No matter how hard they try, judges will always be subjective
Judges are not scientists. They do not aim at correct answers to legal disputes using neutral and mechanical instruments, writes Leshoaneng V Mantjane
The assertion by Advocate Leks Makua that “sociopolitical backgrounds and life experiences” of judicial officers have no place in shaping judges’ decisions (City Press, October 23 2016) goes to the very core of the current controversial discourse around constitutionalism and constitutional adjudication. However, Makua’s article is disturbingly flawed, both in theory and practice.
Reminiscent of a conservative theory of crude formalism that had characterised interpretation during apartheid, it is inconsistent with the letter, spirit and transformative vision of the Constitution. Makua wrongly assumes that judges are at best valueless and apolitical beings and, at worst, mindless traffic filters.
The fact that the Constitution calls for a culture of justification and transformation of social, economic and political relations illustrates that judges are required to take into account their personal life experiences. Despite some lapses in other important areas, the Constitutional Court has made significant jurisprudential strides that signalled both a decisive break from, and a ringing rejection of, the apartheid past.
Founded on the foundational values of democracy, freedom, human dignity and equality, our Constitution seeks to transform the inequitable and unjust social, economic and political relations that were a defining feature of the society under the obnoxious apartheid past.
In short, it seeks to address the legacy of apartheid. This and the fact that the Constitution not only recognises “the injustices of our past”, but also pays homage to the anti-apartheid struggle veterans and martyrs who “suffered for justice and freedom”, presuppose that judges approach legal issues informed by their moral and political values. But this should not be misconstrued to mean that the Constitution is so elastic as to mean anything we want it to mean.
However, judges are not scientists. They do not aim at correct answers to legal disputes using neutral and mechanical instruments. The Bill of Rights is value-laden and thus cannot be construed in the abstract. It must be understood within a particular social, economic and political setting. Hence the consensus among legal academics that the jurisprudence of the Constitutional Court in the first few years of its existence generally reflected the prevailing ethos of a conservative legal culture in which its members had been “socialised”.
Despite Makua’s protestations to the contrary, judges do not work with an objective medium. The Constitution is a political document and the product of a particular social, economic and political era. Karl Klare puts it thus: a “foundational law is not and cannot be neutral with respect to the distribution of social and economic power”. Therefore, the idea of social justice must constantly inform the interpretation of the human rights provisions. This requires of judges to exercise abstinence from reliance on the static theory of legal liberalism and its advocacy for a formal, literal approach to judicial decision-making.
Granted, the independence of the judiciary is the hallmark of a constitutional democracy. However, judicial independence and subjective adjudication are not mutually exclusive. On the contrary, they are mutually reinforcing at the point of intersection. Then Constitutional Court president, Arthur Chaskalson, had this to say about the inevitability of judicial subjectivity in decision making: “The subjective attitudes that may be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts, and is almost certainly present to some degree in all court systems.” Thus, all that counts in the final analysis is for judges to account and take responsibility for their decisions.
We, the people, have adopted this Constitution as a living organism not only to heal the divisions of the past, but also to establish a just and caring society founded on the core values of accountability, responsiveness and openness where judges’ philosophical outlooks on life colour judicial decisions.
Mantjane is a Unisa student