Last Monday, March 4, 2013 I had the privilege of speaking at American University's Washington College of Law at a memorial tribute to Arthur Chaskalson, "Chief Justice Arthur Chaskalson: Celebrating the Life of a Transformational Lawyer and Judge." The event was recorded on video, and can be seen at http://media.wcl.american.edu/Mediasite/Play/379a119cebd440ffb3e8f4a84122cfec1d. I personally learned a lot from the moving talks that others gave that day. Here's an approximate version of what I said:
Thanks to Dean Claudio Grossman and Professor Sean Flynn.
It’s an honor to be here with others who remember Arthur.
Let me begin by mentioning that there will be a second
memorial for Arthur this Friday afternoon in New York. There are so many people
here in the US whom Arthur deeply affected, that even two memorials won’t be
enough.
In 1986, when I was teaching at Columbia, Jack Greenberg,
formerly the head of the NAACP Legal Defense Fund, began inviting
anti-apartheid lawyers from South Africa to come over to Columbia, and I had
the great good fortune to become the person who put together and co-taught a
course with them on South African law, called “Legal Responses to Apartheid.”
The first time I taught, my co-teachers were Sydney and
Felicia Kentridge, and Dikgang Moseneke. All three were remarkable. Sydney had
done the Biko inquest, representing Steve Biko’s family, and would go on to
lead the bar in London, Felicia had co-founded the Legal Resources Centre with
Arthur, and Dikgang had emerged from imprisonment on Robben Island as a
teenager to become an attorney, later an advocate, later among many other roles
the Deputy Chief Justice of South Africa. So I had a wonderful introduction to
South Africa law.
The second time I taught was with Arthur, who spent the
academic year 1987-88 at Columbia. I had thought I understood South African
law, but from Arthur I realized that to really understand it I would have to
immerse myself in it. It was easy, and accurate, to say that South African law
in the late 80s was horrifically unjust. But if that was all you could say, it
was impossible to understand how Arthur and others were actually succeeding in
working against apartheid within that very legal system. So I realized that I
had a course of study ahead of me.
Arthur did one other thing for me that year, which was to
invite me out to South Africa. I went in the summer of 1988 for three weeks,
stayed at the Chaskalsons’ home in Johannesburg – though that time Lorraine
Chaskalson was still back in New York in an academic program there – and met a
group of lawyers who were engaged in the same work as Arthur: trying to find
ways to achieve some measure of justice, or progress towards justice, in the
courts of apartheid South Africa. It turned out that I’d found one of the main
concerns of my adult life: the challenge to apartheid and the efforts to build
a just nation in its wake.
So I’m personally very, very grateful to Arthur and to
Lorraine, my friends, for having done so much to set me on this course and for
the quarter-century of support and friendship they’ve given to my family and
me. I can’t resist saying that if you look at the program for today’s gathering,
you’ll see on the right side a picture of Arthur, sitting next to a handsome young
man. That young man is my younger son David and he’s sitting, obviously
completely thrilled, next to Arthur behind the bench of the Constitutional
Court, during a tour of the Court that Arthur gave to Dave, Teresa, and me in
2009. Arthur looks like he’s having a good time too!
But I haven’t come primarily to talk about Arthur and me and
mine. Instead, let me try to add to our memories and understanding of Arthur,
and to help paint a picture of a man who combined aspects of John Adams, James
Madison and John Marshall in a single life.
John Adams: So let me start with this: Arthur
Chaskalson believed in the law. But how could one believe in the law in South
Africa, when it was shot through with injustice? This is a question that all of
us this morning have been asking. Ambassador Rasool’s image of anti-apartheid
lawyers in South Africa as “dislocated from the law” was very illuminating; so
was Stephen Clingman’s suggestion that Arthur respected the office of the
judge, however dreadful the occupant of that office. Here’s my answer: I think that
Arthur believed in what the law should be, and committed himself to doing
everything he could so that the law could be that as well. So to pursue
the path of the law, he understood that he needed to be faithful to that ideal
law; but that in turn meant that he had to honor the potential for that law
within the harsh and callous framework of South African law as it stood.
So to Arthur, a leader of the Bar, when he represented a
group of anti-apartheid activists on trial for treason in Delmas in the 1980s,
it was a profound step when he moved to recuse the judge in the case (as
Stephen Clingman recounted). But it was also a serious matter when he and his
co-counsel, including the extraordinary George Bizos, decided they would no
longer take tea with the judge during breaks in the action – as a mark of their
protest against that judge’s handling of the case.
So, similarly, it was Arthur, representing Dullah Omar –
later Minister of Justice – in a challenge to Omar’s detention under the state
of emergency in the mid-80s, who raised an argument about a possible
interpretive limit on emergency power and apparently indicated in the trial
court that he didn’t have too much confidence in the argument. Who ever heard
of an American lawyer saying he lacked confidence in his own argument? But in
the Appellate Division Arthur went on to say that he now had more confidence in
this same argument – and who ever heard of that either? Arthur didn’t win that
case (I wrote a book about the State of Emergency, part of whose point was to
show that every important state of emergency case in the Appellate Division
upheld the state’s powers).
But Arthur did win other cases, including a remarkable pass
law case from the mid-1980s that his longtime colleague and friend Geoff
Budlender described in his eulogy for Arthur at his funeral in South Africa.
What’s most striking about Geoff’s account of that case, in which Arthur
persuaded a by-no-means eager Appellate Division to read a portion of South
Africa’s pass law in favor of black South Africans – when clearly that law was
never meant to have benign effects for black people – is that the court could
not resist the sheer intellectual force of Arthur’s argument, even though its
import was completely counterintuitive. But logic alone is rarely enough. The
judges of that court were persuaded, I am sure, in good part because they knew
that what Arthur argued was what he believed.
But Arthur’s work was not a rarefied process of intellectual
argument punctuated by tea. (Actually I believe that Arthur and his colleagues
often did their late night case preparation with some whiskey.) The fact is
that anyone opposed to apartheid in old South Africa was a target of the
state’s unwelcome attentions. That first summer that I stayed at the Chaskalsons’
house, lawyers at the LRC office in Pretoria were on the trail of what they
thought might be a burial ground where security forces had disposed of the
bodies of people they had killed. They were consulting Arthur about what to do.
Or rather, they were doing so except when, for perhaps 6 hours one weekend day,
the phone service at the Chaskalson home went completely out. I assume that
Arthur and Lorraine took for granted that their lives were constantly subject
to surveillance, interference and the possibility of worse.
Nor was Arthur merely trying to reform apartheid. In the 80s
it was sometimes possible, from across an ocean, to confuse legal struggle
against apartheid with a failure to really get the point that apartheid had to
end. Arthur had no such confusion. I am sure he had been completely clear on
this point since his days on the Student Representative Council at Wits in the
50s, and since his work with Bram Fischer – the leader of the South African
bar, and a Communist who spent his final years in prison, whose desk and law
books (and, as Stephen Clingman said here, whose gown) Arthur received after
his death. But I remember standing in the Chaskalsons’ garden with him one
evening, looking out at Johannesburg and perhaps saying something about how
strange a combination of achievement and injustice South Africa was, and Arthur
replying that it all had to be destroyed – every bit of apartheid, I
understood, root and branch.
Not that he sought violence – not at all. Every bit of his
legal work was a witness, and an exemplar, of the possibility of peace. He was
under no illusions about the quality of South African justice, but he helped
preserve and to make believable the ideal of what it could be – and that in
turn became a major resource for the new country whose Chief Justice he would
become.
James Madison: As the world has often shown, it is
sometimes in a sense easier to oppose injustice than to rule justly. South
Africans who hated apartheid for its corrupt and racist evil did not
necessarily know much about how to engage in the often-depressing process of
democracy. Arthur threw himself into the work of creating that new democracy,
and he did not shrink from hard choices in the process. He joined the ANC’s
negotiating team – a step that meant he was now in the midst of South Africa’s
political fray. The negotiations were miraculous, but they also featured hard
and sometimes controversial bargaining. The first post-apartheid constitution,
the Interim Constitution, which Arthur played a central role in negotiating,
contained some notable concessions to white anxieties, including, if I recall
correctly, provisions for a right to vote in local elections not only for
residents but also for property owners. But that was part of the price of a
negotiated transition; I am sure Arthur did not relish paying this price or
others like it (most notably, the agreement on amnesty) but he understood that
the path to be followed, the path of law and of truth, had to also be a path
that led forward.
John Marshall: Then, of course, he became the first
President of the Constitutional Court, and ultimately the Chief Justice of
South Africa. The Constitutional Court, an assembly of demigods as Thomas
Jefferson called our Constitutional Convention, set out to build a body of
jurisprudence that was at the same time intellectually rigorous, grounded in
fundamental legal aspirations, and committed to the humane transformation of
South Africa. Arthur led that process, and shaped the internal community of a
court that was notable for its care and for its frequent unanimity. And he
stepped aside early as Chief Justice, characteristically, to make it possible
for an African judge, Pius Langa, to assume the leadership of South Africa’s
judiciary.
Then Arthur retired – as inaccurate a term as one could
imagine. He continued to play a powerful part in South African life, with what
may have been his last public speech a sharp critique of proposed legislation
that threatened the independence of the legal profession and the courts. Along the way, as President of the
International Commission of Jurists, he led a critical examination of US
anti-terrorism policies. It isn’t surprising that this man of the law confronted
a senior Department of Defense official about Guantanamo, and challenged his
arguments on the ground – the undeniable ground – that there cannot in today’s
world be anyone who is somehow entirely outside of the law. Can I just say that
in this respect Arthur also resembled Thomas Jefferson, in being part of a
worldwide community aspiring to freedom?
He was a great man. He was also a very humble man. I once
was joking at dinner about the phrase “a crashing bore,” and some unfortunate
person who I felt had embodied this, and it became quite clear that Arthur
worried that he might be such a person too. He was not, not at all. He was warm
and kind and hospitable and engaged with the world of ideas and culture and a
devoted parent and grandparent – all with his wife Lorraine, who was and is all
those things as well. I loved talking law with him, but I remember at least as
clearly discussions about how much to wash the dishes before putting them in
the dishwasher and about the wellbeing of the cats who lived in the
Chaskalsons’ backyard.
You can catch a glimpse of Arthur in one more story. In
1995, I believe, Arthur and Lorraine were carjacked at the entrance to their
home. This was an era of extremely frightening and violent crime, in which, as
Jon Klaaren, a professor there, once explained to me, the micro-politics of
every encounter shaped how the event would play out. Arthur and Lorraine of
course did not resist the robbery, but Arthur did explain to the robbers that
the papers in the back of his car were from the Constitutional Court’s case on
the certification of the draft South African constitution, and asked them to
leave those papers behind – which I believe they did. Can there ever have been
a micro-political moment quite like that, with the President of the
Constitutional Court politely persuading armed robbers not to interfere with
the development of the country’s constitutional law?
I don’t know just why it is that some oppressive countries
give birth to exceptionally talented and humane people. Why did Tsarist Russia
produce Tolstoy and Dostoyevsky? Whatever the reason, South Africa has been
such a country, the land of many people I’ve already mentioned, of Alan Paton,
Nadine Gordimer and Nelson Mandela – and Arthur Chaskalson, who will be dearly
missed.
