Jurisprudence rules, OK?
Judge President Hlophe is one of the few jurists to publicly confront racism in South Africa
LAW played a decisive role in the dispossession and oppression of African people in South Africa. In post-apartheid South Africa, law was once again poised to play a central role as an instrument for transformation.
The Constitution was to be the lodestar that guides the process of transformation. However, it appears that pedestrian attention is being given to the tension between transformation and “the deeply entrenched attitudes towards and thinking about what ”The Law is“, how it works and its function in the legal system and society”.
Legal scholarship and practice is overwhelmed and, in turn, overwhelms society with one monolithic view of law as a neutral, objective and value free scientific endeavour.
The Western Cape Judge President Hlophe’s saga sharply brings forth the tension and contradictions.
Judge Hlophe has been labelled a “judicial scoundrel”, a “blight to the judiciary”, “an embarrassment”, “dishonest” and “incompetent”. The hasty expletives have been unleashed even before the Judicial Service Commission making a finding against JP Hlophe. Under the Judicial Service Commission Act, it is the commission that makes a “finding” after considering a “report” from the Tribunal.
How should we then make sense of these almost neurotic expletives on Judge Hlophe despite the fact that a decision on him is yet to be made? How do we make sense of the fact that when it comes to Judge Hlophe, “reason found itself ruined and emptied”?
In dealing with Judge Hlophe, the dominant approach has been to singularly focus on legal reasoning to the exclusion of other complex forces at play. The approach, although not wrong, is analytically inadequate. Perhaps a more rewarding approach may be for us to inhabit the “border”, which is the nominal space between the juridical field and the political field. The approach, however, requires that we critique commonsensical understanding of the relationship between law and politics.
The dominant legal ideology in South Africa is a good start. This is the ideology of positivism and the practice of formalism. Legal positivism and formalism sustain themselves through self-projection as natural, commonsensical and self-evident.
The two approaches to law revel in the separability of phenomena. In this sense, legal norms are artificially separated from other societal norms. Law is said to be only “intelligible as an internally coherent phenomenon”. Law is presented as objective and neutral.
Adjudication is regarded as mechanical process wherein rules are simply applied to facts. In this sense, legal reasoning is said to be autonomous and guided only by legal texts.
The legal or juridical field has some relative autonomy, albeit artificial, and it is in this sense rewarding to have an appreciation of its byzantine make up. It is the case that the legal or juridical field does have its own symbolic protocols, rituals and assumptions. It is also a site of power with its own peculiar politics.
However, contrary to legal positivists and formalists, the peculiarity of “juridical politics”, does not stand alone. It is always contingent on “the other politics”. The combination of “the other politics” and “juridical politics” find concrete expression in the case of Judge Hlophe.
Legal positivist and formalists conceal the possibility that central Judge Hlophe’s case is the trajectory of the transformation project in South Africa. In their relentless pathos, they present their ideology as anti-ideological.
Judge Johann Kriegler of the Freedom Under Law has recently claimed, among others, that post-apartheid South Africa inherited a competent judiciary with high levels of expertise, that the rejection of competent white Counsel is impoverishing the Bench and that had Judge Hlophe practised law before he went to the Bench, he would have been a better judge.
Anti-transformation political views are dressed in a legal garb and transported into the juridical field where it is hoped that because of the largely positivist and formalist nature of our law, they will be received by the law as purely legal matters.
In this sense, those who dare to question and think differently are oppressively dismissed as attacking the rule of law.
What assumptions go unchallenged and what consequences attach to a conception of law as neutral, autonomous, objective and scientific? Is it not the case, as the late Professor AJ van der Walt presciently observed, that transformation can be frustrated by ostensibly technical and neutral approaches that subject the validity and efficacy of laws to the requirement that it should conform with legal tradition?
The consequence of accepting things as they are is that a historically Eurocentric and culturally particular epistemology is privileged at the expense of other equally valid epistemologies. In the process, epistemic violence is validated and naturalised.
Judge Hlophe is among the few jurists to publicly confront racism in the juridical field.
He is also among the few jurists to question the pre-eminence of common law in South Africa. These are uncomfortable but necessary questions.
We should reject the notion that South Africa has reached “the end of history”. Similarly, we should strongly rebuff the petrifying oppressive ridicule that is unleashed on those who dare to question conventional wisdom.
The quest for an emancipatory jurisprudence has never been more urgent. Revisiting the entire South African legal system and long-cherished jurisprudential traditions in order to jettison what does not work and keep what is working may be a good start.