Dilemmas for the Judiciary
mental restructuring of society and state with a view to social justice, as opposed to the more conservative constitutions which merely seek to protect the status quo – for long time the standard mission of constitutions. Harbeson's assumption seems to be that the Rule of Law is feasible (and indeed necessary) for the conservative constitution (and perhaps market economies) but most likely does not fit a transformative constitution. Why does he think that?
Picking up from CJ Mutunga's elaboration of a transformative constitution, in particular a key and activist role for the judiciary, Harbeson considers that the Rule of Law would not be observed closely; it must give way to other priorities. He quotes Mutunga's explanation of the role of the judiciary in a transformative constitution, that the judiciary is being asked to play a more creative or at least an active role in the transformation of society, than is implicit in the general understanding of the Judiciary's role under the Rule of Law.
He quotes Mutunga's theory of the approach of the judiciary towards the interpretation of a transformative constitution as follows – as one “that shuns positivism, that accepts [that] judges make law”, thereby “establishing the judiciary as an institutional political actor.” For his part, Harbeson explains the traditional role of the judiciary thus: first, under a conservative constitution, the judiciary is required merely ( but freely and fairly) to apply the existing law to the facts of the case; secondly, Anglo-saxon jurisprudence fundamentally commits judges to “finding” the law, not making it which is the province of the legislative and to some extent the executive branches of democratic government. This theory is deeply rooted in the European medieval origins of modern Anglo-saxon jurisprudence in which the very idea of legislating law itself had not yet been established.
By sharp contrast, Dr Mutunga's con- ception of transformational jurisprudential explicitly entails judges “developing law in a way that responds to the needs of the people and to the national interest.” He considers that Mutunga's approach departs from the Anglo-saxon theory that judges are constrained by the principle of stare decisis, the Latin term which means literally “to stand by things decided,” to abide by precedent in cases and controversies brought before them. To be fair, he elaborates that “Dr Mutunga would [not] disregard precedent so much as he would regard it is insufficient in and of itself in for what constitutional jurisprudence needs to be in the context of new evolving developing country democratic states.”
Thirdly, Harbeson say that “it is axiomatic in Anglo-saxon jurisprudence that judges are to be apolitical. They are to stand outside the explicitly political processes of democratic governance in order to enforce the cardinal principle that democratic governance is governance of laws, not of men (or women). Judges are to be the guarantors that everyone plays by the basic rules of the political game as enshrined in constitutions. Dr Mutunga's theory of transformative constitutionalism, however, makes the judiciary an