Remembering Arthur Chaskalson - Washington College of Law, American University, March 4, 2013

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.