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Seat Intro.Fm Is This Seat Taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution Stu Woolman & David Bilchitz (eds) 2012 Is this Seat Taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: ABC Press Cape Town To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za Cover: Yolanda Booyzen, Centre for Human Rights ISBN: 978-0-920538-07-1 © 2012 TABLE OF CONTENTS PREFACE vii Rationality is dead! Long live rationality! Saving 1 1 rational basis review Michael Bishop The content and justification of rationality 37 2 review Alistair Price Taking diversity seriously: Religious associations and 75 3 work-related discrimination Patrick Lenta On the fragility of associational life: 111 4 A constitutive liberal’s response to Patrick Lenta Stu Woolman Migration, street democracy and expatriate voting 141 5 rights Wessel le Roux Constitutional patriotism or constitutional 167 6 nationalism? A response to Wessel le Roux Karin van Marle Does transformative constitutionalism require the 173 7 recognition of animal rights? David Bilchitz Animal rights and the interpretation of the 209 8 South African Constitution Thaddeus Metz Is there a difference that makes a difference between 221 9 ubuntu and dignity? Drucilla Cornell Where dignity ends and ubuntu begins: An 241 10 amplification of, as well as an identification of a tension in, Drucilla Cornell’s thoughts Yvonne Mokgoro and Stu Woolman iii Balancing and the limitation of rights in the South 251 11 African Constitution Iain Currie Does balancing adequately capture the nature of 267 12 rights? David Bilchitz Towards a framework for understanding 291 13 constitutional deference Kirsty Mclean Reclaiming the frontier of constitutional 319 14 deference: Mazibuko v City of Johannesburg – a jurisprudential setback Redson Edward Kapindu On the common saying ‘what’s true in golf is true in 341 15 law’: The relationship between theory and practice across forms of life Stu Woolman Theory, practice and the legal enterprise 367 16 David Bilchitz and Juha Tuovinen Between charity and clarity: Kibitzing with Frank 391 17 Michelman on how to best read the Constitutional Court Stu Woolman Old Kibitzes never die: A rejoinder to 417 18 Stu Woolman Frank I Michelman Judicious transparency 423 19 Jonathan Klaaren In search of a theory of judicious (judicial) 437 20 transparency: A response to Klaaren Richard Calland and Chris Oxtoby iv PREFACE We do things differently around here. (Or rather, we like to think we do.) Throughout the year, we have jurists and academics (local and foreign), graduate students and school learners, arrive at our offices on Constitution Hill to present papers that either make us squirm in our seats or think of ostensibly mundane matters afresh. Often enough, our guests deliver presentations on topics we have yet to consider and are, therefore, new to the South African legal landscape. The creation of a safe space to push the boundaries of legal thought remains the raison d’être for the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). One of the ways that we do things differently is to replace static presentations with vibrant conversations. Throughout our colloquia and seminars, as well as in other publications (from Constitutional Conversations to the Constitutional Court Review), we have employed a dialogical model of presentation. Instead of having individual judges, academics and students present alone, we opt for formats that place individuals in conversation with one another – in a manner that is rigorous yet collaborative, spirited rather than competitive. One new result of this methodology is this book. The colloquies that make up this work are framed in a manner that requires interlocutors to speak directly to, and not past, one another. Professor Frank Michelman of Harvard Law School (one of the authors in this volume) neatly captures the colloquium’s ethos: ‘The aim is to learn. It is aggressively to learn what there is to be learnt from puzzles [our] interlocutors pose to us, by assuming there is method in their madness and doing our best to ferret that out, using everything else we know or can guess (in part from their likeness and kinship to us) about where they are coming from.’ Hard as it may be to put our own thoughts into a coherent, compelling fashion, harder still is it to credit, and to give at least initial priority to, the claims of others who stand in apparent disagreement with our own positions. To do so takes work. Real work. And patience. The authors of this collection of colloquies are decidedly not out there playing games of ‘gotcha’. They are engaged in a collective effort to close down areas of difference (even as they take risks associated in opening up new areas of exploration). The purpose in crediting our interlocutors as we do is to sharpen the critical bite of outstanding differences. Sometimes a pair of conversants will wind up singing off the same hymn sheet. In other dialogues, presenters are forced to rethink their initial positions, and provide reassessments or clarifications thereof in footnotes that address the challenges posed by their respondents. Again: We hope that this format will help illustrate the complexity of certain topics, whilst highlighting areas of agreement and disagreement in others. The topics are diverse but all engage matters of great import for South African constitutional law. Some authors ask us to reconsider our disciplinary bias – as lawyers – by asking questions about the relationship between theory and practice across diverse forms of life, and whether law v is fundamentally different than other norm driven social practices (such as religion, golf or psychoanalysis). Others hold fast to the received wisdom that law is an autonomous domain in which theory and practice differ from other ways of being in the world. Other authors discuss questions of constitutional doctrine that seem deceptively simple on their face: ‘rationality review’. Both authors, in this colloquy, leave us with entirely fresh understandings of how we should read the Constitutional Court and develop the doctrine in this domain. At the same time, one cannot be faulted for thinking that far too much ink has been spilled on the desirability of ‘balancing’ in our constitutional jurisprudence. And yet we are here asked to engage with the nuanced conception of proportionality and balancing gleaned from the well-known work of Robert Alexy. One of the more hotly contested debates in our current jurisprudence concerns the place of the value of ubuntu – and its relationship to dignity and other rights in our constitutional order. This colloquy’s constructive engagement between a former Constitutional Court justice, a critical theorist and a ‘run-of-the-mill’ constitutional law scholar does not lead us down the intellectual dead end of cultural relativism and value incommensurability. Instead, it demonstrates the way in which a dominant norm in Western ethical discourse can itself be illuminated by comparison and contrast to a central feature of African thought. Well, if dignity has its day, equality must also have its say. In a ground- breaking exchange on whether the Bill of Rights applies to non-human animals, the authors ask whether equality, and the underlying ethic that demands rejection of all forms of arbitrary discrimination, ought not as a matter of consistency be applied to the ongoing crimes committed against many of the animals that share our society. In another bracing exchange, two authors seek out the best justification for a democratic constitutional order – toleration, diversity, social capital – and the ramifications those justifications have for questions of differentiation and discrimination in religious communities. In a particularly challenging conversation, two authors ask us to reconsider our notion of ‘citizenship’ and whether its expansion beyond a discernible territorial republic is possible, let alone desirable. Other colloquies deal with subjects that initially feel more familiar. The apparently well-worn topic of judicial deference in socio-economic rights cases creates a catalyst for two fresh looks at this area in which everyone wants to know: What social entitlements can we expect to receive when all is said and done? Our constitution identifies openness and democracy as foundational values. Two interlocutors ask how open our democracy is and whether the judiciary can play a meaningful role in maintaining the transparency and the accountability of the coordinate branches – particularly in the face of a constitutional crisis. As if genuine finality could be achieved in any of these colloquies, we are asked to think again about how much clarity the Constitutional Court owes its constituents in a democracy committed to the rule of law. The exchange
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