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

CityPress - - Voices -

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

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