democracy and rights in south africa: beyond a constitutional culture of justification

Democracy and Rights in South Africa: Beyond aConstitutional Culture of Justification

Johan van der Walt and Henk Botha1

There is a story about a songwriter who went on a camping trip one weekend withhis publisher. They were hiking with their backpacks when they came around abend and suddenly saw a mountain lion. Both of them froze in place, and the catbegan snarling and moving slowly towards them. As they stood there, the writernoticed the publisher was quietly taking off his backpack. The writer said, ‘Whatare you doing? You can’t outrun a mountain lion.’ The publisher replied, ‘I don’tneed to outrun the mountain lion; I only need to outrun you.’2

I. Introduction

It is now more than six years since the inception of South Africa’s democraticconstitutional order.3 During that time, South Africans and the world havewitnessed the unfolding of a fascinating political and constitutional process. Thebuilding of democratic institutions, the adoption of complex legislative frame-works to give effect to constitutional norms and values and to deal with the legacyof the past, the restructuring of the civil service, the painful process throughwhich both victims and perpetrators of past human rights abuses have told theirstories before the Truth and Reconciliation Commission, and the impressivejurisprudence authored by the Constitutional Court bear testimony to the politicaland legal revolution instituted by the 1993 and 1996 Constitutions. At the sametime, however, bureaucratic inefficiency, corruption, high incidences of crime, thegovernment’s failure in many areas to deliver basic services to the mass of thepeople, the widening gap between rich and poor, the lack of a strong politicalopposition, and the increasingly authoritarian overtones of those in governmentmake one wonder how deep the transformation of South African society reallygoes. Clearly, many more battles will have to be fought to realize the transforma-tive and egalitarian aspirations of the Constitution.4

In this article, we focus on one aspect of this struggle: the debates in lawschools, academic journals, courtrooms, and other settings over the best way ofreading and interpreting the Constitution. We are particularly interested in theidea that the Constitution institutes a culture of justification. This reading of theConstitution was first put forward by the late Etienne Mureinik,5 and has subse-quently been reiterated and developed further by David Dyzenhaus and a numberof other constitutional lawyers.6 Mureinik’s argument, in a nutshell, was that

Constellations Volume 7, No 3, 2000. © Blackwell Publishers Ltd., 108 Cowley Road, Oxford OX4 1JF, UKand 350 Main Street, Malden, MA 02148, USA.

South Africa’s interim Constitution marked the substitution of a “culture of justi-fication” for the old apartheid-style “culture of authority.” Henceforth, no govern-ment official or body would be allowed to justify its own actions merely withreference to its own position within a hierarchical command structure. EvenParliament, which was formerly regarded as sovereign, could now be called uponto justify its decisions with reference to reasons that are viewed as cogent in thelight of democratic norms and values.

Mureinik based his reading on several features of the interim Constitution: thefact that it is justiciable and supreme, binds all organs of state, entrenches funda-mental human rights, and seeks to promote openness and accountability throughan administrative justice and freedom of information guarantee. He also attachedgreat significance to the inclusion of a general limitation clause, which deter-mines the conditions under which the limitation of a fundamental right may bejustified. The limitation clause makes it clear that rights are not to be regarded asabsolutes or trumps, but as standards of justification. A challenge under the Billof Rights should therefore not be seen as a means to preclude democraticdialogue, but rather as a way of facilitating and structuring an inquiry into thejustifiability of official conduct.

Now, of course, few people would dispute the need for official action to besubject to the demand for justification. Moreover, an understanding of the Bill ofRights as instituting a dialogue on the scope and limits of legitimate governmentaction – and, by implication, on the social relations we should like to structure –is, in our view, far more attractive than the traditional conception of rights asabstract and absolute claims against the community. However, we believe thetheory of a culture of justification as developed by Mureinik and Dyzenhaus hasnot yet come to terms with the politics of justification.

In Part II of this essay, we explore Mureinik’s efforts to reconcile democracyand rights by understanding constitutional adjudication in terms of a demand forjustification. In Part III, we take a closer look at the politics that underlies thenotion of a culture of justification of which constitutional review would be theprincipal institution. In Part IV, we investigate the way such a culture would relateto the ideals of community, solidarity, and a shared political commitment. Part Vthen gives concrete contours to the issues raised in Part IV by taking a closer lookat justification and the possibility of community and solidarity in South Africa.

II. Rights, Democracy, and Justification

David Dyzenhaus has argued that Mureinik’s concept of law as justification drawsupon both Benthamist radical democratic theory and the liberal idea of law asconsisting of neutral principles enunciated by the courts:

[T]he idea of law as a culture of justification shares with Bentham the thought thatthe primary mode of making law is legislation, so that the role that judges have in

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342 Constellations Volume 7, Number 3, 2000

legal order is one derived from a theory of legislation rather than from a theory ofadjudication. And it shares with the culture of neutrality the notion that ‘the core ofthe judicial conception of justice’ has to do with judicial guardianship of the funda-mental principles of law. But those principles do not have the kind of judiciallyfixed content which liberals desire – they are not principles with a content againstwhich statutes or executive decisions must not offend if they are to be valid. Rather,they are principles which make internal to the law the ideals which Etienne identi-fied as the twin aspirations of both democracy and administrative law – participa-tion and accountability.7

On this reading, Mureinik’s account of constitutionalism would avoid thepitfalls of both the democratic and liberal models. Mureinik, unlike Bentham, didnot equate democracy with the expression of the majority’s preferences throughstatutory reform, nor did he confine the role of the judiciary to the mere imple-mentation of the supreme legislature’s will. He favored the constitutionalizationof basic human rights, and expected the courts to play an active role in breedinga culture of democratic participation and accountability. At the same time,however, he was clear that rights should not be regarded as simply overriding thewill of the democratic majority or trumping policy considerations. Rights are notfixed or immutable boundaries, but are standards of justification, the content andmeaning of which alter with shifts in the social context. Moreover, their determi-nation is not the sole preserve of the courts, as the legislature and state adminis-tration have an important role to play in deciding how to balance individual rightsagainst competing rights and interests. In this view, Mureinik’s idea of law asjustification would make sense of the South African Constitution’s liberal anddemocratic commitments.8 It would help us avoid the opposite dangers of a tyran-nical majority and a judicial elite bent on frustrating legislative reform and theimplementation of progressive policies.

The appeal of Mureinik’s concept of a constitutional culture of justificationlies, then, in its claim to overcome the dualisms and oppositions of traditionalconstitutional theory. We have already seen how it would enable constitutionaltheorists to move beyond a narrow concern with the counter-majoritariandilemma, and to focus instead on the complementary relation between democracyand rights.9 Consider also his position on the question of whether socio-economicrights should be included in a new constitution. Mureinik wrote that the view thatsecond generation rights are fundamentally different from first generation rights,and should therefore not be included in a bill of rights, stems from an outdatedconception of rights as constraints upon the government. Once rights areconceived as a mechanism for inquiring into the justifiability of government deci-sions, it becomes clear that the right to nutrition may fulfil a similar role to thatof any first-generation right:

What difficulty inhibits a court from asking, as it might in respect of a first-gener-ation right: given the constitutional commitment to eradicate starvation, is this


Politics of Justification: Johan van der Walt & Henk Botha 343

statute, or this administrative programme, or even the annual Budget, justified? Inanswering that question, the court would of course be conscious that there are manytheories about how to eradicate starvation, and that it is the government’s preroga-tive to choose among them, just because it is politically accountable and itcommands the necessary expertise. A court would never be entitled to interfere witha government’s honest and rational programme for eradicating starvation simplybecause it disapproved of the underlying political or economic theory. . . But thecourt would be entitled to ask the government to explain how it envisaged eradi-cating starvation. That in itself would improve the quality of government, becauseany decisionmaker who is aware in advance of the risk of being required to justifya decision will always consider it more closely than if there were no risk.10

Because it recognizes that rights cannot be considered brightline boundariesbetween the spheres of individual freedom and legitimate state power, but ratherconstitute a social practice and an occasion for deliberation on vital social issues,the idea of law as justification explodes the opposition between “negative” and“positive” rights. The state can, for instance, be called upon to justify its decisionto increase military spending rather than to build more houses, just as it can becalled upon to justify legislation curbing freedom of expression.

But, of course, the demonstration that courts can play a vital role in building ademocratic culture of justification does not tell us where to draw the line betweenlegitimate exercises of the review power, and the judicial usurpation of the legisla-tive and/or executive function. Mureinik, in a comment on the administrativejustice clause in the interim Constitution, wrote that it is not the function of judgesto substitute their own views on substantive policy issues for those of an admin-istrative organ, but that they should rather inquire into the soundness of theprocess that went into the decision. That he did not, however, cling to a narrowconception of what counts as procedural grounds is evident from the followingpassage:

It is suggested that an administrative decision cannot be taken to be justifiableunless (a) the decisionmaker has considered all the serious objections to the deci-sion taken and has answers which plausibly meet them; (b) the decisionmaker hasconsidered all the serious alternatives to the decision taken, and has discarded themfor plausible reasons; and (c) there is a rational connection between premises andconclusion – between the information (evidence and argument) before the deci-sionmaker and the decision taken.11

Mureinik did not, in other words, advocate a value-neutral constitutionaljurisprudence that is based upon a rigid separation between process andsubstance. He recognized that an inquiry into the soundness of the process thatwent into an administrative decision requires judges to address certain substantiveissues, for instance whether the reasons given for the decision are plausible, andwhether such reasons in fact support the conclusion of the decision-maker.12 Tosay that a court should abstain from substituting its own views on substantive



policy issues for the considered and rational programs of the government, doestherefore not amount to an argument for the abdication of the power of judicialreview on questions of substantive value. It is rather an acknowledgement thatadministrative decision-makers are better equipped than judges to make certaindecisions, and that their decisions should be respected, provided that they haveconsidered all relevant factors and can justify their decisions with reference toplausible reasons.

The arguments just cited refer specifically to the justification of governmentconduct in terms of the administrative justice clause. It is not clear whetherMureinik intended these views to apply, for instance, to an attack on a statutoryprovision or executive decision on the ground that it infringes someone’s freedomof religion or constitutional property right. It could be argued that an inquiry intothe freedom of religion guarantee is more concerned with substantive issues –such as the scope of religious freedom – than with the question whether theprocess leading to the adoption of a law or decision has been sound. However,once a breach of the religious freedom guarantee has been established, a courtmust still decide whether such an infringement is justified in terms of the generallimitation clause.13 And it is this second stage of the inquiry that is similar(though not identical) to an inquiry under the administrative justice clause. For alimitation of a constitutional right will be valid only to the extent that it is reason-able and justifiable in an open and democratic society based on human dignity,equality, and freedom. This will be the case if, among other things, the limitationserves a legitimate social purpose, such purpose is sufficiently important towarrant the limitation of the right in question, and cannot be attained by lessrestrictive means.14

Now, it may be objected that such an analysis is very unlike the process-basedinquiry proposed by Mureinik under the administrative justice clause, since itengages a court in an evaluation of the importance of the purpose of the legisla-tion or conduct complained of, and requires it to balance rights against compet-ing rights or interests. These questions, it may be argued, invite judges to interferewith the choice of legislative ends, and to substitute their own views on the desir-ability of social policies for those of legislators and administrators. Balancingtests, the critic would point out, are wholly indeterminate, and allow judges tomask controversial value choices behind a facade of objectivity and neutrality.This is because of the impossibility of reducing competing values (e.g., freedomof expression and the right to a good name, or gender equality and cultural iden-tity) to some common measure of value, and the ease with which the balancingprocess can be manipulated through an adjustment of the levels of generality onwhich they are balanced.15

It has, however, been suggested that “balancing” is not an appropriatemetaphor to describe the type of reasoning required by the general limitationclause in section 36. The balancing of conflicting interests, according to somewriters, is only a small part of limitation analysis and should, on a proper



construction of section 36, seldom determine the outcome of the case.16 Forinstance, Canadian author David Beatty argues that judges should show deferenceto the legislature in weighing individual rights against governmental objectives,as this is essentially a legislative function. The critical role of judges consistsrather in an examination of the means used by the government to translate itsobjectives into law. The measures adopted by the government should be rationaland not interfere with individual rights and freedoms more than is necessary. Thisprinciple, in contrast to the balancing test,

allows the elected branches of Government virtually unfettered freedom in decidingwhat their agendas will be. The principle merely asks whether there are any otherpolicies a Government might have adopted that would have been just as effective inrealising its objectives as the one it used, but that would interfere less with the free-dom of people to control their own lives.17

Beatty points out that all the decisions of the Canadian Supreme Court in whichlaws were invalidated, were decided on this principle. This suggests that judicialreview in countries in which a two-stage, justificatory approach is followed doesnot so much invade legislative authority as institute a constitutional dialoguebetween the judiciary and legislature over the least intrusive means to attainlegislative ends.18 A court does not interfere with the legislature’s choice of ends,nor does it prescribe to the legislature how it should rectify a law that has beeninvalidated. The court’s sole concern is whether the means chosen are consistentwith the Constitution’s commitment to freedom and equality. It is then left to thelegislature, with its greater law-making expertise, to decide on a less intrusivemeans to attain the government’s objective.

We are not sure whether Mureinik would have agreed with this characteriza-tion of limitation analysis. However, he would certainly have welcomed the ideathat constitutional adjudication institutes a dialogue between citizens and thestate,19 and between courts and legislatures. Mureinik, like Beatty, grounded thelegitimacy of constitutional adjudication in a justificatory, rather than a defini-tional approach. He believed that this approach would enable him to show howcourts could fulfil a critical function under the Bill of Rights, without challengingthe wisdom of legislative and executive choices.

There are a number of criticisms that can be leveled against Mureinik’sattempt to reconcile democracy and judicial review. We shall mention only two.In the first place, it has been argued that the idea of law as justification is toocourts-centered; that Mureinik’s account of the role of legislation in institutingand maintaining a culture of justification is insignificant when compared to hisemphasis on the role of the courts as guardians over constitutional norms andprinciples.20 A second criticism may be directed at his attempt to ground thelegitimacy of constitutional adjudication in a neutral method. The critic may bea critical legal studies scholar, who believes that this is just another attempt topresent law as rational and apolitical when, in fact, the legal principles and ideals



supposed to guide judges are so incoherent and indeterminate that judges can ulti-mately only rely on their political sensibilities (or prejudices). Or she may be afeminist, who is concerned that the distinction between ends and means andbetween substance and process will perpetuate the image of the judge as adetached observer, whose judgment is untainted by his (!) personal beliefs, socialbackground and gender.

However, we shall turn to a different line of criticism below. We shall try toexpose the politics underlying the theory of a culture of justification by analyzingits fundamental assumptions.

III. The Politics of Justification

Let us highlight the main points and implications of the argument regarding aconstitutional culture of justification.

1. Constitutional review of legislation can and must be understood in the sameway that the review of administrative action in terms of the principles ofadministrative justice is understood. Constitutional review of legislation, justlike ordinary judicial review of administrative action, entails a proceduralreview which may express some substantive concerns, but basically should notinterfere with the substantive policy issues embodied in legislation.

2. This means that there is no fundamental conflict possible between the legisla-tor and the judiciary. Constitutional review does not allow the judiciary to tellthe legislator what it may not do. It only allows the judiciary to assist the legis-lator to do whatever it does in the right way (the way the constitutionprescribes). This also means that the counter-majoritarian question regardingconstitutional review has been solved. There is no fundamental rift possiblebetween democracy and individual rights. The only rift possible would consistin the contingent failure of the legislator to follow proper procedures. A slighthiccup, in other words, nothing to be really concerned about.

3. Hence also the conception of constitutional review in terms of a construc-tive dialogue and an essentially harmonious relation between legislator andjudiciary.

Now let us look at the assumptions that one must make to subscribe to this under-standing of constitutional review.

1. Majority government, as long as it sticks to prescribed formal procedures,cannot threaten individual rights.

2. Formal procedure thus guarantees a substantive harmony between the collec-tive will of the majority and individual interests.

3. Individuals who feel otherwise about a procedurally proper majority decisionare deluded.



4. Minorities who feel otherwise about a procedurally proper majority decisionare deluded.

One does not need more than a superficial knowledge of the history of politi-cal and legal thought to realize that these assumptions have been made before.Jean-Jacques Rousseau stressed that general and abstract legislation that derivesfrom proper democratic procedures would express the universally or generallyvalid, that is, reasonable interests of individuals and exclude (only) non-univer-salizable, unreasonable interests.21 In accordance with this view, Rousseau putforth the idea of the general will of the people that expresses the coherence ofrational individual interests. The general will, he argued, should not be under-stood in terms of the will of a contingent majority. The general will constitutedor derived from a substantive collective unity of rational people. HenceRousseau’s observation that the general will embodies the freedom of the indi-vidual. The dissenting individual who does not recognize the collective libertyexpressed in the general will as an expression of his or her own liberty, must beforced to be free.22

It should be clear that individual rights did not constitute a counter-majoritar-ian problem for Rousseau.23 Mureinik’s belief that the formal grounds of reviewembodied in the principle of administrative justice would solve the counter-majoritarian problem that attaches to constitutional review of legislation, repeatsthe essential move in Rousseau’s political theory. There is no reference toRousseau in Mureinik’s argument. This is not surprising; Rousseau is notoriousin liberal political thought for solving the problem of dissent between collectiveand individual or public and private liberty in a rather totalitarian fashion. Itshould be clear from the above that he indeed only managed to avoid the counter-majoritarian problem at the complete expense of private liberty. However, it is inthe liberal legal theory of none other than Ronald Dworkin that a clear linkbetween Mureinik and Rousseau’s avoidance of the counter-majoritarian problemcan be found. According to Dyzenhaus, Mureinik’s theory of a culture of justifi-cation constitutes a critical departure from his earlier adherence to Dworkin’stheory.24 However, a close reading of Dworkin’s argument regarding the integrityof the law shows that Mureinik’s theory has retained an essential structure ofDworkin’s theory of legal integrity and consequently raises the same questionsthat he discerned in Dworkin’s theory.

Dworkin develops his argument regarding the integrity of the law under theheading “the personification of community.” A notion such as the personificationof community is of course bound to raise the specter of Rousseau’s general will.It is therefore not surprising that he would explicitly dissociate his theory regard-ing the integrity of the law from Rousseau.25 However, this dissociation is muchmore apparent than real. His argument regarding the integrity of the law turns onthe assumption of a common moral commitment which all the members of a legalcommunity share. This common moral commitment clearly effects a spiritual



harmony between the collective and the individual or the public and the private:“Integrity infuses political and private occasions each with the spirit of the otherto the benefit of both.”26

What distinguishes this spiritual harmony between the collective and theprivate from the direct and therefore totalitarian rational identity of Rousseau’sgeneral will is its interpretative nature. Interpretation is the key concept withwhich Dworkin attempts to solve the counter-majoritarian problem in aRousseauian fashion without falling prey to its totalitarian consequences.However, in his attempt to do so, he overburdens the concept of interpretationwith such a contradictory load that its logical coherence begins to fall apart. Onthe one hand, interpretation enables the individual to express his individual auton-omy despite the fact that he shares a common moral commitment:

Political obligation is then not just a matter of obeying the discrete political deci-sions of the community one by one. . . It becomes a more protestant idea: fidelityto a scheme of principle [implies that] each citizen has a responsibility to identify,ultimately for himself, . . . his community’s scheme.27

In other words, interpretation is the faculty that enables the individual to expresshis political autonomy, that is, his right to self-legislation. This protestant princi-ple, however, does not apply when the interpreter is a judge. In the case of judges,interpretation is the very faculty which prevents judges from self-legislation.Interpretation is the faculty which allows the judges who work on the chain novelto continue the existing story of the law in the best possible way without startinga new story.28

So Dworkin solves the counter-majoritarian problem and the problem ofRousseauian totalitarianism with a concept of interpretation, which preventsself-legislation when you are a judge and facilitates self-legislation when youare not. The problem that confronts Dworkin’s theory here is not only a strictlylogical one. The problem is also that the self-legislation of the ordinary indi-vidual is of no significance unless he can rely on a judge to give effect to itwhen the crunch comes. This, of course, puts the individual in the same boatwith the judge, and ultimately with Rousseau’s citizen. The common moralcommitment which she is presumed to share with the collective offers her nosignificant scope for legitimate moral dissent. And her illegitimate dissent willof course not be tolerated.

The little leeway afforded by Dworkin’s distinction between our variousconceptions and the single concept of the moral commitment that we all hold incommon29 is of no fundamental significance. The seamless web of the lawdemands fit, fit which is too tight to allow for significant dissent. Dworkin’stheory of legal integrity certainly sounds less blunt than Rousseau’s conception ofthe general will, but it avoids the counter-majoritarian problem in the same wayRousseau did. Both theories turn on a fundamental intolerance of significantdissent.30



According to Dyzenhaus, Mureinik’s theory of a culture of justification stemsfrom his attempt to address the question that Dworkin’s theory of legal integritydid not address satisfactorily: Legal integrity in itself provides no safeguard forfundamental rights if the fundamental background morality from which the lawultimately derives its integrity is not a culture of human rights.31 However, theanalysis above shows that Mureinik’s theory of a culture of justification succumbsto the same problem. Constitutional review that would simply subject legislationto the formal standards of justice exacted in the judicial review of administrativeaction, is of little significance in the face of a substantive legislative threat tofundamental rights.

The structural parallel between the two arguments again raises the questionwhether “constructive interpretation” does not fulfil a purely procedural, formaland therefore positivist requirement in Dworkin’s theory of law.32 But it alsopoints towards a more specific correspondence between Dworkin’s interpretativecontinuation of the existing story of the law in the best possible way andMureinik’s concern with the procedural requirement that substantive politicalgoals must be pursued in the least harmful way possible. In other words, thereappears to be a link between the best possible and the least harmful.33 We haveshown above that neither “the best possible” nor “the least harmful” approach tothe counter-majoritarian problem addresses the question of significant socialdissent satisfactorily. They avoid it in the same way Rousseau did. Let us never-theless investigate whether a more honest and less edifying understanding of “theleast harmful” and “the best possible” does not provide us some respite from thelegacy of Rousseau.

IV. Friendship and Community Beyond Justification

We wish to make clear from the outset that we have no solution to the counter-majoritarian problem. We believe it is irresolvable. This, however, provides noexcuse for Mureinik, Dworkin, and Rousseau’s avoidance of the problem. Theproblem must be addressed. Irresolvable problems are, after all, the only ones wecan address. Resolvable problems are not real problems. Resolvable problems arefake problems, temporary technical hiccups, often spectacularly disguised ascrises. The counter-majoritarian problem and the problem of significant socialdissent are not technical hiccups. They constitute aporias. They allow no waythrough. They confront us with the impossible. Paradoxically, however, thisimpossibility opens up the possibility of social deliberation that would exceedtechnical procedure. It opens up the possibility of a non-technical ethics. It givespolitics a chance.34 If the word “community” somehow evokes for us somethingother than mere “technical co-operation” or “technical operation,” if it evokes theconcern with a politics that would not be purely instrumental, community tooshould be understood to stand a chance only in the face of the impossibility thatgives politics its chance, the impossibility that allows politics its possibility.35



We shall venture to refer to this non-instrumental community in terms of apolitics of friendship. However, due care must be taken to come to terms with anumber of paradoxes that confront us here.36 The politics of friendship that wouldallow for community only stands a chance in the face of an irresolvable problem,namely, the problem of significant social dissent. In other words, community onlystands a chance in the face of the absence of community. The politics of friend-ship that may be at issue here (if it comes to be an issue) would therefore consti-tute a community without community, a “community of those withoutcommunity” to use George Bataille’s words.37

Do constitutions constitute communities without community? Can a constitu-tion, the new South African Constitution, for instance, be read in terms of the poli-tics of friendship that constitutes a community without community? We believe itshould and will indeed attempt such a reading here.

Constitutions have of course always claimed to be an expression of the unifiedwill of the people. They have assumed a national unity, a homogenous moral iden-tity. This assumption is also evident in the constitutional theories of Rousseau andDworkin. However, the critical function which constitutions have been calledupon to fulfil ever since Marbury v Madison38 constantly reminds us of serioussocial conflict. Constitutional review comes into play when reference to the willof the people expressed in legislation no longer suffices to resolve social dissent.As such, constitutional review always evokes the specter of Hobbes. Constitu-tional review reminds us that constitutions are ultimately to address the problemof societies without community. We shall take this Hobbesian insight into theproblem of societies without community as an irreducible precondition for thepossibility of community. The Hobbesian insight regarding societies withoutcommunity is crucial for understanding the impossibility of community whichopens up the possibility of community.

The line of thought that we propose here is the exact opposite of that whichRousseau and Dworkin offer us. We have seen that Dworkin and Rousseaudismiss the apparent lack of community that results from dissent as a delusion.They do so by invoking a fundamental unity from which the deluded dissenterwould not have departed had she known better. We argue to the contrary thatsocial dissent terminates the apparent harmony and thus discloses the real lackof harmony in so-called democratic societies. Constitutional review shoulddeepen our regard for this lack of harmony. The very essence of constitutionalreview should be seen to consist in the failure to resolve a particular case ofsocial conflict with reference to the common will of the people (as expressed inlegislation or executive action).

We do not propose this line of thought in an effort to be cynical or icono-clastic. We believe that it opens up a possibility for community that the directreference to the constitution as an expression of a common moral commitmentor general will of the people not only fails to do, but actively contributestowards closing off. We have seen that the direct reference to a common moral



commitment or general will of the people must ultimately dismiss all significantdissent as deluded. This dismissal closes off the last chance for community inthe face of real and undeniable social dissent. The fundamental recognition ofsocial conflict, on the other hand, does not perform this dismissal. The acknowl-edgment that we are not united under a common will acknowledges the legiti-mate will of an other that cannot be dismissed.

The last chance for community is in fact also its first chance. The recognitionof the legitimate will of the other in the face of social conflict is a prerequisite forcommunity if community is to be understood as a relation with someone otherthan the self. Community therefore presupposes the possibility of more than one.A fundamental plurality is the conditio sine qua non and conditio per quam ofpolitical life.39

How would constitutional review give expression to a recognition of animos-ity that extends a first hand of friendship? We believe Mureinik’s theory of aculture of justification offers us an important clue in this regard. However, theclue that he offers us requires that we scrutinize with utmost care what the word“justification” means. This critical inquiry requires that we resist the commonunderstanding of “justification” as the “provision of just grounds.” In fact, a crit-ical regard for what we really do when we justify something requires that webegin to understand “justification” as the provision of unjust grounds.

The proposition that justification involves the provision of unjust grounds turnson the recognition that there are no just solutions for the conflicts that arise fromthe sheer complexity of post-traditional and multicultural societies. It will becomeclear that the inferences we draw from this recognition are fundamentallyindebted to the profound contemplation of Jacques Derrida on the impossibilityof justice.40 However, we need not attempt to sound the depth of Derrida’sthought in this regard. Common social sense suffices to see that legislative,administrative, and judicial decisions cannot resolve justly the conflicts that arisefrom complexity if complexity cannot be resolved in the first place. Legislative,administrative, and judicial decisions do not resolve the conflicts that arise fromsocial complexity; they suppress them at the cost of one of the parties involved.This, then, would be our understanding of justification as the provision of unjustgrounds: The unjust sacrifice of a social interest in the pursuit of a social goal.41

Why do we insist that justification should be understood as the sacrificial provi-sion of unjust grounds? Why do we evoke the specter of Duncan Kennedy sovehemently here?42 Are we simply preparing the justification for putting throughour own sacrificial political agenda? Are we committing ourselves to a cynicalreduction of law to politics?43

We believe we are not. We believe that the cynicism is more likely to lie withthose who believe justification to entail the provision of just grounds. The recog-nition that justification consists in the provision of unjust grounds entails anacknowledgment that the decision we justify does not meet the demand of justiceupon us, a demand which is irreducible to any particular social agenda. In other



words, it opens a horizon beyond social political justification. Justification thatclaims that justice has been done closes off that horizon.

At issue with this understanding of justification as the provision of unjustgrounds is a paradox similar to the one evident in the recognition of the impos-sibility of community as the precondition for community. The similarity is nocoincidence. The two paradoxes hang together closely. Refraining from layingclaims to justice when we justify a sacrificial decision is a precondition for thecommunity that would come to consist44 in recognizing the legitimacy of another whom we choose not to tolerate. The acknowledgment of failure to dojustice to an other whom we are not prepared to tolerate is a gesture of friend-ship. It intimates a deep tolerance of the other which displaces a particularrefusal to tolerate in a significant way.

The principles of administrative “justice” which underlie Mureinik’s under-standing of our new constitutional dispensation in terms of a culture of justifica-tion implicitly acknowledge that justification consists in the sacrificial provisionof unjust grounds. Administrative justice most often comes to turn on the demandthat the pursuit of an administrative goal does not infringe upon the rights of indi-viduals more than is absolutely necessary. The limitation of infringement that thisprinciple demands acknowledges that we are inflicting harm in the pursuit ofsocial goals. The harm inflicted can be understood in two ways:

1) As an inevitable consequence of a just aim.2) As an inevitable consequence of an unjust aim which is more important to us

than the interests of the plaintiff.

The first understanding renders the complaint devoid of all substance. It impartsthe message that the demand of the plaintiff is fundamentally mistaken and doesnot really deserve the hearing it has received. It renders the whole procedureredundant.45 The acknowledgment that a social aim is unjust, on the other hand,turns the procedure into an open question as to whether the unjust aim can bejustified. The open inquiry that ensues in this case takes the infringed interests ofthe plaintiff seriously throughout the procedure, right up to and even into the deci-sion that may eventually dismiss the complaint. The decision that dismisses thecomplaint would still acknowledge its legitimacy and therefore the necessity ofcareful scrutiny why it cannot be accommodated. Such a decision does not renderitself redundant. It constitutes itself as an uncircumventable encounter with alegitimate other.46

Mureinik construed his idea of a culture of justification in terms of the princi-ples of “administrative justice.” The analysis above shows that his view of aculture of justification can direct us towards a culture intent on a horizon beyondour practices of justification. This horizon demands that we begin to understandour principles of “administrative justice” as principles of “justified administrativeinjustice.” We believe that the admission of harm done, evident in the procedural



demand that we pursue social goals in the least harmful way possible, commitsone to this understanding of judicial review. We do not know whether Mureinikwould have found this argument acceptable and we lament the fact that we canonly rely on the writings he left us to engage his thought in this regard. We wouldhave liked to ask him why one would continue to talk about the principles of“administrative justice” when these principles commit us to acknowledge theharm we inflict in the pursuit of social goals. If we would call the harm we inflict“just,” why would we still call it “harm”? What cynical cosmology, ontology, orsocial theory – social Darwinism substantiated with reference to an Aristotelianfaith in the beautiful coherence of everything – must we invoke to forge this linkbetween harm and justice?

V. Friendship and Community in Post-Apartheid South Africa

The fundamental social problem that South Africa faces today is the huge dividebetween rich and poor, a divide which is all too clearly drawn along racial lines.This rift can still tear the country apart. The necessity of a huge redistribution ofwealth for durable peace, security, and stability is beyond debate. A general redis-tribution of wealth also appears to be just when one considers the brutal racialpolitics that led to this racial division between rich and poor. However, the ques-tion of whether such a general redistribution can truly achieve justice must beconsidered more closely.

Some years ago, Geoff Budlender articulated the problem with regard to thetension between the constitutional protection of property and the need for a redis-tribution of land in South Africa as follows:

Viewed purely as a matter of individual rights, the case for a property clause isstrong. The benefit which that individual received from generations of apartheid isvery diffuse and very difficult to quantify, and a punitive taking becomes difficultto justify. On the other hand, how does one balance those many existing individualrights against the legitimate needs of a whole community? If full compensation isnot economically possible, the question is really this: where will the burden fall? Aproperty clause linked to compensation at value tends to the result that the burdenwill fall on the property-less. If there is a shortage of resources, they are the peoplewho will go short. We know that in South Africa there will be a shortage ofresources.47

The complexities highlighted here with regard to the redistribution of land applyto all aspects of redistribution. Restructuring employment relations and access tomedical, educational, and other facilities will not be less complicated. Thereshould be little doubt that the overdue demand for justice evident in all thesespheres of life is bound to crystallize, if it crystallizes at all, in terms of socialmanageability, if not downright political expedience. The real terms of redistrib-ution will not be justice, but sacrifice. All these undertakings will require



substantial sacrifices from one of the parties involved. We agree with Mureinikthat these sacrifices will henceforth have to be justified. We fully support the ideathat the constitution institutes a culture of justification. No one in his right mindwould want to live in a society that does not justify the sacrifices it requires fromits members. We would just like to add two caveats.

1. Justification should not take place with reference to notions such as generalwill, common moral commitment, community, or even the “rainbow nation.”These notions imply a fundamental solidarity that consists in common convic-tions and interests. As such, they deny the need for and the reality of sacrifice.One cannot justify sacrifice with reference to that which denies the need andreality of sacrifice.

2. Justification should never take place with reference to justice. Such a referenceto justice would only constitute another denial of sacrifice. A “just” justifica-tion of sacrifice would claim to be just for everyone involved. As such, itwould not require real sacrifice, but the simple dismissal of the unjust or ille-gitimate. Sacrifice is not at issue in the mere dismissal of the insignificant.

Hence our proposition that justification be understood in terms of a sacrificialprovision of unjust grounds. Can constitutional review give expression to thisunderstanding of justification? Mureinik’s understanding of constitutional reviewin terms of the principles of administrative “justice” gives us an important clue inthis regard. These principles admit to the inevitability of sacrifices in the legisla-tive and executive pursuit of social goals. They simply require that such sacrificesremain as few and as small as possible.

We believe that a radical regard for the acknowledgment of unjust sacrificeevident in the principles of administrative “justice” could transform the essentialdynamics of social co-existence. Instead of overt proclamations of community,common commitment, and general will combined with unacknowledged sacri-fices or simple dismissals of everything and everyone that do not fit, we wouldhave overt acknowledgments of irreconcilable interests which give due recogni-tion to those we are unable or not prepared to tolerate. Instead of open avowals offriendship combined with surreptitious exclusions of the unwanted, we wouldhave open avowals of “animosity” which deny their own legitimacy. We believethe future of South Africa turns on the oblique and paradoxical friendship that canresult from the latter.

This understanding of justification would have a very specific bearing on themethod of constitutional review. Instead of defining the rights entrenched in theBill of Rights in an abstract way, it would delimit these rights with reference tothe exigencies of a particular socio-economic context. The first method suggeststhat rights have fixed boundaries which logically exclude certain claims inadvance. The second method suggests that rights indicate a more or less openspectrum of legitimate claims, the parameters of which must be determined



specifically with reference to what is possible under the particular social circum-stances at issue.48 The first method would deny the rightfulness of claims it woulddismiss; the second would deny certain claims and still concede to their rightful-ness. The first method would suggest that a claimant was wrong to bring thedismissed claim to court; the second would admit to the failure of society to grantthe claimant his rightful claim. The first method would lay claims to justice; thesecond would acknowledge the unjustness of the failure to grant the claim.

Let us consider two cases recently decided by the South African ConstitutionalCourt. The first, Harksen v Lane NO,49 concerned the constitutionality of insol-vency legislation which grants the trustee of the insolvent estate the power toattach property of the insolvent’s solvent spouse. The claimant claimed that thepowers of attachment granted to the trustee by section 21 of the South AfricanInsolvency Act constitutes an expropriation of property and an infringement ofher right to equality before the law. The second case, Soobramoney v Minister ofHealth, KwaZulu-Natal,50 concerned the constitutionality of an administrativedecision not to grant a person life-prolonging medical treatment which he couldnot afford himself. The claimant claimed that the right to life and the right toemergency medical treatment entrenched in sections 11 and 27(3) of the Bill ofRights included the right to be given life-prolonging medical treatment. TheConstitutional Court rejected this argument.

In Harksen, the majority basically followed a definitional approach. Itproceeded by determining in advance and in an abstract manner the meaning ofproperty, expropriation, and equality. The claim was rejected on the basis of notfalling within the definition of the rights involved. In other words, the courtdenied the rightfulness of the claim. The court basically told the claimant she waswrong to bring the claim to court. We do not wish to take issue with the correct-ness of the judgment here. We simply cannot share the view that the claim at issuelacks rightfulness. It is certainly not farfetched to claim that the insolvency of aspouse should not force the solvent spouse to be deprived of property until sheproves the property to be truly hers. We therefore believe that the court whichdecides to deny such a claim should not focus narrowly on the definition of therights at issue, but rather on why society fails to grant the claim in a particularcase. In other words, the court should emphasize the failure of society to grant theclaim and scrutinize whether this failure can be justified.

The dissenting judgments of Justices O’Regan and Sachs in Harksen followedthis approach and concluded that the failure could not be justified. O’Regan putforward the simple argument that the interests of creditors could be protected byless invasive means, as is the case in the insolvency legislation of the UnitedKingdom, Canada, and Australia.51 The existence of less invasive means to securethe interests of creditors in other countries does not in itself constitute a groundfor striking down section 21 of the South African Insolvency Act as unconstitu-tional. It may be the case, for instance, that South Africa does not have theresources for instituting a less invasive insolvency system. The problem is,



however, that the majority judgment offers no such justification. It simplydismisses the prejudice suffered by the solvent spouse as “an inevitable conse-quence of a dispute between a trustee of an insolvent estate and a solvent spouseas to ownership of property.”52 Justice O’Regan’s judgment shows that there isnothing inevitable regarding the prejudice the solvent spouse suffers as a result ofsection 21. The reference to “inevitability” in the majority judgment thereforeraises the question of whether the majority judgment does not indeed signify asurreptitious commitment to a patriarchal society that does not sacrifice the realinterests of women, but simply dismisses them as insignificant.53

The court was patently less dismissive of the claim in Soobramoney. The rejec-tion of Soobramoney’s claim was substantiated with detailed references to theshortage of resources that made it necessary to award available resources topatients whose condition was not as critical as his. The court thereby acknowl-edged that we are a society in which the healthy and the strong are still valuedmore than the sick and the ailing.54 But this acknowledgment, cruel as it is,offered the court an opportunity to square up to the limitations of our society andto recommit itself to the transformative spirit of the Constitution:

We live in a society in which there are great disparities of wealth. Millions of peopleare living in deplorable conditions and in great poverty. There is a high level ofunemployment, inadequate social security, and many do not have access to cleanwater or to adequate health services. . . For as long as these conditions continue toexist [the constitutional] aspiration [to transform our society into one in which therewill be human dignity, freedom, and equality] will have a hollow ring.

The court’s various concessions that the claim would have been granted if we hadlived in an ideal world signaled a regard for the fact that we do not live in a justsociety.56 It conveyed the message to the claimant that his claim was rightful andadmitted to the failure of society to meet a rightful claim. In other words, hisclaim was not simply dismissed; it was explicitly sacrificed in favor of “the largerneeds of society.”57 The claim was considered to be valid enough to warrant anexpress concession of sacrifice. This concession marks an essential differencebetween the Harksen and Soobramoney decisions.

The concession of sacrifice in Soobramoney embodied a paradoxical compas-sion. It extended a hand of friendship where none exists. This compassion mustnot be confused with mere sympathy for the plight of the claimant. At issue hereis the deeper political significance of a society that would be prepared to face itssacrificial practices and willing to constantly reconsider their necessity. A societythat would constantly reconsider the necessity of its sacrificial practices wouldblur an essential line. It would render itself fundamentally uncertain as to whomit excludes and whom it includes. Such a society would therefore have no commu-nal boundaries. It would not be a community. It would come together only in theexperience of a lack of community. Community without community might be theonly apt expression for this togetherness. Such a society would have no natural or



obvious friends. Neither would it have natural or obvious enemies. It would cometogether in the uncertainty that precedes the clear line between the friend and theenemy.

South Africa’s future may well depend on a little less clarity, a little moreconfusion, as to who our friends and enemies are.58

NOTES

1. We wish to express our indebtedness to discussions with Danie Goosen, Wessel le Roux,Joe Singer, André van der Walt, and Karin van Marle for the thoughts developed in this essay.Responsibility for what we have written nevertheless remains ours.

2. Donald Passman, All you need to know about the music business (Harmondsworth: Penguin,1998), 227. We are indebted to Theodora Michaletos for this reference.

3. The Constitution of the Republic of South Africa Act 200 of 1993 (the “interim” Constitu-tion) was authored by the Multiparty Negotiating Forum at Kempton Park, and came into force on27 April 1994. The interim Constitution provided inter alia for the election of a ConstitutionalAssembly, which had to draw up a “final” Constitution. It also contained a set of principles, agreedto by the political parties at Kempton Park, with which the final Constitution had to comply. TheConstitution of the Republic of South Africa of 1996 (the final Constitution) was adopted by theConstitutional Assembly in 1996, and came into force on 4 February 1997.

4. Cf., Karl Klare, “Legal Culture and Transformative Constitutionalism,” South African Jour-nal on Human Rights 14 (1998): 155. The South African Constitution “evinces an understandingthat legal and political institutions are chosen, not given, that democracy must be periodically rein-vented, and that the Constitution itself is the contingent (even fragile) product of human agency.”Cf., Henk Botha, The Legitimacy of Law and the Politics of Legitimacy: Beyond a ConstitutionalCulture of Justification (unpublished LLD thesis, University of Pretoria, 1998), 413. The Constitu-tion “aims to institutionalise an ongoing, transformative discourse on the foundations of our polityand our national identity.”

5. See Etienne Mureinik, “A Bridge to Where? Introducing the Interim Bill of Rights,” SouthAfrican Journal on Human Rights 10 (1994).

6. In a recent issue of the South African Journal on Human Rights, a number of eminent SouthAfrican and foreign legal academics paid tribute to Mureinik’s contribution to public law theory,and interpreted and applied some of his views. See in particular David Dyzenhaus, “Law as Justifi-cation: Etienne Mureinik’s Conception of Legal Culture,” South African Journal on Human Rights14 (1998).

7. Ibid., 34.8. That the Constitution views democracy and rights as complementary values, is evident from

inter alia the following provisions: the Constitution aims to “establish a society based on democra-tic values, social justice and fundamental human rights” (preamble); the Constitution is founded onthe values of “[h]uman dignity, the achievement of equality and the advancement of human rightsand freedoms[;] . . . the rule of law[; and] . . . a multi-party system of democratic government, toensure accountability, responsiveness and openness” (sect. 1); the “Bill of Rights is a cornerstoneof democracy in South Africa” (sect. 7); rights in the Bill of Rights may be limited only to the extentthat “the limitation is reasonable and justifiable in an open and democratic society based on humandignity, equality and freedom” (sect. 36); when interpreting the Bill of Rights, a court must“promote the values that underlie an open and democratic society based on human dignity, equal-ity and freedom” (sect. 39).

9. Mureinik’s constitutional thought is, of course, by no means unique in this respect. Processtheorists emphasize the role of judicial review in promoting the democratic process (see e.g., JohnHart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard Univer-sity Press, 1980)); civic republicans attempt to show how the two major premises of American



constitutionalism, viz. the rule of the people and the rule of law, can be reconciled through a repub-lican reading of the Constitution (see e.g., Frank Michelman, “Law’s Republic,” Yale Law Journal9 (1988): 1493, 1499–1503); and Habermas insists that democracy and rights are internallyconnected, and presuppose each other (see Jürgen Habermas, Between Facts and Norms: Contri-butions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1996), 118–131).

10. Etienne Mureinik, “Beyond a Charter of Luxuries: Economic Rights in the Constitution,”South African Journal on Human Rights 8 (1992): 464–471.

11. Mureinik “A bridge to where?” 41.12. It can therefore be argued that Mureinik did not fall into the same trapping as political

process theorists, who fail to see that process is often valued as an expression of substantive values,and that an inquiry into procedural questions often requires us to address substantive issues. Seee.g., Laurence Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories,” YaleLaw Journal 89 (1980) for a critique of political process theory along these lines.

13. The two-stage approach to fundamental rights inquiries has been adopted by the Constitu-tional Court in S v Zuma 1995 4 BCLR 401 (CC) par. 21; and S v Makwanyane 1995 6 BCLR 665(CC) par. 100–2.

14. Section 36(1) lists the following factors that must be considered: the nature of the right, theimportance of the purpose of the limitation, the nature and extent of the limitation, the relationbetween the limitation and its purpose, and less restrictive means to achieve the purpose. See StuartWoolman, “Limitation,” in Chaskalson et al., eds., Constitutional Law of South Africa (Cape Town:Juta, 1996), ch. 12, for an analysis of this section.

15. See e.g., T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale LawJournal 96 (1987); Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buffalo LawReview 28 (1979): 205, 214; Mark Tushnet, “An Essay on Rights,” Texas Law Review 62 (1984):1363, 1372–73; Stuart Woolman, “Out of Order? Out of Balance? The Limitation Clause of theFinal Constitution,” South African Journal on Human Rights 13 (1997): 102, 113–19.

16. Stuart Woolman argues: “If the Court must balance competing rights, values and interests,then it is, perhaps, an inquiry best saved for last.” “Out of Order?” 111.

17. David Beatty, “The End of Law: At Least as We Have Known It,” in Richard Devlin, ed.,Constitutional Interpretation (Toronto: Emond Montgomery, 1991). The Canadian Charter ofRights and Freedoms also contains a general limitation clause – in fact, the limitation clause in theSouth African Bill of Rights (sect. 33 of the interim Constitution; sect. 36 of the final Constitution)has been based partly on sect. 1 of the Canadian Charter.

18. See P.W. Hogg and A.A. Bushell, “The Charter Dialogue between Courts and Legislatures(or perhaps the Charter of Rights isn’t such a Bad Thing After All),” Osgoode Hall Law Journal 35(1997).

19. According to Beatty, “The End of Law,” 23–24, the two-stage approach is best character-ized as a dialogue between citizens and the state. The dialogue is initiated by the individuals chal-lenging the constitutionality of a law or conduct. They must try to persuade the court that one ormore of their constitutional rights has been infringed. If they are successful, it is the turn of the stateto argue that the limitation serves an important purpose, and that the means chosen is proportionateto the end sought to be achieved. See also Jennifer Nedelsky, “Reconceiving Rights as Relation-ship,” Review of Constitutional Studies 1 (1993).

20. See eg Jonathan Klaaren, “Constitutional Authority to Enforce the Rights of AdministrativeJustice and Access to Information,” South African Journal on Human Rights 13 (1997), 549, 550 n.3. But see also Dyzenhaus, “Law as Justification,” 25ff.

21. Rousseau, The Social Contract or Principles of Political Right (London: George Allen andUnwin, 1948) III i.

22. Ibid., I vii.23. It is important to note that Kant, too, experienced no problem in this regard. Kant simply

believed that no one would use his public autonomy in a way that would threaten his private auton-omy. Cf., Habermas, Between Facts and Norms, 101.

24. Cf., Dyzenhaus, 17.



25. Cf., Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), 69.26. Ibid., 190.27. Ibid. That Dworkin is haunted by the totalitarian democracy of Rousseau is clear from a

similar passage in “Equality, Democracy and Constitution,” Alberta Law Review 28 (1990):324–40: “[C]itizens of an integrated community must be encouraged to see moral and ethical judg-ment as their own responsibility rather than the responsibility of the collective unit; otherwise theywill form not a democracy but a monolithic tyranny.” We are indebted to Dennis Davis, “Democ-racy and Integrity: Making Sense of the Constitution,” South African Journal on Human Rights 14(1998), 139 n. 51, for this quotation.

28. Dworkin, Law’s Empire, 228–232.29. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 128.30. Dworkin addresses this problem again in Freedom’s Law: The Moral Reading of the Amer-

ican Constitution (1996); and “Fidelity as Integrity,” Fordham Law Review 65 (1997). These writ-ings still view individual (or minority) autonomy in terms of a degree of interpretative liberty, butafford no scope for serious dissent that would not toe the single line of fundamental convictions towhich the interpretations of judges are bound. As Davis points out well: “Dworkin’s conception ofintegrity is closure by another name.” “Democracy and Integrity,” 141.

31. Cf., Dyzenhaus “Law as Justification,” 17. South African legal theorists were particularlysensitive to this problem as a result of the South African political context. Cf. the earlier articula-tion of this problem in Raymond Wacks, “Judges and Injustice,” South African Law Journal 101(1984).

32. This question dominated the early exchanges between Hart’s “formal positivist” andDworkin’s “morally principled” theory of law. See e.g., E. Philip Soper, “Legal Theory and theObligation of a Judge: the Hart/Dworkin Dispute,” Michigan Law Reivew 75 (1977); and DavidLyons, “Principles, Positivism and Legal Theory,” Yale Law Journal 87 (1977).

33. Dworkin would of course reject such a utilitarian reduction of his theory. Recall the distinc-tion between policy and principle in Taking Rights Seriously.

34. Cf., Jacques Derrida, The Other Heading: Reflections on Today’s Europe (Bloomington:Indiana University Press, 1992), 71–72. For further reflections on the aporia of giving and theaporia that gives, see Derrida, Given Time: 1. Counterfeit Money (Chicago: University of ChicagoPress, 1992), 6–33, esp. 26–30.

35. The question regarding the possibility of politics must today be addressed against the back-ground of a widely perceived lack of community. Habermas refers in this regard to solidarity as ourmost threatened resource. Cf., Habermas, Between Facts and Norms, xlii. Sandel points out that weare “more entangled, but less attached than ever before.” Cf., Michael Sandel, “The ProceduralRepublic and the Unencumbered Self,” Political Theory 94 (1984). If this reminds of a traffic jam,consider Joni Mitchell’s words: “You can feel it out in traffic; Everyone hates everyone!” Cf.,Mitchell, “Sex Kills” on Turbulent Indigo (Reprise Records, 1994).

36. Cf., Jacques Derrida, The Politics of Friendship (London: Verso, 1996), 42, 47 n. 15.37. Cf., ibid., 37, 46 n. 15.38. 1 Cranch (5 US) 137 (1803).39. This was pointed out poignantly by Hannah Arendt. Cf., Arendt, The Human Condition

(Chicago: University of Chicago Press, 1989), 7. However, Arendt failed to discern that plurality isnot a steady “human condition” on which politics can simply rely. Politics generally usurps anddestroys the very plurality on which it depends and through which it comes into existence. It therebygenerally destroys itself. Arendt failed to see this and therefore assumed too readily the possibilityof politics. Fundamental political theory must begin with the question whether politics is possible.It must begin with an inquiry into the possibility of plurality. Not only must it break with the historyof political thought from Rousseau to Dworkin which has always understood the possibility of poli-tics to lie in its ability to suppress plurality. It must also break with the unproblematic assumptionof plurality in liberal political thought. Such a fundamental political theory would also not simplyassume the possibility of a Habermasian intersubjectivity. Intersubjectivity, too, would depend onthe possibility of an interruption of unifying political subjectivity. It is only with the interruption of



subjectivity in the encounter with otherness that inter-subjectivity as something other than subjec-tivity would become possible. Cf., Derrida, The Politics of Friendship, 43.

40. Cf., Derrida, “Force of Law: The ‘Mystical Foundations of Authority,’” Cardozo LawReview 11 (1990).

41. Our understanding of the sacrificial essence of justification is also indebted to Derrida’sconcern with the sacrificial organization of smoothly functioning societies. Cf., Derrida, The Gift ofDeath (Chicago: University of Chicago Press, 1995), 85–86.

42. Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” 205–382; “Form andSubstance in Private Law Adjudication,” Harvard Law Review 89 (1976): 1685–1778. We are moreindebted to Kennedy’s work than this meager reference and the point of criticism expressed in thenext footnote would appear to acknowledge.

43. This is the question that we believe Kennedy has not addressed. It is also not addressed byDennis Davis in his “Democracy and Integrity,” his contribution to the “justification” debate inSouth Africa. Davis concludes his argument with a reduction of justification to a matter of politicalstruggle. This is the vintage CLS position originally articulated by Kennedy and Unger. Again, thisnote of criticism should not obfuscate our indebtedness to Davis as a pioneer of critical legal schol-arship in South Africa. We would just like to take the CLS argument further by investigating thepossibility of judicial argument that would admit to, but also resist the politics of law. We believethe simple reduction of law to politics marks the end of critical legal theory and the beginning ofuncritical legal politics. Unlike Davis’s (at 142), our theoretical reflection does not conclude withPitkin’s poignant articulation of constitutional theory in terms of “a political struggle in which somewin and others lose,” it begins with it. It then proceeds to inquire into the possibility of law and judi-cial review becoming something other than a mere endorsement of the will of the winners. (Notethe double meaning of the word “becoming.”)

44. This community will never exist, hence the expression “would come to consist,” that is, thatwhich would come to be together. At issue here is the community that would come together in thepromise of justice or the commitment to justice that takes place with the recognition of injustice.

45. This would indeed be the implication of a judicial or quasi-judicial decision that denies theright of the plaintiff with reference to a just social end. It would wipe the claim off the slate andreduce the proceedings to the perfunctory exercise of administrative justice. Stated more bluntly, itwould tell the claimant that she has wasted our time. Indeed, to present “a just social end” as a legit-imate ground for denying a complaint should take no time. “Just social aims,” after all, would bepresent in advance. What takes time when we talk about “just aims,” is not the articulation of thejust aim, but the effort to show to the unenlightened plaintiff why the denial of her claim is just. Theplaintiff could and should have saved us the trouble and the effort if she had seen things moreclearly from the start. The justification of the denial of a rightful claim, on the other hand, wouldrequire us to take time to determine whether the denial is really necessary. The result of the inquirywould not have been available in advance. The answer would in fact never be “available,” not evenafter the inquiry. The proceedings would only provide a provisional finding as to why the claimcannot be granted as yet.

46. This approach to the decision would therefore truly give expression to Michelman’s under-standing of constitutional review as an opportunity to come to understand ourselves in a new way.Cf., Michelman, “Law’s Republic,” 1528, 1532.

47. Geoff Budlender, “The Right to Equitable Access to Land,” South African Journal onHuman Rights 8 (1992).

48. In this case, the court would rely on the limitation clause (sect. 36 of the South AfricanConstitution) to draw the parameters of the right under concrete circumstances, instead of resortingto abstract definitions. The importance of the difference between these two approaches was firstbrought to our attention by André van der Walt. Cf., in this regard also André van der Walt andHenk Botha, “Coming to Grips with the New Constitutional Order: Critical Comments on Harksenv Lane,” South African Public Law 13 (1998): 23–26.

49. 1997 (11) BCLR 1489 (CC).50. 1997 (12) BCLR 1696 (CC).



51. In these countries the problem of collusion between the solvent and insolvent spouse isaddressed by means of a range of voidable or reviewable transactions. Cf., Harksen, 1528–1529.

52. 1516D.53. This was the argument of Justice Sachs. The fact that section 21 only refers to “spouse” does

not change the fact that in real terms, it is usually a wife who is affected by it. In fact, the neutral-ity in which the article is couched provides a further smoke screen for the gender inequality to whichit gives effect. Cf., 1532–1535.

54. Cf., Joseph William Singer, “The Stranger who Resides with You: Ironies of Asian-Amer-ican and American Indian Legal History,” Boston College Law Review 40 (1998): “Do we wantonly the vigorous, the wealthy, the young?” (177) Facing up to and taking responsibility for thesacrifices society sometimes requires from some of its members is also a central consideration inSinger’s discussion of damnum absque injuria in Singer, “The legal rights debate in analyticaljurisprudence from Bentham to Hohfield,” Wisconsin Law Review (1982): 975–1058.

55. Cf., Soobramoney, 1700F–G, 1706G.56. Cf., 1706D.57. 1707A. It should be noted that the court did not approach this sacrifice as a limitation of the

right in terms of section 36. In fact, Justice Sachs, in his separate concurring judgment, stressed thata limitation of the right in terms of section 36 was not at issue in this case. According to him, thecourt’s decision merely concerned “defining the circumstances in which the rights may most fairlyand effectively be enjoyed” (1713 B). It is not clear how this phrase should be understood. It doesnot correspond to either the “definitional” or the “delimitational” methodological approaches distin-guished above (cf. the text at n. 52). The tenor of the decision is nevertheless much rather that ofdelimiting the right under concrete circumstances than that of defining the right abstractly.

58. That is, if “future” is not to be reduced to the mere continuation of present time, but under-stood fully as the advent of another chance and the chance of otherness imminent whenever weencounter an interpretative uncertainty. Michelman’s understanding of constitutional review as anopportunity for coming to a new understanding of ourselves (cf. n. 46 above) would be crucial forhaving a future, if “future” is to be understood thus. Derrida’s reading of Nietzsche and Carl Schmittin The Politics of Friendship can be said to articulate the way the Nietzschean subversion of thefriend/enemy distinction simultaneously maintains and uproots the friend/enemy distinction inSchmitt’s thought and how this ambiguous gesture is repeated by Schmitt’s own distinction betweenhostis and inimicus or polémios and ekhthros. This subversion may well postpone the politics (theeconomy, rather) of killing and the killing of politics. Cf., Derrida, The Politics of Friendship,50–73, 87–88. It would also postpone its less candid and apparently less offensive relative, the poli-tics of unacknowledged sacrifice or non-sacrificial dismissal. The former is having a field day inSouth Africa today, and the latter is working behind the scenes, as always. Our future, in the generalsense of the word and in the more specific sense indicated here, indeed turns upon the uncertainchance of interpretative postponements of both. Our final question (for now) as regards constitu-tional review: can it precipitate a culture of postponement?



democracy and rights in south africa: beyond a constitutional culture of justification

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