I think that humility promotes understanding, and so promotes wise judging. Some years back Brett Scharffs argued this point at length and with eloquence, in "The Role of Humility in Exercising Practical Wisdom," 32 U.C. Davis L. Rev. 127 (1998). But he acknowledges that "[o]ne might question whether, as a matter of historical or contemporaneous fact, the judges we consider great were or are humble." (At 171 n.108.) Later he discusses Justice Holmes, who on occasion was credited with a form of humility, but also (according to a scholar named Yosal Rogat) described "his work on the Court as 'preparing small diamonds for people of limited intellectual means.' In a humility contest, Rogat concluded, Holmes would 'tie for last with General DeGaulle.'" (At 185-86 n. 148, quoting Thomas C. Grey, "Unrepeatable Lessons," 70 N.Y. U. L. Rev. 524, 527 (1995).)
Scharffs rightly suggests that perhaps some judges we don't think of as humble actually were so, at least in their work as judges, and also that some judges who aren't humble no doubt are, in part for that very reason, not admirable judges. Still, he does not go so far as to reject the possibility that great judges typically are not humble people.
One might accept this possibility as fact, and still say that humility is an integral virtue for judging in general. The argument would be that most people are better judges if they bring humility to their work, even though great judges may have such stunning strengths in other respects that their lack of humility isn't a fatal flaw.
One might also say that "greatness" is itself a treacherous quality. Prideful greatness, after all, is essentially hubris, the pride that goeth before a tragic fall. Great judges are not necessarily the best judges for a country to have. They surely are prone to failing, as well as succeeding, greatly -- and while such stories make for great dramas, they probably aren't so good for the citizens living with the results.
But I think there is another possibility which may be more disturbing even than these. This is that it takes so much self-confidence to render decisions that determine other people's fate that for many people pride is simply essential to getting the job done. There are exceptions, undoubtedly -- apparently, as Scharffs also notes, Learned Hand was never sure of anything, though it is tempting to think that this self-doubt contributed to the "legendary temper" that he apparently also displayed. (Scharffs at 197 n.180, 195 n.176). But for most people, the thought of having ruled against someone -- taking that person's money, or liberty, or life -- in error may be very hard to take. (Scharffs points to Robert Cover's emphasis on the violence that is integral to the workings of the law; the anguish of decision may be even greater because of the recognition that litigants do not consent to their suffering, as patients may, but rather are coerced into enduring it.) Doctors have to develop a certain armor against their patients' suffering, as do lawyers, and so, similarly, may judges, and their armor may often be a confidence, a disproportionate confidence, that their decisions were right. If that is so, then although humility may be a great asset for wise decisionmaking, it may be crowded out by pride, a quality that may be a solace, if not a necessity, for any decisionmaking at all.
If pride is such a necessity, the best hope for those who see humility as also valuable is to make the case that people can possess both pride and humility at the same time. I doubt that that is easy, but I think it is possible. Scharffs' ideal of humility may be quite intensely selfless; he quotes C.S. Lewis, who wrote that "a really humble man" is someone who will take "a real interest in what you said to him. If you dislike him it will be because you feel a little envious of anyone who seems to enjoy life so easily. He will not be thinking about humility: he will be thinking about himself at all." (At 162 n.92, quoting C.S. Lewis, Mere Christianity 99 (1965))
But one can imagine people, and judges, whose ability to engage deeply with the perspectives of those before them is not quite so unselfconscious. A judge who takes pride is in his or her ability to listen and understand (and who in fact has and uses that ability) may not be quite so saintly as Lewis' ideal. But this judge is more likely in fact to exist, and we are very fortunate when we have him or her on the bench.
Saturday, January 23, 2010
Monday, January 18, 2010
Posner, emotions, and practical wisdom
Some years ago, Judge Posner wrote that "[s]elf-control is not only an emotion but a strong emotion because it is a check on strong emotions." (At page 324 of "Emotion versus Emotionalism in Law," a chapter in The Passions of Law (Susan A. Bandes ed. 1999). He seemed to say that "self-control" is needed in order to achieve "detachment."
Detachment is not a vantage point from which the judge is unemotional -- Posner believes "emotion is necessary to precipitate any decision that is not merely the conclusion of syllogistic or other purely formal reasonsing--the kind of reasoning a computer can do better than a human being. Decision is a form of action, and ... there is no action without emotion." (311) Rather, the detached judge is sufficiently distanced from the power of the emotional details of the situation immediately before him or her to be able to care also for those elsewhere, that is, for the long-term consequences of his or her decision. (Posner goes so far as to say that "contrary to the claims of its detractors, the economic approach to law is profoundly empathetic because, although it does not wear its heart on its sleeve, it brings into the decisional process the remote but cumulatively substantial interests of persons not before the court -- such as future seekers of rental housing, future victims of murderers, future taxpayers, and future consumers." (324))
I am not sure that Posner is right to call "self-control" an emotion, but I do agree that the desire to control oneself is an emotion. As a solution to the problem of the unfairness of (some of) the emotions people actually feel, however, self-control seems unreliable. The problem with it is that the person who must wrestle with himself for control already seems to have lost the battle. So much energy is going into the wrestling that the struggler already can't devote his or her full resources to the issue that calls for judgment. Equally obviously, the person struggling for control is prone to over-correction, and if aware of that, to further efforts to correct for it, all of which take the judge (or person) away from the full body of intuition and experience which is what he or she actually brings to the choices life, or adjudication, requires.
Thus what the judge needs is not so much the ability to control himself or herself, as the state of being in control. One might say, then, that the only way to be a good judge is ... to be, already, a good judge. There probably is some truth to this; it would be one reason (others have more to do with the play of power and career advancement in society) why judges often are older people, who have had the time to reach this state of self-control. But if practical wisdom is a form of expertise, as it seems to be, then like other expertises it can also be practiced, and studied, on the road to mastering it.
While I agree with Judge Posner that "self-control" is one of the virtues of a good judge, however, I think "detachment" may not be. The law and economics judge whom Posner praises is detached from the immediate anguish in front of her, but she is not detached from the desire to promote human wellbeing. She may indeed care deeply about this goal, and perhaps we might call this a "passion for justice." Samuel Pillsbury, in "Harlan, Holmes, and the Passions of Justice," another essay in The Passions of Law, characterizes Justice Holmes as having had this sort of Olympian, detached, passion for justice. (348-49) Pillsbury agrees as well that Justice Holmes may have been too detached from the concrete human details of the cases before him. (352) Pillsbury believes that we need a variety of passions for justice on the courts (351-52), and this is no doubt true. But it is also true that a detachment that puts aside concrete people in favor of abstract human aspirations is, in some measure, an incomplete response to human experience.
Posner may not be arguing for that measure of detachment -- his point may be that the natural response to a concrete situation is to be so gripped by those particulars as to lose broader perspective, so that what is needed is that measure of detachment that enables the judge to see both the specific and the broad. That seems like the right goal, and it also seems like an appropriate way to characaterize the aim of "practical wisdom."
Detachment is not a vantage point from which the judge is unemotional -- Posner believes "emotion is necessary to precipitate any decision that is not merely the conclusion of syllogistic or other purely formal reasonsing--the kind of reasoning a computer can do better than a human being. Decision is a form of action, and ... there is no action without emotion." (311) Rather, the detached judge is sufficiently distanced from the power of the emotional details of the situation immediately before him or her to be able to care also for those elsewhere, that is, for the long-term consequences of his or her decision. (Posner goes so far as to say that "contrary to the claims of its detractors, the economic approach to law is profoundly empathetic because, although it does not wear its heart on its sleeve, it brings into the decisional process the remote but cumulatively substantial interests of persons not before the court -- such as future seekers of rental housing, future victims of murderers, future taxpayers, and future consumers." (324))
I am not sure that Posner is right to call "self-control" an emotion, but I do agree that the desire to control oneself is an emotion. As a solution to the problem of the unfairness of (some of) the emotions people actually feel, however, self-control seems unreliable. The problem with it is that the person who must wrestle with himself for control already seems to have lost the battle. So much energy is going into the wrestling that the struggler already can't devote his or her full resources to the issue that calls for judgment. Equally obviously, the person struggling for control is prone to over-correction, and if aware of that, to further efforts to correct for it, all of which take the judge (or person) away from the full body of intuition and experience which is what he or she actually brings to the choices life, or adjudication, requires.
Thus what the judge needs is not so much the ability to control himself or herself, as the state of being in control. One might say, then, that the only way to be a good judge is ... to be, already, a good judge. There probably is some truth to this; it would be one reason (others have more to do with the play of power and career advancement in society) why judges often are older people, who have had the time to reach this state of self-control. But if practical wisdom is a form of expertise, as it seems to be, then like other expertises it can also be practiced, and studied, on the road to mastering it.
While I agree with Judge Posner that "self-control" is one of the virtues of a good judge, however, I think "detachment" may not be. The law and economics judge whom Posner praises is detached from the immediate anguish in front of her, but she is not detached from the desire to promote human wellbeing. She may indeed care deeply about this goal, and perhaps we might call this a "passion for justice." Samuel Pillsbury, in "Harlan, Holmes, and the Passions of Justice," another essay in The Passions of Law, characterizes Justice Holmes as having had this sort of Olympian, detached, passion for justice. (348-49) Pillsbury agrees as well that Justice Holmes may have been too detached from the concrete human details of the cases before him. (352) Pillsbury believes that we need a variety of passions for justice on the courts (351-52), and this is no doubt true. But it is also true that a detachment that puts aside concrete people in favor of abstract human aspirations is, in some measure, an incomplete response to human experience.
Posner may not be arguing for that measure of detachment -- his point may be that the natural response to a concrete situation is to be so gripped by those particulars as to lose broader perspective, so that what is needed is that measure of detachment that enables the judge to see both the specific and the broad. That seems like the right goal, and it also seems like an appropriate way to characaterize the aim of "practical wisdom."
Sunday, January 17, 2010
On fairness in judging
Here are two propositions: First, we want our judges to act without fear or favor, without prejudice for or against any party. Second, everyone is prejudiced, in some measure. How do these two propositions fit together?
One could argue, of course, that the second proposition is wrong -- that some people are truly without prejudice, and those are the ones we try to select as judges. There certainly are people without one form of prejudice or another. There may be many Jews and non-Jews, for instance, who really are entirely unmoved by whether a particular person whom they encounter or judge is, or is not, Jewish. But even these tolerant, or secular, people may not be unprejudiced about some religions. As a general proposition, everyone's tolerance has limits. And there is depressing evidence that vast proportions of Americans have enough racial prejudice in them that they instinctively stereotype quickly-displayed photos; their next reaction may be to try to blot out this instinctive leap, but their first reaction is shaped by the powerful social stereotypes of their world. (See Malcolm Gladwell's account, in his book Blink: The Power of Thinking Without Thinking (2005), of the "Implicit Association Test.") How could it be otherwise?
So if we say that we want judges without prejudice, we are asking, in general, for the impossible.
Can we say, instead, that we want judges who will judge without prejudice -- that is, who will be able to put aside their prejudices and judge without being influenced by them?
Well, yes, to some extent. We can certainly set up situations where judges are less likely to be influenced by their prejudices than they would be in other contexts. Perhaps the classic example is the practice in today's orchestras of doing tryouts with the candidate performers behind screens, so that the judges do not know the candidates' names, or even -- and in particular -- their gender (or race). If the judges imagine that only women, for instance, can play instruments at the level required for a great orchestra, they will be simply unable to bring this prejudice to bear. Perhaps they will even shed this prejudice when they encounter the results of the blind auditions. Back in the world of courts, the elaborate efforts that we make in the rules of procedure and evidence to insure that judges really do hear both sides are all efforts to avoid at least one natural result of prejudice, the tendency to believe at once the people with whom you already sympathize. (These rules also combat another, less "political" form of prejudice -- the tendency to believe the person you hear first.)
That's good. But a court of law is not like a blind orchestra audition, nor should it be. Judges (and jurors) are engaged in judging people, and they can and should take what they know about people into account as they do so. The moment they do, however, they take into account not only what they truly know but what they deeply, even unconsciously, believe. In short, they take into account their prejudices.
So, what to do? More in a future post.
One could argue, of course, that the second proposition is wrong -- that some people are truly without prejudice, and those are the ones we try to select as judges. There certainly are people without one form of prejudice or another. There may be many Jews and non-Jews, for instance, who really are entirely unmoved by whether a particular person whom they encounter or judge is, or is not, Jewish. But even these tolerant, or secular, people may not be unprejudiced about some religions. As a general proposition, everyone's tolerance has limits. And there is depressing evidence that vast proportions of Americans have enough racial prejudice in them that they instinctively stereotype quickly-displayed photos; their next reaction may be to try to blot out this instinctive leap, but their first reaction is shaped by the powerful social stereotypes of their world. (See Malcolm Gladwell's account, in his book Blink: The Power of Thinking Without Thinking (2005), of the "Implicit Association Test.") How could it be otherwise?
So if we say that we want judges without prejudice, we are asking, in general, for the impossible.
Can we say, instead, that we want judges who will judge without prejudice -- that is, who will be able to put aside their prejudices and judge without being influenced by them?
Well, yes, to some extent. We can certainly set up situations where judges are less likely to be influenced by their prejudices than they would be in other contexts. Perhaps the classic example is the practice in today's orchestras of doing tryouts with the candidate performers behind screens, so that the judges do not know the candidates' names, or even -- and in particular -- their gender (or race). If the judges imagine that only women, for instance, can play instruments at the level required for a great orchestra, they will be simply unable to bring this prejudice to bear. Perhaps they will even shed this prejudice when they encounter the results of the blind auditions. Back in the world of courts, the elaborate efforts that we make in the rules of procedure and evidence to insure that judges really do hear both sides are all efforts to avoid at least one natural result of prejudice, the tendency to believe at once the people with whom you already sympathize. (These rules also combat another, less "political" form of prejudice -- the tendency to believe the person you hear first.)
That's good. But a court of law is not like a blind orchestra audition, nor should it be. Judges (and jurors) are engaged in judging people, and they can and should take what they know about people into account as they do so. The moment they do, however, they take into account not only what they truly know but what they deeply, even unconsciously, believe. In short, they take into account their prejudices.
So, what to do? More in a future post.
Saturday, January 16, 2010
Who's really an enemy combatant, and how do we know?
This is the first of what may be several comments I'll be posting on this topic. What's struck me is this: of the Guantanamo detainees whose habeas corpus cases have been completed, quite a few have been successful in demonstrating to the courts' satisfaction that the government has not shown a basis for holding them. This record certainly raises the possibility that we have been holding men without justification for many years. For now I just want to raise one other possibility: that the standards of evidence being applied in these habeas cases, though they are by no means as rigorous as those that would be applied in an actual criminal prosecution, are still just too demanding for this situation. If, in Afghanistan, our forces capture suspects based on information, often second-hand information, communicated by people of dubious reliability, they certainly aren't operating by the standards we demand for police work here at home. But this isn't police work, and it's not home -- and so it may be that the lesson of the habeas cases so far is that this particular effort to infuse judicial standards into the operation of a war is just not tenable. Or, again, it may be that we have been holding people for no good reason for a very long time.
Monday, January 4, 2010
Airplane security and the Christmas bombing attempt
Just back from a plane trip out of the country. Our flight featured two unusual security steps that were visible: every passenger was patted down just before boarding, and no one could bring anything to drink onto the plane, even bottles of water purchased inside security. The first was quick and seemed worth the time. The second seemed arbitrary, and was certainly uncomfortable, since it took two hours for water to reach our row on the plane!
Perhaps what's most striking about the current increase in security is how incomplete our ability to connect the dots evidently is. The information we had about the Nigerian would-be bomber seems, in hindsight, so obviously frightening that our not reacting to it with quick action is hard to understand -- unless, of course, we receive so many worrying bits of information each day that reacting to all the possibly dramatic link-ups would be impossible. Whether the problem was bureaucratic fumbling or information overload, however, it's clear that we don't believe that we can identify all our assailants in advance. It's because we don't believe we can do this that we impose on ourselves the massive inconveniences of airport security.
Of course, it could be that our connect-the-dots security measures are very, very good -- but we have to supplement them with airport security measures because a single failure would be catastrophic. I hope that is the case, but it doesn't feel like it is. Witness the decision to subject everyone from Nigeria to heightened search. Obviously this step is tremendously, deliberately, overinclusive. The week's news suggests that our reason for taking it is that we can't get a clear idea of which Nigerians are actually threats even when we have specific information about an individual named Nigerian. Profiling is never a welcome step, but if we really are as in the dark as this event suggests, then we need something to shed some light on what we face.
Perhaps what's most striking about the current increase in security is how incomplete our ability to connect the dots evidently is. The information we had about the Nigerian would-be bomber seems, in hindsight, so obviously frightening that our not reacting to it with quick action is hard to understand -- unless, of course, we receive so many worrying bits of information each day that reacting to all the possibly dramatic link-ups would be impossible. Whether the problem was bureaucratic fumbling or information overload, however, it's clear that we don't believe that we can identify all our assailants in advance. It's because we don't believe we can do this that we impose on ourselves the massive inconveniences of airport security.
Of course, it could be that our connect-the-dots security measures are very, very good -- but we have to supplement them with airport security measures because a single failure would be catastrophic. I hope that is the case, but it doesn't feel like it is. Witness the decision to subject everyone from Nigeria to heightened search. Obviously this step is tremendously, deliberately, overinclusive. The week's news suggests that our reason for taking it is that we can't get a clear idea of which Nigerians are actually threats even when we have specific information about an individual named Nigerian. Profiling is never a welcome step, but if we really are as in the dark as this event suggests, then we need something to shed some light on what we face.
Thursday, December 17, 2009
How to study lawyer-client meetings: from video recordings without sound?
A thought about how empirical research on lawyer-client meetings might be conducted, given that permitting a third party to be part of such a meeting risks stripping it of the lawyer-client privilege: What if these meetings were video recorded, but with no sound?
It might seem that studying a meeting without knowing what the participants are saying would be meaningless, but that isn't right. One can tell quite a lot about what's going on in an interaction without knowing any of the words being uttered. It's possible to follow the participants' body language and facial expressions; it's possible to see who interrupts whom and with what frequency; it's possible to see who speaks, and for how long at a time -- and probably more. Malcolm Gladwell, in Blink: The Power of Thinking Without Thinking (2005), reports a study finding that "[a] person watching a silent two-second video clip of a teacher he or she has never met will reach conclusions about how good that teacher is that are very similar to those of a student who has sat in the teacher's class for an entire semester." (13)
So these studies would be meaningful. Would turning the sound off do anything to preserve the attorney-client privilege? I'm not sure, but I think it would be worth looking into. It is true that a blown-up shot from the video might reveal legible words in documents the lawyer and client are looking at (as an indiscreet British spymaster recently found, at the cost of his job). It's also true that a lip-reader could probably make out what the lawyer and client are saying to each other. But every communication is subject to being intercepted, and in general we don't require lawyers and clients to take extraordinary steps against this danger in order to preserve the legal privilege protecting their conversation. So it seems to me that an argument could be made that this kind of recording (especially if done without an actual camera operator able to listen in) is consistent with lawyer-client privilege.
Probably most lawyer-client conversations, however, are not really all that sensitive; the client is not revealing dark secrets, nor is the adversary going to go to court to extract them. For the bulk of conversations, the most important effect of proposing to record with the sound off might be simply to reassure the client that his or her privacy really is being respected. That could make it easier for them to consent to the recording. So for reasons of both objective legal risk and subjective perception of privacy, the no-sound recording might be a relatively unobjectionable method of study.
Whether the reason lawyer-client meetings have been so rarely subjected to empirical study is either the problem of legal privilege, or clients' emotional sensitivity, isn't clear. Perhaps lawyers and law professors, even clinicians, just aren't very much disposed to undertake this sort of research -- for reasons that would no doubt be worth discussing in themselves. But if the reason isn't the researchers' disinclination but the reluctance of those being researched, then the no-sound recording might be a partial solution to the problem.
It might seem that studying a meeting without knowing what the participants are saying would be meaningless, but that isn't right. One can tell quite a lot about what's going on in an interaction without knowing any of the words being uttered. It's possible to follow the participants' body language and facial expressions; it's possible to see who interrupts whom and with what frequency; it's possible to see who speaks, and for how long at a time -- and probably more. Malcolm Gladwell, in Blink: The Power of Thinking Without Thinking (2005), reports a study finding that "[a] person watching a silent two-second video clip of a teacher he or she has never met will reach conclusions about how good that teacher is that are very similar to those of a student who has sat in the teacher's class for an entire semester." (13)
So these studies would be meaningful. Would turning the sound off do anything to preserve the attorney-client privilege? I'm not sure, but I think it would be worth looking into. It is true that a blown-up shot from the video might reveal legible words in documents the lawyer and client are looking at (as an indiscreet British spymaster recently found, at the cost of his job). It's also true that a lip-reader could probably make out what the lawyer and client are saying to each other. But every communication is subject to being intercepted, and in general we don't require lawyers and clients to take extraordinary steps against this danger in order to preserve the legal privilege protecting their conversation. So it seems to me that an argument could be made that this kind of recording (especially if done without an actual camera operator able to listen in) is consistent with lawyer-client privilege.
Probably most lawyer-client conversations, however, are not really all that sensitive; the client is not revealing dark secrets, nor is the adversary going to go to court to extract them. For the bulk of conversations, the most important effect of proposing to record with the sound off might be simply to reassure the client that his or her privacy really is being respected. That could make it easier for them to consent to the recording. So for reasons of both objective legal risk and subjective perception of privacy, the no-sound recording might be a relatively unobjectionable method of study.
Whether the reason lawyer-client meetings have been so rarely subjected to empirical study is either the problem of legal privilege, or clients' emotional sensitivity, isn't clear. Perhaps lawyers and law professors, even clinicians, just aren't very much disposed to undertake this sort of research -- for reasons that would no doubt be worth discussing in themselves. But if the reason isn't the researchers' disinclination but the reluctance of those being researched, then the no-sound recording might be a partial solution to the problem.
Sunday, December 13, 2009
Objective invalidity revisited
The doctrine of objective constitutional invalidity says that when the Constitutional Court declares a law unconstitutional, what that decision means is that the law has always been unconstitutional since the adoption of the constitution in 1996. I blogged about this doctrine on June 11, 2009 and said that this doctrine could not survive the day -- not yet arrived -- when the Constitutional Court overrules one of its own earlier decisions. Even now, however, it produces practical complications, as the Court has recognized for years. In response, as Justice Van der Westhuized said for the Constitutional Court in Weare and Another v Ndebele NO and Others (CCT 15/08, decided 18 November 2008), "[t]he duty to give just and equitable relief recognises that the position dictated by the objective doctrine may not always be a feasible one in practice" (para 42).
Weare addressed the question of whether it was unconstitutional for one province, KwaZulu-Natal, to bar bookmaking by corporate entities, while it permitted bookmaking by individuals and partnerships and while the rest of South Africa permitted corporate entities to practice in this area. The answer, the Court held, was "no," a decision I agree with. Not every difference is an unconstitutional discrimination.
But the case also presented a wonderful technical complication. The KwaZulu-Natal law in question was actually an "Ordinance," first adopted by the "provincial council" of what was then Natal, in 1957. A lower court had declared the Ordinance unconstitutional. But if the Ordinance was a "provincial Act," then under section 167(5) of the Constitution that judgment would be without effect unless the Constitutional Court confirmed it. Now an "Act," it appears, is a piece of original legislation, such as a provincial legislature today would enact. The old "provincial council" would have been the 1957 equivalent of such a legislature -- so far, so good. But in 1986 (still in the apartheid era), Parliament "abolished the provincial councils and transferred their legislative authority to the provincial administrators, who were members of the executive." (para 26) When they acted, by Proclamation rather than "legislation," they were making "delegated legislation" (rules, we might say in the U.S.) rather than "original legislation" (statutes). In fact the Natal administrators did modify the statute of which the no-gambling-by-corporate-entities provision was a part, nine times (though they may not have touched this particular provision). (para 27)
That might have made a big difference to the question of whether the Constitutional Court had to review the lower court's decision to invalidate this section. A piece of delegated legislation lacks the status of being an Act, and under the post-apartheid constitution lower courts can invalidate delegated legislation without the need for the Constitutional Court to confirm their decisions. The constitution's theory for this rule presumably is that invalidating a regulation is not a disagreement with the elected representatives of the people, while invalidating an "Act" is.
But this wasn't the end of the story. Then apartheid ended, and the Ordinances of the old order were carried over to the new era, and the provinces (such as what was now named KwaZulu-Natal), with their provincial Parliaments, acquired original lawmaking authority again. In fact, the KwaZulu-Natal provincial legislature then passed legislation in this field, incorporating the old Ordinance by reference and thus continuing it in effect (para 33), and also amended the Ordinance three times, though not touching the particular provision that this case challenged.
So the upshot was that it was not clear whether an old order Ordinance which, like this one, had once been produced as an act of original provincial legislation, then became the purview of provincial administrators making delegated legislation, then became again the subject of original provincial legislation -- was or was not a "provincial Act." The Constitutional Court decided that it was, an entirely reasonable decision.
But this ruling automatically meant, by virtue of the doctrine of objective invalidity, that any other similar Ordinance that might have been held unconstitutional by a lower court since 1996 without the Constitutional Court's having reviewed and approved the decision had not been validly invalidated! Apparently no Ordinance invalidation case had been brought to the Constitutional Court prior to this one, and so it is possible that there are a number of these invalidly invalidated laws. Moreover, the Constitutional Court's rules provide time limits for litigants seeking confimation of a lower court judgment of invalidity, and those time limits "will almost certainly have expired" by now. (para 41)
What to do? Here is whether the Constitutional Court's authority under section 172(1)(b) of the Constitution -- its "duty," as Van der Westhuizen J refers to it in para 42 -- to "make any order that is just and equitable" in connection with a decision on a constitutional matter comes in. The Court notes that "[c]itizens and the state alike may have treated the orders as binding, it may now be years since the orders were made, and the ordinances might have become irrelevant. New legislation may have replaced them." (para 44) Van der Westhuizen J concludes: "In light of these considerations, no general rule is made as to court orders in connection with the constitutional validity of ordinances that have not been confirmed by this Court. Should the special circumstances of a specific case mean that any injustice or uncertainty does result, parties are of course free to approach this Court or the High Court to seek relief." (para 45)
This was certainly a wise decision. But it is worth noting that it was a decision that would have been unnecessary but for the doctrine of objective invalidity. Absent that doctrine, the earlier decisions would have remained good law, since they were court judgments that were never appealed and so had long since become final. It was only because the doctrine of objective invalidity meant that a decision in 2008 automatically ran back, unqualifiedly, to 1996 that any question about those decisions between 1996 and 2008 arose. This is a case, then, in which a legal theory generated quite unnecessary practical complications.
It's also a striking illustration of two very different aspects of South African jurisprudence. The question of whether an Ordinance is an "Act" is a matter resolved by quite painstaking attention to legal detail. Once that is decided, the resulting question of what to do about the implications of the doctrine of objective invalidity is decided by broad, pragmatic adjustment. The courts have the authority to operate in both ways.
In general, it seems to me that the courts' ability to render principled constitutional decisions and then guide their implementation by practical adjustment is very helpful and appropriate, and has been used to very good effect in South Africa. In most cases, moreover, the kind of reasoning at issue in these two stages of adjudication probably is broadly similar: the judgment of unconstitutionality rests on broad constitutional weighing and the implementation decision takes comparably broad considerations into account. But occasionally, as here, the judgment of unconstitutionality involved quite technical analysis -- and over time there will surely be many relatively technical constitutional questions, given how long and detailed South Africa's constitution is. (For another example, see Kruger v President of the Republic of South Africa (CCT 57/07, decided 2 October 2008.)
I wonder just how wide the gap between the technical analysis of such issues and the practical implementation judgments that follow should be. In principle, I think it might be desirable for South African jurisprudence to evolve so that these two forms of reasoning converge: the technical legal analysis becomes more infused with practical considerations, and the pragmatic adjustments become more regulated by legal rules. There is, I think, some inconsistency in applying technical precision to the determination of the rights and wrongs of the parties before the court, including Presidents and Parliaments, while the courts themselves effectuate their decisions by practical adjustments to the necessities of events. The inconsistency, moreover, is not simply a technical disparity, but may instead have broader significance: in principle, all actors should be subject to similar legal requirements via rules that provide similar degrees of formal precision and functional flexibility. This isn't an absolute or a precise principle, but it seems fair to say that it is a part of the basic idea of the rule of law.
It is not shocking that current South African law reflects such a disparity. South Africa's courts have been engaged in constitutional adjudication for only about 15 years, and they wield broad authority over a tremendous range of controversial issues. They are, it seems to me, still in the process of determining just how to wield their own power. So this post is a suggestion for a direction this process might take in cases to come.
Weare addressed the question of whether it was unconstitutional for one province, KwaZulu-Natal, to bar bookmaking by corporate entities, while it permitted bookmaking by individuals and partnerships and while the rest of South Africa permitted corporate entities to practice in this area. The answer, the Court held, was "no," a decision I agree with. Not every difference is an unconstitutional discrimination.
But the case also presented a wonderful technical complication. The KwaZulu-Natal law in question was actually an "Ordinance," first adopted by the "provincial council" of what was then Natal, in 1957. A lower court had declared the Ordinance unconstitutional. But if the Ordinance was a "provincial Act," then under section 167(5) of the Constitution that judgment would be without effect unless the Constitutional Court confirmed it. Now an "Act," it appears, is a piece of original legislation, such as a provincial legislature today would enact. The old "provincial council" would have been the 1957 equivalent of such a legislature -- so far, so good. But in 1986 (still in the apartheid era), Parliament "abolished the provincial councils and transferred their legislative authority to the provincial administrators, who were members of the executive." (para 26) When they acted, by Proclamation rather than "legislation," they were making "delegated legislation" (rules, we might say in the U.S.) rather than "original legislation" (statutes). In fact the Natal administrators did modify the statute of which the no-gambling-by-corporate-entities provision was a part, nine times (though they may not have touched this particular provision). (para 27)
That might have made a big difference to the question of whether the Constitutional Court had to review the lower court's decision to invalidate this section. A piece of delegated legislation lacks the status of being an Act, and under the post-apartheid constitution lower courts can invalidate delegated legislation without the need for the Constitutional Court to confirm their decisions. The constitution's theory for this rule presumably is that invalidating a regulation is not a disagreement with the elected representatives of the people, while invalidating an "Act" is.
But this wasn't the end of the story. Then apartheid ended, and the Ordinances of the old order were carried over to the new era, and the provinces (such as what was now named KwaZulu-Natal), with their provincial Parliaments, acquired original lawmaking authority again. In fact, the KwaZulu-Natal provincial legislature then passed legislation in this field, incorporating the old Ordinance by reference and thus continuing it in effect (para 33), and also amended the Ordinance three times, though not touching the particular provision that this case challenged.
So the upshot was that it was not clear whether an old order Ordinance which, like this one, had once been produced as an act of original provincial legislation, then became the purview of provincial administrators making delegated legislation, then became again the subject of original provincial legislation -- was or was not a "provincial Act." The Constitutional Court decided that it was, an entirely reasonable decision.
But this ruling automatically meant, by virtue of the doctrine of objective invalidity, that any other similar Ordinance that might have been held unconstitutional by a lower court since 1996 without the Constitutional Court's having reviewed and approved the decision had not been validly invalidated! Apparently no Ordinance invalidation case had been brought to the Constitutional Court prior to this one, and so it is possible that there are a number of these invalidly invalidated laws. Moreover, the Constitutional Court's rules provide time limits for litigants seeking confimation of a lower court judgment of invalidity, and those time limits "will almost certainly have expired" by now. (para 41)
What to do? Here is whether the Constitutional Court's authority under section 172(1)(b) of the Constitution -- its "duty," as Van der Westhuizen J refers to it in para 42 -- to "make any order that is just and equitable" in connection with a decision on a constitutional matter comes in. The Court notes that "[c]itizens and the state alike may have treated the orders as binding, it may now be years since the orders were made, and the ordinances might have become irrelevant. New legislation may have replaced them." (para 44) Van der Westhuizen J concludes: "In light of these considerations, no general rule is made as to court orders in connection with the constitutional validity of ordinances that have not been confirmed by this Court. Should the special circumstances of a specific case mean that any injustice or uncertainty does result, parties are of course free to approach this Court or the High Court to seek relief." (para 45)
This was certainly a wise decision. But it is worth noting that it was a decision that would have been unnecessary but for the doctrine of objective invalidity. Absent that doctrine, the earlier decisions would have remained good law, since they were court judgments that were never appealed and so had long since become final. It was only because the doctrine of objective invalidity meant that a decision in 2008 automatically ran back, unqualifiedly, to 1996 that any question about those decisions between 1996 and 2008 arose. This is a case, then, in which a legal theory generated quite unnecessary practical complications.
It's also a striking illustration of two very different aspects of South African jurisprudence. The question of whether an Ordinance is an "Act" is a matter resolved by quite painstaking attention to legal detail. Once that is decided, the resulting question of what to do about the implications of the doctrine of objective invalidity is decided by broad, pragmatic adjustment. The courts have the authority to operate in both ways.
In general, it seems to me that the courts' ability to render principled constitutional decisions and then guide their implementation by practical adjustment is very helpful and appropriate, and has been used to very good effect in South Africa. In most cases, moreover, the kind of reasoning at issue in these two stages of adjudication probably is broadly similar: the judgment of unconstitutionality rests on broad constitutional weighing and the implementation decision takes comparably broad considerations into account. But occasionally, as here, the judgment of unconstitutionality involved quite technical analysis -- and over time there will surely be many relatively technical constitutional questions, given how long and detailed South Africa's constitution is. (For another example, see Kruger v President of the Republic of South Africa (CCT 57/07, decided 2 October 2008.)
I wonder just how wide the gap between the technical analysis of such issues and the practical implementation judgments that follow should be. In principle, I think it might be desirable for South African jurisprudence to evolve so that these two forms of reasoning converge: the technical legal analysis becomes more infused with practical considerations, and the pragmatic adjustments become more regulated by legal rules. There is, I think, some inconsistency in applying technical precision to the determination of the rights and wrongs of the parties before the court, including Presidents and Parliaments, while the courts themselves effectuate their decisions by practical adjustments to the necessities of events. The inconsistency, moreover, is not simply a technical disparity, but may instead have broader significance: in principle, all actors should be subject to similar legal requirements via rules that provide similar degrees of formal precision and functional flexibility. This isn't an absolute or a precise principle, but it seems fair to say that it is a part of the basic idea of the rule of law.
It is not shocking that current South African law reflects such a disparity. South Africa's courts have been engaged in constitutional adjudication for only about 15 years, and they wield broad authority over a tremendous range of controversial issues. They are, it seems to me, still in the process of determining just how to wield their own power. So this post is a suggestion for a direction this process might take in cases to come.
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