n South African Journal on Human Rights - Freedom and constraint in constitutional adjudication




The question of freedom and constraint in adjudication is closely related to questions about the politics of law, the possibility of the rule of law, the responsibility of judges for their decisions, and the capability of lawyers to challenge deeply held assumptions and transform their own practices. This article begins to explore these issues by examining three different understandings of freedom and constraint. In the first, constraints are conceived metaphorically as physical objects, which constitute solid boundaries between lawful and unlawful conduct. The second view is Duncan Kennedy's conception of law as the exchange of contradictory argument-bites. The third metaphor is also derived from the work of Kennedy: that of law as the field of a judge's action. The article argues that, while the first two metaphors promote an understanding of freedom and constraint as mutually exclusive and of adjudication as something mechanical, the third metaphor enables a more sophisticated understanding of freedom and constraint as graded categories, and of the role of culture, persuasion and imagination in legal reasoning. However, the idea of legal rules as long, straight boundaries which predetermine the outcomes of cases, continues to exert a powerful hold on the South African legal imagination. It is argued that the Constitution requires legal interpreters to remain open to different interpretations, and to develop a more self-conscious style of adjudication which is characterised by a willingness to challenge deeply held assumptions and to articulate the moral and political beliefs through which their interpretations are filtered.


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