My investiture as NYLS' Martin Professor of Law

Last November, when I learned that I had cancer, was a difficult time. But one irony of that period was that just a few days after I received this diagnosis I was honored with a ceremony celebrating my appointment as the Martin Professor of Law at New York Law School. The appointment itself had taken effect on July 1, 2015, but the investiture ceremony was on November 23, 2015. I was feeling ill, but not so ill as to need to cancel the ceremony. It was a very special moment for me, and I hope to spend many years as the Martin Professor. 

You can view the event at this URL: http://nyls.mediasite.com/mediasite/Play/bebb8f36b5ca40c091bcbfaca7c3de551d. And here is a slightly revised text of what I said that night.

The Practice – and Rule – of Law

Stephen Ellmann

Martin Professor of Law

New York Law School, Nov. 23, 2015

Thank you to all of you. This chair means a lot to me – and your presence even more. Thanks especially to Dean Crowell, who has supported the development of clinical and experiential learning so steadfastly – and me too. Thanks also to Jethro Lieberman for his gracious introduction; I would be proud to hold any chair at New York Law School, and I’m very glad to hold a chair honoring a man, Lester Martin, who was so much a part of the life of New York, but I’m honored to succeed two such scholars as Jethro and Jim Simon in the Martin Chair. Thanks above all to my family who are here, to Maud, Dave, to Frances, and to Teresa, who makes it possible for me to do everything.

            I want to say a few more words of thanks to New York Law School. I haven’t been here for all of New York Law School’s 125 years, but it has been my academic home for 23 years now. I’m grateful for its:

            Students who are so thirsty for understanding and knowledge;

            Faculty, clinicians and classroom teachers alike, who welcomed me to their community and are my friends, and whose commitment to learning and teaching is evident every day;

            Administration and staff who go the extra step, or mile, to make the school function successfully – including, of course, Nancy Guida and her staff, who worked so hard on this evening – and who even respond to emails sent very late at night (yes, Susan D’Ambra and Oral Hope, I am talking about you). And with you, I remember Mary Rose Mercieca, who passed away suddenly last week.

            There are many more people I could thank – please let these brief thank-you’s stand as a proxy for my gratitude to all of you.

            And now let’s get to work. The issues I’ll discuss this evening are matters many of us have thought and worried about, but that is okay: my goal, with T.S. Eliot, is that “we shall not cease from exploration/And the end of all our exploring” – many lectures and articles and years from now – “will be to arrive where we started/and know the place for the first time.”

            My thesis this evening can be stated straightforwardly, but I hope will soon grow more complicated. I mean to argue that the reason why law schools should teach students how to practice law is not to add to their list of skills but to help prepare them for the crucial social role they play, namely the preservation and development of the rule of law.

            The “rule of law” is an elusive though critical idea. I want to say a little about its components, enough I hope to identify some of its crucial elements though hardly enough to complete the task of understanding this complex institution. I’ll define it simply as a system of reasonably predictable laws, enforced through reasonably just processes, as part of a system that protects human rights. That definition could be disputed; one might say that the rule of law isn’t directly connected to the protection of human rights, but South Africa, which spent the twentieth century demonstrating that societies could be ruled by law without rights, seems to me to make clear that the rule of law is of necessity rights-protective, and must be distinguished from what anti-apartheid observers of South Africa sometimes called “rule by law.”

            Lawyers and judges aren’t the only people responsible for preserving the rule of law, of course. Police officers are part of the rule of law; so are investment houses’ compliance officers; so are the people who formulate regulations and issue them for notice-and-comment rulemaking (which I’m discussing with my students in Legislation and Regulation right now).

            But they are important, in some ways that may seem mundane and others that are more dramatic. Let me begin a bit indirectly, with uncertainty in the law. In law school we tend to teach, at least in many of our classes, the tools for developing and manipulating uncertainty. This statutory text (Leg/Reg again) might be read according to a canon that says that if Congress left something out, it intended to do so; or it might be seen as ambiguous enough to be read in light of some overarching purpose Congress had that might have included the very word or idea left out of the explicit text. And so on. It’s very hard to write language that cannot be pushed and pulled by interpretation into meanings that might surprise its authors. And doing that work must be part of the rule of law, for reasons I’ll try to explain later.

            Meanwhile, however, a great deal of what lawyers and law users do has very little to do with such sophisticated ventures into the world of doubt. Much of our legal world is routinized: driving this fast will get you this kind of a fine; providing these warranties will satisfy the other side at the closing on your house; taking this deduction is reasonable while taking that one will look bad at an audit. All these are individual matters, but I take it the same is true in much of the legal world of business as well. And even in politics – as witness the recent resolution of a tied election to the Mississippi legislature by the faithful application of the prescribed statutory method, drawing straws, even though the result was that the Democrat was elected and the Republicans were denied a supermajority in the legislature. There are, in fact, large areas of reasonably predictable, reasonably stable rules by which people structure their lives, and lawyers’ role in guiding their clients’ actions in light of these rules is an integral part of the rule of law. In that sense, and it’s an important one, every honest lawyer’s work with her clients, on any matter, is part of sustaining the rule of law. It’s also, of course, part of enabling clients to exercise autonomy within the law, and morally valuable for that reason as well. The day-to-day business of law practice is moral work, in somewhat the same way that the day-to-day practice of medicine is moral work.

            A world governed by the rule of law is not at all a world free of conflict, however, and another role of lawyers is to help resolve such conflicts. My colleague Becky Roiphe has explored the twentieth-century professional ideal of legal professionalism, in which the lawyer is a coordinator of society. In somewhat the same vein, lawyers are sometimes said to be excellent problem solvers because they are experts in process. So also Anthony Kronman has written, in his 1993 book The Lost Lawyer, about the lawyer-statesman, a lawyer of an earlier age who was distinguished by:

a broad familiarity with diverse and irreconcilable human goods coupled with an indefatigable willingness to enter the fray, hear the arguments, render judgment, and articulate the reasons that support it, even when all hope of moral certainty is gone. At war with itself, this complex set of attitudes nonetheless describes a recognizable moral ideal, an ideal closest, perhaps, to the public-spirited stoicism implied the Roman term gravitas….

            I do not at all want to minimize the importance of this form of professionalism or statesmanship, but I think we must recognize that it is in a deep sense conservative. It maintains. It regulates. It does not provide the impetus for change, at least not so much as it handles change surging from elsewhere. Justice Harlan, about whom Nadine Strossen spoke so eloquently in her investiture speech, is perhaps an exemplar of this wise conservatism. It’s to be admired, but it isn’t the whole of lawyers’ role in change.

The impetus for change remains to be accounted for. I’ve learned about the importance of change in the rule of law from several sources. Ed Purcell’s history, in particular his book on “Brandeis and the Progressive Constitution,”  convinced me that the rule of law rests on no absolute foundations at all. There are vast areas of relative stability, but nothing lasts forever, neither the texts nor the meanings of texts, and in fact lawyers’ (and judges’) reasoning and advocacy skills are always being deployed in efforts to change the rules in one direction or another. Often, moreover, these efforts are not purely motivated, and not transparently conducted. This too is part of the actual nature of the rule of law. Similarly Frank Munger, in his ongoing work on Thailand’s cause lawyers, seems to me to be demonstrating that the path to the rule of law doth not run straight, both because the moves that may make a positive difference in any society depend on the nature of that society, and because the ultimate outcome – that society’s rule of law – may turn out to be quite different from ours.

            Struggle is integral to the rule of law, and by no means all of it is modulated by the august lawyer-statesmen of Kronman’s vision. For me, that lesson came through most clearly in South Africa, which has been an important part of my academic work and my life since the mid-1980s. The critical lesson South Africa teaches on this score is that many of the greatest lawyer-statesmen – in South Africa, all of us know of Nelson Mandela, but Arthur Chaskalson, my friend and the first head of South Africa’s new post-apartheid Constitutional Court, stands out as well – were not dispassionate. They had not lost all hope of moral certainty. They were deft, even masterful, in their use of the tools of legal argument available to them, but they were never infatuated by those tools. Instead, they were absolutely certain of the rightness of their cause, the fight against the inhuman blight of apartheid. Mahatma Gandhi, another lawyer, was no less convinced of the rightness of overthrowing British colonialism. When we stop to think about our own history, moreover, we see many similar examples: Thomas Jefferson, John Adams, Abraham Lincoln, Franklin Delano Roosevelt, Thurgood Marshall, Ruth Bader Ginsburg. These statesmen and stateswomen were not stoics but revolutionaries, either metaphorically or literally. Some, like their counterparts in South Africa, violated the law, sometimes extensively, in what I would call the cause of the rule of law. And this too is a role that the lawyers we are educating may come to take up.

            So now we come to the question of how clinical and experiential education contribute to students’ ability to play this range of roles in the ongoing creation of the rule of law. I want to begin in a sense paradoxically, with the impact of this kind of education on legal reasoning – paradoxically because legal reasoning is often thought to be the domain and the subject of classroom courses; then ask which clinics can best have this and related impacts for which students; and then look at two overarching contributions to the rule of law that legal education in the practice of law has provided: the liberatory effect of the idea of client-centeredness, and the profound clarification that this form of education offers into the moral nature, and moral ambiguity, of lawyers’ contribution to the making of the rule of law.

            Let me start with legal reasoning, acknowledged by all as absolutely integral to the lawyer’s work. I don’t at all suggest that clinical and experiential education is a substitute for classroom training in legal reasoning; but equally classroom training is often not a substitute for clinical and experiential education, even with respect to legal reasoning. After all, expertise theory indicates that expertise consists of mastery of a domain. Transferable expertise is limited, if it exists at all: an expert musician is not an expert conductor, an expert in moral philosophy is not an expert in literature. And an expert in legal reasoning from books is not an expert in legal reasoning that must begin from an encounter with a client, and the client’s ambiguous facts and ambivalent desires, and work from there towards a legal approach that will achieve the client’s objectives. If we trained our students – we don’t do this at New York Law School – but if we trained our students only to be expert reasoners from books, we would have trained them in the wrong thing.

            But to speak of legal reasoning by itself implies that this skill is something disembodied, distinct from the rest of the makeup of the individuals who employ it.  If emotion shapes cognition, as much current research tells us, then emotion surely shapes learning as well. Few things give students so much reason to learn as the awareness that a client’s wellbeing turns on what the student, acting as a lawyer, does. And few things give students so much of a sense of accomplishment as having in fact successfully protected a client’s interest. If we cannot give students these powerful experiences, we risk dampening their curiosity and limiting their engagement. We risk undercutting their learning not just of the values of client representation, but of the elements of legal reasoning.

            All this is quite general; let me now be more concrete about which clinics can have this impact for which students. Data collected in two NALP surveys, and soon to be discussed in a forthcoming Clinical Law Review article by Meg Reuter and Joanne Ingham, make clear that students who choose public interest law find a home in skills courses and especially in those where they work on actual legal matters, clinics and externships. Many of these students, I’m sure, are also thrilled by the chance to work with like-minded faculty; their clinic and externship experiences give them the chance to live, and develop, their ideals; and their experiences also help them to enter the job market with credentials and references that may make a crucial difference. I think we do a very good job launching these students into the world – and these are, I suspect, the students likeliest to play the rule of law role of demanding that the system change.

            But what about the students who graduate and enter private practice? The NALP data, admittedly focused in this respect on students who enter big-firm private practice and so not necessarily applicable to students who go into other forms of private law, say that these future private practitioners took fewer clinical and experiential courses while they were in law school, and – though those who took the courses liked them – they liked them less than their future public-interest counterparts did.

            What accounts for this? It seems to me that one likely answer is that the future private practitioners doubted that taking courses focused on public interest or public service practice – as most clinics and most externships probably are – would really help them prepare for the careers they envisioned. That surely reduced their motivation. Moreover, they were probably right. Again, expertise theory says that we become expert in domains. While the exact dimensions of a domain can be debated (as Ian Weinstein has reminded me), criminal defense is a long ways from patent law. It is easier to take what we learn in one area and apply it to another that is very similar than it is to transfer it to some field dramatically removed from the one in which we have been trained.

            I think it follows from this that we clearly need clinical and experiential training that is set in or near the fields of private practice into which our students are likely to move. In fact, at NYLS we already have several such clinics, and are discussing more. Needless to say, I also think our traditional, social-justice minded, clinical and experiential offerings are essential. Happily, at NYLS, with the benefit of the wonderful gift from Joseph Plumeri that has given us the Plumeri Center for Social Justice and Economic Opportunity – thank you, Dean Crowell, for securing this gift for us – we have the opportunity to build on multiple fronts. But what I most want to say is that, if I am right that the roles our students will play in the private practice of law will be part of the maintenance of the rule of law – a rule of law that aims for justice and honors human rights – then creating such clinics is not a departure from a social justice mission. Instead it is another way to contribute to social justice. And it is actually a very special opportunity: to infuse into the teaching of the practice of law in these fields a sense of their social significance, so that we do not wind up essentially telling our graduates that their work is only socially meaningful if it falls in the cabin of what we call public interest law.

            Now I’d like to talk about two broader ways in which what clinical and experiential courses teach about the practice of law is specially important to students’ and graduates’ contribution to the rule of law. The first is the idea of client-centeredness, probably the single most important element of the past 40 years’ academic, that is to say clinical, reconceptualization of law practice. Clinicians study law practice as doctrinal teachers study law doctrine, and the impact of that somewhat removed reflection is important. The idea of client-centeredness can be seen, as Becky Roiphe has thoughtfully argued, as a form of lawyers’ drawing back from their professional role of managing social conflict. That point has force, especially if client-centeredness is understood as a form of self-enforced passivity on the part of the lawyer in his or her interactions with the client. But I don’t see it that way; I think client-centeredness is or should be, in a phrase Bob Dinerstein coined, engaged client-centeredness, in which the lawyer offers the client the full benefit of the lawyer’s experience while trying hard to simultaneously assist the client to make his or her own choices. In calling on lawyers to practice this way, and training their students to go out into the world to practice this way, clinicians have been adding to the foundation of the rule of law, by removing a form of lawless or arbitrary power – the lawyer’s imposition of his or her will – from the processes of the law itself. And the work is not done: the lawyer-client relationship is, in many ways, an unequal one, and developing an understanding of what the lawyer committed to the rule of law should offer her client is a task that is not yet complete.

            The last contribution to educating our students for the rule of law that I’ll discuss is surely the most paradoxical. We teach them about moral values. Often we do so by supporting the students’ most idealistic impulses, which contribute so much to achieving zealous and caring representation. But we also do so in good part by teaching them about moral ambiguity. Lawyers are faithful to legal texts – except that what those texts mean is always subject to argument and reargument, and almost no one seems to think, really, that the answer to the question of what does a text mean is “what did its author intend?” Or to give a different, and important, example: Richard Sherwin has been exploring in depth the ways that today’s media, such as film and video, affect how legal decisions are made. But once we know that these effects exist, we know that lawyers will – indeed, as zealous advocates, must – make use of them. As Richard has argued, in principle this is no different than what advocates since Demosthenes have done with the techniques of rhetoric.

And the point can be generalized: as we learn about human beings’ cognitive limitations, we also, at the very same time, are learning about techniques that might manipulate those cognitive limitations. So in recent years there has been a lot of attention to the power of narrative as a way to convey to a decisionmaker the human essence of a situation. But we know that human beings’ reasoning is limited by what’s called the “heuristic of availability,” which essentially says that people tend to decide things based on the examples of such things that come most readily to mind. The risk of shark bites is exaggerated because the stories stick in our minds; and narrative helps make things stick in our minds. So of course we should use narrative, but we should be clear about the extent to which we are engaged not in presenting “truth” but in conveying, within the rules to be sure, a story of what the truth might be. And as students learn these skills, they also encounter, often and perhaps inevitably, the reality that their clients – on whose behalf they engage in such careful presentation, and for whose wellbeing they care so much – may be lying.

And this brings us back, emphatically, to the rule of law. Ed Purcell has wonderfully examined the maneuvers of judges, in particular, as they seek to shape and reshape the legal system. But maneuver, manipulation, is part of the rule of law at every stage. I don’t mean to suggest that this behavior is lawless or unprincipled. Quite the opposite: it is law-governed and should be principled, and this behavior is an integral part of our creation of a rule of law. From the crooked timber of humanity nothing completely straight can be made; but from the lawyer’s role in seeking, for flawed people and by means that may exploit other people’s limitations, what the law provides, from that role can and does come a rule of law. We can arrive at this place, and because we and our students know it for the first time, make of it the best place that it can be.

Why did South Africa let Sudan's president come and go without arresting him?

One of the more depressing news items lately has been the story of South Africa’s refusal to arrest Omar al-Bashir, the President of Sudan for whom the International Criminal Court has issued an arrest warrant. Despite that outstanding warrant, Bashir was allowed to come to South Africa for a meeting of the heads of state of the African Union, and when a South African court ordered that he not be permitted to leave until the court could decide what South Africa’s legal obligations to execute that warrant were, the South African government instead enabled him to fly out of the country. The Mail and Guardian, a South African newspaper, reports that this was the result of decisions at the highest levels of the government: “President Jacob Zuma and his key security ministers plotted to ensure Sudanese President Omar al-Bashir’s safe passage out of South Africa, flouting a court order and international convention,” it says. 

That all sounds like the South African government putting political ties with Africa (and perhaps domestic politics as well) above legal obligations, and indeed that’s broadly how Obed Bapela, described by the Mail & Guardian as “the head of the ANC’s international relations sub-committee and deputy co-operative governance minister,” justified it. The Mail & Guardian quotes Bapela: “We would have been seen as lackeys of the West. We had to choose between the unity of Africa and the ICC and we chose Africa. We said we can deal with the ICC later.”

But there’s a twist. According to a news24 article, while South Africa considered whether or not to let al-Bashir leave, Sudan did not just wait patiently. Instead, “shortly after Al-Bashir left for the African Union summit,” Sudanese forces surrounded the bases of South African soldiers who are stationed in Sudan as UN peacekeepers. Moreover, the article indicates, the Sudanese forces would have been much better armed than the South Africans, because – even though the South Africans are in the country under a UN mandate – Sudan has repeatedly refused to allow South Africa to fly in additional military equipment for its troops. Fortunately for the South Africans, according to a soldier’s message quoted in news24, “The battalion commander said after Bashir touched down safely in Khartoum, all the [Sudanese] troops were withdrawn.”

Now the reason that al-Bashir’s case is before the International Criminal Court is that the UN Security Council referred the case to it.  But the Security Council also must have provided the authority for the peacekeeping operation in Sudan, and thus for South Africa’s military presence there. Surely the UN was aware of Sudan's interference with South Africa's efforts to equip its troops fully. So if South Africa shrank from enforcing the ICC’s warrant in part because its troops were vulnerable to Sudanese pressure, isn’t that attributable at least in part to the Security Council itself?

One might ask, of course, why South Africa put up with this vulnerability, and why it decided to welcome al-Bashir at this meeting when he had for years been undercutting the South African soldiers stationed in his country. Certainly the Security Council is not solely responsible for the resulting crisis, even if South Africa’s ultimate actions were driven by concern for its troops. And in any event this fear may not have been the South African leaders' motivation; they may have been committed to defying the ICC all along, and if so then the reported Sudanese troop movements were just al-Bashir’s way of hedging his bets.

One more question: If, in fact, South Africa’s political leaders chose to send al-Bashir back because they feared his retribution against their soldiers, what should a South African court say about this? There are important reasons for a court to rule on the legality or illegality of the government’s actions, as a vindication of the rule of law. But an American court might answer that it should say nothing at all, because this kind of geopolitical, military maneuvering is beyond the courts’ competence – it raises “political questions” rather than judicial ones. An American court might also defer to the executive’s view that al-Bashir had head-of-state immunity while attending the African Union summit; that position may be relatively unpersuasive legally but a US court might defer to it because of the executive’s special responsibilities in the field of foreign affairs. 

South African courts don’t generally accept that there are legal questions that they shouldn’t rule on, nor do they tend to defer to executive legal interpretations, and that commitment to principle is deeply admirable. But if there was ever a case for a South African court to avoid confrontation with the executive branch, this one perhaps is it. 

When is formalism a mistake? Two guides to an answer from a South African tax case

When is formalism in legal reasoning a mistake? When, if ever, should a court hold to literal language or inflexible rules?

Here are two perspectives on those big questions, from the South African Constitutional Court case of  Liebenberg N.O. and Others v. Bergrivier Municipality (CCT 104/12, decided June 6, 2013).

First, the Bergrivier Municipality had the authority to impose “rates” – property taxes – on all property within its borders. The statute on which the municipality relied for this authority, beginning in late 2000, was the Local Government Transition Act 209 of 1993 (the “Transition Act” – so named because it was enacted as part of the legal transition from apartheid to democracy in the early 1990s). In particular, the municipality utilized section 10G(7) of the Transition Act, a section adopted in 1996, which specified various procedures that had to be followed.

All this seems, really, rather dull. But the case had a backstory. One of the governance changes made since apartheid ended was to make South Africa a nation of wall-to-wall municipalities: every place in the country is in some municipality. That meant, as the Constitutional Court explains (¶ 5) that rural areas formerly beyond local cities’ taxing power now came within those cities’ jurisdiction. In Bergrivier, however, a group of rural landowners did not cooperate. Moreover, the method of noncooperation they chose was not to pay the rates levied and then sue for a refund. (¶ 6) Instead, they just didn’t pay, apparently for several years – thereby making themselves a new part of the culture of nonpayment, a heritage of the anti-apartheid struggle that, as the Constitutional Court observes (¶¶ 79-80), poses a real threat to the ongoing efforts by the post-apartheid nation to govern itself effectively.

Ultimately the municipality sued the landowners, and then they mounted a variety of legal defenses. Some of these defenses were successful; but those that came before the Constitutional Court were not.

One of the landowners’ claims was that the statute under which the municipality claimed to act, section 10G(7) of the Transition Act, had in fact been repealed before the municipality tried to act under it over the course of several years. To determine whether section 10G(7) was or was not still on the books required an elaborate exercise in statutory interpretation, surely one that Parliament had not anticipated and that was the result of inartful choice of statutory terminology.

The first step in determining whether section 10G(7) remained in place in the relevant years was to consult another statute, the Local Government: Municipal Finance Management Act 56 of 2003 (the “Finance Act”), and specifically section 179 of this law. Section 179(1) declared the repeal of a list of statutes, a list that included section 10G of the Transition Act. This part of the Finance Act went into effect on July 2, 2005, and so it might seem to follow that from that date on section 10G(7) of the Transition Act was no more.

But section 179(2) said, explicitly, that despite section 179(1)’s repeal of section 10G, “the provisions contained in subsections (6), (6A) and (7) of section 10G remain in force until the legislation envisaged in section 229(2)(b) of the Constitution is enacted.” So Section 10G(7) was to remain in force, until this additional legislation was enacted.

Section 229(2)(b) of the Constitution in turn authorized Parliament to pass legislation regulating the power of municipalities “to impose rates on property” and other charges. Parliament in due course passed this legislation, a statute called the Local Government: Municipal Property Rates Act 6 of 2004, the “Rates Act” for short. (Are you still with me?)

With the enactment of the Rates Act, section 10G(7) ceased to be in force, by the express terms of section 179(2) of the Finance Act. Or did it? Section 88 of the Rates Act provided that property rates or taxes could continue to be conducted “in terms of legislation repealed by this Act," (that is, repealed by the Rates Act) until a new list of properties and their value (a “valuation roll”) was prepared.

So section 10G(7), which had been repealed, could still be applied! Or could it? Section 88 of the Rates Act only extended the life of “legislation repealed by this Act,” that is, again, by the Rates Act itself. But the Rates Act, which included specific reference to certain legislation that it repealed, did not include any statement that it was repealing section 10G(7). Rather, it was the Finance Act that declared that 10G(7) was repealed but would remain in force until the enactment of what turned out to be the Rates Act. So arguably the Rates Act did not repeal 10G(7); rather, the Rates Act’s enactment marked the date when the repeal of 10G(7) by the Finance Act became effective. (Are you still with me?) And if that was so, then the Rates Act provision for continued use of property rates systems it had repealed would not apply to 10G(7).

A majority of the Constitutional Court, in a judgment written by Acting Justice Mhlantla, found a way around this problem. It concluded that “the ordinary meaning of the phrase ‘repealed by this Act’ [the language of section 88 of the Rates Act] does not preclude the possibility of a broader construction as referring to legislation ‘repealed by the coming into effect of this Act’ or ‘repealed as a result of this Act.’” (¶ 38)

This was hardly free-wheeling interpretation. On the contrary, the Court emphasized the exact details of the wording. "Indeed," Acting Justice Mhlantla wrote, "had the phrase 'in terms of this Act' in fact been used by the Legislature, we may well be straining the text too far to suggest that there could be any other reasonable construction." (¶ 37)

Moreover, the Court argued that a contrary reading was out of kilter with these statutes' purpose, which broadly speaking was to ensure an orderly transition from apartheid-era tax systems to those of the democratic era. It seems quite appropriate for the Court to view these statutes as intertwined, a "unique legislative suite" (¶ 46), and read them as a coherent whole so as to avoid the potential “absurdity” of a different reading. (¶ 38)

There was a further oddity. The Finance Act, section 179(2) of which provided for the repeal of section 10G(7) on enactment of the legislation envisaged in section 229(b) of the Constitution, was evidently enacted in 2003. "Enactment" in South Africa means, at least according to the two dissenters here (and the majority does not express disagreement on the point), the date when the President “assents to and signs” a law after its approval by Parliament. (¶¶ 118-19 (dissenting judgment of Justice Jafta; ¶ 139 (dissenting judgment of Justice Khampepe). But section 179(2) of the Finance Act did not go into operation until July 2, 2005. (South African allows statutes to go into operation on a date subsequent to their enactment, and the Finance Act so provided (see ¶ 140 of the dissent by Justice Khampepe).) Meanwhile, the Rates Act, the statute envisaged by section 229 of the Constitution, was enacted on May 11, 2004.

So if, at the moment that section 179 went into effect in 2005, its provision for section 10G(7) to cease to be law with the enactment of the Rates Act immediately took effect retroactively to the date of the Rates Act's enactment a year earlier, and if (as the landowners argued) section 88 of the Rates Act did not operate to preserve section 10G(7) even so, then for a period of thirteen months there evidently would simply have been no legislation enabling municipalities to impose property taxes on rural land within their borders. (¶ 52 of the majority judgment of Acting Justice Mhantla) Oddest of all, while the Transition Act would on this theory have become inoperative, other legislation from the apartheid era that hadn’t yet been repealed would have remained in effect for a time, even though the point of this entire set of statutes was to effect a transition out of apartheid. (See ¶¶ 43 & 50) It’s really inconceivable that Parliament intended such a state of affairs.

So the majority’s interpretation – which did no more than utilize one possible meaning of the text rather than another possible meaning, so as to achieve a result vastly more consistent with the statutes’ purpose than the alternative would have produced – seems entirely legitimate. This much departure from strictest legalism is easily defended. Indeed, while the majority has avoided a particularly constraining textual reading, it seems fair to say that its interpretation is so well based in the rules of statutory interpretation that it is, after all, quite formalist itself.

Second, however, there is another formalism question in the same case.

Once it's determined that section 10G(7) provided the municipality with its authority to impose taxes, it might seem to follow that the municipality was obliged to use the procedures specified in section 10G(7) for the exercise of this power. To some extent, that's exactly what the municipality did.

But not entirely. The Finance Act also specified procedures for levying rates, and the Court said  (¶ 70) that "[t]here were instances ... where the Municipality only complied with the requirements of the Finance Act in the manner that it levied the rates." 

It's not clear to me, frankly, exactly how the Finance Act procedures come into play. If the Finance Act procedures were complementary to those of section 10G(7), the municipality might have been required to obey both, but the majority explicitly rejected this possibility. (¶ 73)

On the other hand, if the two sets of procedures – from the Finance Act and from section 10G(7) – were inconsistent, and if section 179 of the Finance Act meant that section 10G(7)’s substantive authority to levy rates remained in effect, it seems odd to me to conclude that another part of the Finance Act, apparently without saying so in so many words, overrode just the procedural part of section 10G(7).

But suppose that the Finance Act did have this effect. Then one can easily accept the Court's rationale for rejecting challenges based on the municipality's failure to use the section 10G(7) procedures: "the Municipality complied with the requirements of the Finance Act and, in any event, substantially complied with the objects of the requirements in section 10G(7)." (¶ 74)

But then the Court turns to another question of procedure. This question is whether the municipality complied with the requirements not of the Finance Act but of the Rates Act. If the Finance Act's procedures apply instead of section 10G(7)'s, one might think that the Rates Act's procedures similarly replace section 10G(7)'s, since I take it that both the Finance Act and the Rates Act were in force in the relevant period. (How any clashes between the Finance Act and the Rates Act might be resolved doesn't appear to be an issue in this case.)

But it turns out that the municipality definitely did not comply, over three financial (fiscal) years, with at least one requirement of the Rates Act - that its decision specifying the rates it would levy be printed in the "Provincial Gazette," an official record of government actions.

Should we care? The majority responded that this requirement of the Rates Act didn't apply, because section 10G(7) remained in effect. (¶ 77) I don't understand, however, why the Finance Act's requirements could override section 10G(7)'s, but the Rates Act requirements couldn't. (I admit I may be missing something here!)

But let’s assume for purposes of argument that the Rates Act requirement of publication in the Provincial Gazette did apply. The municipality argued that even though it had not actually published as required, it had placed notices in the newspaper and had undertaken a process of public participation, and so, it said, it “had complied substantially” with the publication requirement, since the actions it took gave notice to the public and elicited public participation. (¶ 146, dissenting opinion of Justice Khampepe) It may well be the case that the people subjected to these levies of rates (again, property taxes in U.S. parlance) were fully aware of, and had an ample opportunity to participate in the public consideration of, the decisions that the Bergrivier municipality made. The majority didn’t adopt this line of argument (since it considered the publication requirement inapplicable in the first place), but it did embrace the general idea that substantial compliance by a municipality with its statutory duties could suffice (¶ 26). Indeed, even Justice Khampepe, who focused on this publication requirement in her dissent, acknowledged that the “doctrine of substantial compliance … has its place.” (¶ 159) So the question would be whether the requirement of printing in the Gazette is one for which substantial compliance is possible.

Justice Khampepe said no, and I think there is force to her position. As she wrote, “[l]egislative acts depend for their legal efficacy on due promulgation. This is an incident of the rule of law that has long been part of South African jurisprudence.” (¶ 148) It is not hard to see the appeal of the proposition that people subject to laws must always be able to find them, without fail, in a particular place or publication.

Appealing as this proposition is, it isn’t absolute, even in the case of legislation, as Justice Khampepe acknowledged (¶ 158) Moreover, a lot of law is not legislation. The vast amounts of law made in court decisions, in South Africa as in the United States and many other countries, in fact can't be found fully in any one place, but can only be gleaned by more or less elaborate reading and interpretation of cases.

But if some law is hard to find, a lot of it is not. You're supposed to be able to find the laws enacted by Congress or Parliament, or (one might reasonably say) the laws adopted by lesser legislative bodies as well. Municipal decisions to impose property taxes, in particular, are legislation, under another Constitutional Court decision cited by Justice Khampepe (¶ 147)).

I’m inclined to say that if the publication requirement did apply (remember that the majority’s position is that the requirement just wasn’t applicable), then the failure to comply with it should have invalidated the municipality’s actions. To me, this thoroughly technical rule is part of the basic substructure for the system of laws. Once we know what the words of the adopted law are, we may want to interpret them freely, even quite a lot more freely than the Constitutional Court did in determining that section 10G(7) had not been inadvertently repealed by Parliament. But I think we need to know, as definitively as possible, what the words are in the first place. So when is formalism too much? I answer: sometimes, but not always.

And here’s one more reason why: This post is long. It’s taken me this long just to explain and briefly discuss the interpretive problems I wanted to illustrate. If you’ve read this far, I hope you’ve found the explanation reasonably clear. But it wouldn’t have been clear at all, not in the slightest, if we all didn’t take for granted a whole set of formal assumptions, such as that multiple statutes should be read with each other in mind, and that interpreters can’t simply pick the statutory language they like best or give the words they identify any meaning they choose. We couldn’t even talk about law of this sort – elaborated, systematized written legal rules and standards – if we weren’t all pretty formalist. The only real question is exactly how formalist to be.