Saturday, November 10, 2012

"For Martin Chanock: Essays on Law and Society"

Hot off the presses: “For Martin Chanock: Essays on Law and Society,” Volume 28, Number 2 of the Australian journal Law in Context, available here. I edited this issue, with Heinz Klug and Penelope Andrews, and all of us were very pleased to have the chance to help celebrate the work of Martin Chanock, a remarkable historian of African and South African law, and someone we’ve known and liked for many years.

For those who are interested, the editors’ introduction frames the issue and discusses the eight articles which appear in it, all of which respond in one way or another to Martin’s wide-ranging work. We also quote the eloquent personal tribute to Martin from Jianfu Chen, the former Head of School at La Trobe University School of Law, where Martin is now an Emeritus Professor; Jianfu said that Martin exemplified “decency,” and explained that “the seemingly easy task of being a decent person demands the output of the highest quality of human beings: honesty, integrity, passion, and compassion.” (Page 6)

I also wrote one of the eight articles, “A Bittersweet Heritage: Learning from The Making of South African Legal Culture.” Martin’s book, whose full title is The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2001), is (I said) a “deeply unsettling …. argument that race was at the heart of the entire enterprise of South African judging, not only the regrettable decisions but also the admirable ones.” (Page 76) I am inclined to think that this argument is correct, provided it is understood as a systemic observation rather than an appraisal of each and every judge – since there were individual, remarkable judges who waged legal battle against apartheid even as they held office under it. In the article I sought first to understand how Chanock’s argument could indeed be true, or more precisely to understand how even upright judges, capable of decisions that helped preserve the claims of human rights through very dark days in South Africa, were nevertheless people of their time and not somehow disconnected from its appalling problems.

But then I asked whether it followed, if Chanock’s appraisal was correct, that the right response today, as South Africa seeks to eliminate the taint of racism in its law and its life, is to disestablish entirely the institution of judging as it was practiced before the end of apartheid. My answer to this question was and is “no.” The old system’s formalism, with its “austere, independent judiciary, engaged in determination of outcomes through the application of a highly rationalised and complex logical process” (page 84), certainly needs reshaping. Its elitist manner should be diminished and its substantive reasoning made to rest on the new egalitarian liberty embodied in the constitution – changes that the Constitution, and the Constitutional Court, have aimed to accomplish. But the fundamental stance of judicial objectivity, the aim of judging “without fear, favour or prejudice,” the commitment to the idea of judges as experts on the law – all these, I urged, are both a kind of formalism and integral to liberty, in South Africa and throughout the world.

I’ll set out here the last few lines of the piece (page 88):

If the courts are to listen, and to help shape a country in which other government actors also listen, then perhaps what South Africa needs is not to beware of formalism but to beware of formulas. Let us seek a constitution of no slogans, in which courts – continuing their historic role of providing a measure of independent judgment about society – deepen their contribution by being as sensitive as possible to the entitlements, and imperfections, of all who come before them.

And the other seven articles are interesting too!

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