy. And so how could the replies not be good, given the manner in which CLoSA’s authors had raised the level of everyone’s game.

The other remarkable quality of the 12 sessions was the civility and the generosity with which they were conducted. (Okay – some exchanges were just as memorable for frission rooted in genuine disagreement or misunderstanding, but then what academic conference could claim to be any good without its share of cut and thrust.) And that takes me back to an observation I offered in Part I – where I suggested that all South African legal academics have an ideal audience to which they speak. What I discovered at the end of this conference was that public law academics have a very real audience to which they speak and by which they are, generally, heard. If I am legitimately proud of any one facet of the conference is that at the same time as it revealed Constitutional Law of South Africa to be a work of substance, it disclosed the presence of a very real, vital and engaged community of South African scholars doing legal research, writing and analysis at the highest possible level. And for that, I think you will agree, we should all be grateful. I am.

Stu Woolman Editor-in-Chief Constitutional Law of South Africa