Tuesday, June 30, 2009

The goals of training lawyers in a constitutional state

If the task of law schools is to prepare lawyers to join their country's legal system, then we need to ask what the virtues of lawyers in a constitutional state are. Broadly, the answer is that they are comparable to the virtues of judges in a constitutional state, which I’ve been exploring in other posts.

This is in a sense just an application of the general principle that we train lawyers in the skills of judges -- as in the extensive focus, in US law schools, on the study of the legal opinions of appellate courts. That focus is overdone, because lawyers do a lot besides reasoning about law and shaping plausible arguments in light of past precedents and authority, but these skills are obviously important to law practice. Lawyers also need these skills in order someday to become judges, since we draw our judges primarily from the practicing profession.

But as described so far, all of this can be just training in legal reasoning. Law students are expected to learn to argue either side of a proposition. They employ arguments of many sorts, from parsing of texts by "canons" of interpretation to broad propositions of policy or legal purpose. All this is valuable but it is, by itself, training in technical skills rather than in the work in which those skills are employed.

What case study alone does not give is responsibility for the well-being of a person. Judges have this responsibility, but their responsibility is to all the parties before them, and ultimately the entire nation. Lawyers apprentice in responsibility to all by taking responsibility for individual clients. But it would be odd if that apprenticeship consisted in taking responsibility for one client, with indifference to all other people – this would be training in responsibility for others on one hand, and in irresponsibility on the other. In fact, as officers of the court, lawyers also have some recognized responsibility to the law and the nation. Exactly how much responsibility they have to those other than the client can be debated -- but it is not zero.

Bill Simon, in his excellent book The Practice of Justice: A Theory of Lawyers’ Ethics (1998), argues that lawyers are engaged in exactly the same business as judges. Every day, as he points out, lawyers in effect make law, or at least shape the legal culture and the effective reach of law, by the advice and assistance they give to clients. So, Simon argues, lawyers should only give the advice and assistance that is consistent with justice – just as judges should only render just decisions. This doesn’t mean that either lawyers or judges should simply do what they think would be best; both are under institutional constraints, such as the obligation to abide by precedent or to defer to democratic lawmaking, and lawyers may be under more constraints than judges, who explicitly have the authority to interpret and in some cases to make law.

I might not characterize the role of lawyer or judge quite as broadly as Simon would. For Simon, there ultimately are few if any legal rules fixed by their past articulations either in judicial opinions or in legislative or constitutional enactments. Instead, almost any proposition derived from a literal reading of a legal rule may be modified or resisted on the basis of principles, such as equality or liberty, immanent in the law. This may be right, as a statement of how to handle extreme cases (e.g., to interpret the Fugitive Slave Laws in the years before the US Civil War so as to have no meaningful effect, however contrary that would have been to the intent of those who enacted them). In most cases, however, I think the claims of “the law as written” are substantial, and the process of interpretive reshaping of the past is rightly gradual and respectful rather than avulsive. Simon might well agree with these qualifications, and view them as incorporated –- or at least incorporable –- in his approach.

But I would agree that the lawyer, like the judge, must at least take account of justice as he or she sees it, while also honoring the claims of the law as written. That means that each lawyer, in each case, has some responsibility to consider what the justice of the case is. That consideration is valuable, both as a path to limiting the injustice that the lawyer and her client may do, and as training in the broader responsibility for justice that the lawyer may undertake as a judge (or a legislator).

All of which is to say that law schools need to prepare law students for a practice of law in which they take responsibility for considering the justice of their actions on behalf of clients. The next question is, how?

I’ll have more to say about this, but an initial point, which other readers of Simon such as Kate Kruse have emphasized, is that lawyers do not make law by themselves. Instead, they play their part through interactions with their clients, and the clients – as members of the national community – play their part in law-shaping as well. So the training the lawyer should get in responsibility for justice needs to be a training in responsibility for justice shared, to the degree appropriate, with his or her client.

On how to do all this, more to come.

Thursday, June 11, 2009

The doctrine of "objective invalidity"

The idea of an objective order of constitutional value seems connected to the South African doctrine of "objective invalidity." As explained in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/04, 30 September 2005) (the "declaratory relief" decision that accompanies the main New Clicks judgment), this doctrine holds that if a statute is unconstitutional, it has been unconstitutional since the adoption of the new Constitution or, if the statute was enacted after the constitution's adoption, then since the date of enactment.

As a matter of theory, the doctrine of objective invalidity says that the Constitution's meaning never changes. Its interpretation may change, certainly, as judges develop over time their understanding of what the Constitution declares, but these are not the changes in the Constitution's meaning itself -- just in the judges' perception of it.

At some point in a constitution's history, this theory must become untenable. A law enacted in the United States in 1796, for example, may turn out to be unconstitutional when appraised in 2009, but it doesn't really make sense to say that it in fact was unconstitutional from 1796 on -- since two centuries of affairs have been arranged on the basis of its constitutionality. It's too late to unscramble those eggs.

This isn't news to South Aficans, of course. As a practical matter, as the New Clicks judgment makes clear, the "inexorable effect" of this doctrine is readily mitigated in South Africa -- perhaps more readily solved than comparable problems in the US might be -- by the Constitution's grant of discretionary power to courts to limit the retroactive and even to some extent the prospective effect of judgments of invalidity.

But there is another theoretical implication of this doctrine that in the end may be more important. In principle, the doctrine of objective invalidity implies that the meaning of the Constitution -- the actual, true meaning, not just the judges' imperfect perception of it -- cannot change. A law could not truly be constitutional at one time, but later become unconstitutional because the constitution's own meaning changed. (I'm not referring to changes by actual amendment of the text, by the way; presumably with those, the moment of objective invalidity is the date of the adoption of the constitutional amendment. My focus is on changing meanings of an unchanged text.) It must follow, in principle, that a change in the values or circumstances of South African society cannot produce a change in constitutional meaning -- except by formal amendment.

One can imagine such a legal world. Probably Justice Scalia would argue that this description in fact embodies the correct understanding of what a written constitution does, and he'd have John Marshall in Marbury v. Madison, the founding case of US constitutional law, to cite in support. But I think that if the terms of a written constitution are more or less permanent, then over time their meaning simply must and will change, because meanings from decades or centuries ago gradually become inaccessible, inapplicable and likely unpalatable as well. Our framers didn't know this, it seems to me, because they had not had the experience of being part of a nation governed by a more or less permanent text over the long term; they started that process, but we are the ones who've seen its evolution.

One solution would be not to have a more-or-less-permanent constitution; with frequent amendments, textual provisions could be kept up with the times. But this solution I think is worse than the disease, because it would mean that fundamental guarantees are at any moment subject to impulsive rewrite. The genius of a written constitution isn't that its meaning doesn't change, but rather that its meaning doesn't change impulsively. The relative gradualness of the judicial development and revision of constitutional meaning is an important protection against loss of the hard-won protections a constitution is meant to secure -- even though sometimes judicial evolution isn't gradual.

All that said, South Africa may not be at the point where judicial interpretation inevitably, insensibly, begins to take over from original consensus. Not much time has passed since the Constitution was approved in 1996 (or since the adoption of the interim constitution -- the first post-apartheid constitution -- and democratic elections in 1994). But just as South Africa's courts have in only 15 years adjudicated a tremendous range of claims of constitutional right -- essentially covering in 15 years the ground that has occupied the US Supreme Court for two centuries -- so the process of judicial creation of constitutional meaning is likely already under way. Indeed, even in the slower-paced early years of US constitutional history, it's probably fair to say that John Marshall had embarked on this process as well, despite his emphasis in Marbury on the permanence of the meanings inscribed in the written constitution.

Tuesday, June 9, 2009

Where does the "objective, normative value system" come from?

If South African constitutional interpretation rests on an "objective, normative value system," it is important to understand how that system is to be discerned. The answer, given by the Constitutional Court in its first two decisions, was to adopt "an approach which, whilst paying due regard to the language that has been used, is 'generous' and 'purposive' and gives expression to the underlying values of the Constitution." S v Makwanyane and Another 1995 (3) SA 391 (CC) para 9.

Quoting with approval from a Canadian decision, R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321, 395-96, the Constitutional Court indicated that "this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter [or Constitution] itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter." Makwanyane, para 9; S v Zuma and Others 1995 (2) SA 642 (CC) para 15.

To this the Court added in Makwanyane (para 10) the guidance that a provision of the Bill of Rights (Chapter 3 of the South African Constitution) "must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter 3 of which it is part. It must also be construed in a way which secures for 'individuals the full measure' of its protection." (footnote omitted)

I think it makes sense to say, at this moment in South African history, that these sources can guide judges to an "objective, normative value system." That's not to say that this value system is so precisely structured that unanimity is inevitable; it isn't. But it is reasonable to view the Constitution as embodying a pretty strong consensus about many of the issues facing the newly democratic South Africa -- and that consensus, essentially, is the objective, normative value system.

Two points are striking about this. The first is that the objective, normative value system is enacted -- not just through words, to be sure, but through the history and background that help give meaning to the words chosen. In this sense, South Africa, which suffered bitterly during the apartheid years because of the imprimatur that legal positivism was said to give to every enacted law, no matter how repellent, remains a positivist legal jurisdiction -- it has a pathbreaking constitution because it enacted one.

The second is that the constitutional consensus, like any consensus, must break down over time. Circumstances change, and over time the questions the constitutional adopters actually considered resemble less and less the issues their successors encounter. Just as important, people change and so do their perspectives. Within quite a short time, I think, people may come to conclude that values they hold call for different concrete conclusions than they formerly thought they called for. In the United States, for example, commitment to equal protection found renewed force for African-Americans in the 1950s, then grew to encompass women in subsequent decades, and now seems far along in extending its reach to gays and lesbians -- all without a word of new constitutional text explicitly enhancing the rights of any of these groups (in fact, despite the defeat of the Equal Rights Amendment that would have created textual protection for women).

It seems to me, in other words, that inevitably, over time, the normative value base of South African constitutional law will gradually detach itself from its basis in original, enacted intentions. As it does so, will it find a new "objective" foundation?

Sunday, June 7, 2009

Wild talk and the rule of law

As is well known, ANC Youth League president Julius Malema has said some remarkable things. For example, to a Youth Day public rally, "We are prepared to die for Zuma. We are prepared to take up arms and kill for Zuma."(quoted in Rapule Tabane, "Top brass tackles ANC Youth League," Mail & Guardian Online, Aug 29 2008). ANC secretary general Gwede Mantashe reportedly called judges "counter-revolutionary" (though he denied this," and was quoted as saying, "He [Zuma] is the president of the ANC [....] You hit the head, you kill the snake, When there is that attack on him, it is a concerted attack on the head of the ANC. Everybody says it is an innocent attack on him. We will know that it is an attack on the ANC." ("ANC shrugs off Mantashe's stance on judiciary," Mail & Guardian Online, Jul 11 2008).

The obvious question is how much rhetoric of this sort can come from powerful or prominent leaders without undermining the rule of law in South Africa. That question is already somewhat out of date, since the crisis over legal challenges to Jacob Zuma's political prospects is over. Moreover, early indications in Zuma's presidency suggest that he does not want to prolong the constitutional tension with the judicial branch (see "Parliament names JSC members," Mail & Guardian Online, May 26 2009) -- and that's very much to be welcomed. But the question now posed is whether the effects of such rhetoric will dissipate over time, or whether the seeds sowed by these words continue to grow. No one really knows, and surely the answer isn't already fixed; it depends, instead, on what the next words spoken are, and the next.

Saturday, June 6, 2009

On deciding the case of the search of Jacob Zuma

Last July South Africa's Constitutional Court decided the question of the legality of a set of searches of Jacob Zuma -- now the country's President -- and others, searches directed at gathering evidence to convict Zuma of corruption. The Court upheld the searches by a 10-1 vote -- with both judgments (the majority and dissenting opinions) carefully and dispassionately reasoned. (Thint (Pty) Ltd and Others v. National Director of Public Prosecutions and Others, CCT 89/07, decided July 31, 2008.)

It is remarkable enough for a court to have to rule on issues affecting the potential criminal trial of someone in position to become President of the country. What made this case most remarkable, however, was that while the Court was deliberating, John Hlophe, a judge of the High Court (the trial court of general jurisdiction in South Africa) visited the chambers of two members of the Constitutional Court, allegedly -- that is, as alleged in a complaint filed by the justices of the Constitutional Court! -- in an effort to improperly influence the Court's decision. The justices filed a complaint with the Judicial Service Commission (JSC), the judicial disciplinary body in South Africa. The High Court judge filed his own complaint and also sued the justices in court. In short, a total mess.

In the midst of this the justices of the Constitutional Court had to finish deciding the search case itself. In the words of the majority judgment by Chief Justice Pius Langa (paragraph 6):
"All the members of the Court ... have considered their position in the light of the events mentioned above and their responsibilities as Judges of this Court. We are satisfied that the alleged acts that form the basis of the complaint to the JSC by Judges of this Court have had no effect or influence on the consideration by the Court of the issues in these cases and in the judgments given. It is recorded in the statement of complaint that there is no suggestion that any of the parties in these cases have had anything to do with the alleged conduct that forms the basis of the complaint by the Judges of the Court. The issues relating to the complaint have accordingly been kept strictly separate from the adjudication process in these cases. It is however important to emphasise that the cases have been considered and decided in the normal way, in accordance with the dictates of our Oath of Office and in terms of the Constitution and the law, without any fear, favour or prejudice."

I believe the justices were entirely correct in concluding that they could still judge the case before them fairly. To say this, however, is to say quite a lot about the role of emotion in judging. Recent arguments over "empathy," in connection with the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, might suggest that somehow judges are supposed to decide without emotions. That can't be. How could it be, when neurological investigations are telling us that values cannot be held and applied unless they are given mental valence by emotional foundation?

But once we agree that emotion has a role in judging, the question is, which emotions and how much of them? The members of the Constitutional Court surely felt many strong emotions as a result of the events that led them to file a complaint with the Judicial Service Commission. Those emotions can't have altogether dissipated, since the fracas over those events did not end (and is not over today, in June 2009). Even without this extraordinary feature, the case would have prompted emotion on its own, involving as it did the fate of a potential President, hence ultimately the well-being of the country itself.

When the members of the Constitutional Court concluded that they could fairly decide the search case, therefore, they were not saying that they were unemotional -- which would have been to say that they were inhuman. What they were saying was that their emotions were properly cabined.

What does it mean to "properly cabin" -- while still feeling -- one's emotions? This might not be such a hard question if the only emotions judges felt were "nice" ones -- profound attachment to constitutional values, for example. But the feelings people, including judges, have are more complex and ambivalent than that -- yet judges, with all their human complexity, must render fair decisions.

I don't think we yet have a clear pyschological account of what it means to be an emotional, yet fair, decisionmaker. (We did have an account of how to be a fair, but unemotional, judge -- that is, to adhere always and only to the law -- but that account collapses once we acknowledge that decisionmakers aren't unemotional, and also that the law judges are adhering to is to a substantial extent something they themselves must make as they decide the cases that come before them.)

Some part of what makes the "emotional, yet fair, decisionmaker" is probably which emotions he or she feels most strongly; the judge with a passion for fairness is much more likely to be fair than the judge with a passion for revenge. Some part of it is probably also how the judge judges himself or herself; the judge who recognizes his or her impulse towards revenge is much more likely to handle that feeling well than the judge who denies its existence while embodying it.

Beyond both of these, some part is, I think, a capacity for objective judgment. By "objective" judgment I don't mean judgment somehow from outside the bounds of one's society and its many predispositions and assumptions; none of us can get that far outside ourselves.

But some people are better at resolving conflicting claims than others are. Part of that is probably a distinctive emotional ability -- empathy, to return to that currently-controversial quality, an empathy that extends to every claimant, not just those (whoever they are) whose claims seem most in line with the judge's own inclinations. To be able to hear and understand is to go a long ways towards being able to consider and evaluate. This might be called the capacity to be open-minded.

But there is still the task of evaluation. It seems to me that objectivity in evalution, of the sort humans can achieve, is an ability to regulate one's own thinking. It's not easy to understand how this ability could exist, since it seems that the stream of consciousness (and unconsciousness) flows on, largely as it will. But we know that people say, and quite routinely, things like "I really don't want to do such-and-such, but I think it's the right thing to do." Those statements reflect that we are capable of sorting among our own thoughts and feelings, and concluding that some are entitled to greater weight than others. Objectivity in law, then, is the ability to guide one's own thoughts towards the issues posed by the law rather than those generated by other claims upon us.

South African law reflects a belief in this objectivity, a stronger belief than much current legal theory might embrace. Justice Ngcobo in his Thint dissent says, as the Court has said before, that "our Constitution embodies an objective, normative value system." (Paragraph 375) I think that judges can be open-minded and objective (in the sense I've described) even if the law itself is changing, over time, in ways that make judges (and citizens) the ongoing creators as well as recipients of its value system. But this takes us towards the question of the nature of law, and that small matter is a question for another post.

Friday, June 5, 2009

Crime and the rule of law, especially in South Africa

What's the relation between the rule of law and crime? South Africa's crime rates -- for murder, rape, car hijacking, and similar frightening offenses -- are very high. Does that fact mean that the rule of law is in jeopardy? There must be a connection between having a government constrained by the rule of law and having a society that obeys the law, but it's not a simple connection. We know this because there are societies with very little violent crime, at least crime committed by ordinary citizens, that aren't rule of law societies at all. A neighborhood whose security is guaranteed by organized crime is an example. So was Nazi Germany (assuming private crime was low there). But is it possible for legal values to flourish without legal order?

South Africa, and the rule of law there and elsewhere, are two topics I hope to return to in this blog. More to come.