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- Volume 24, Issue 2, 2013
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 24, Issue 2, 2013
Volume 24, Issue 2, 2013
Intellectuals and democracy : Frank I Michelman's imagination and South Africa's constitutional jurisprudence : prefaceSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 239 –240 (2013)More Less
Every good idea begins somewhere. (Sometimes it begins in many places at the same time - such confluence being the hallmark of cogent currents of contemporary thought.) The symposium that gave rise to this festschrift for Frank Michelman took its cue from a symposium held at Harvard Law School earlier in 2012 to acknowledge his astonishing career. Professor Drucilla Cornell recognised early on that many South African legal scholars and jurists who might have wanted to attend the symposium would be unable to do so. She suggested that we might hold a similar symposium here in South Africa and threw her considerable weight behind the endeavour. Of course, no symposium would have been possible had Professor Michelman himself not been willing to undertake the journey to this home away from home.
Author Kate O'ReganSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 241 –244 (2013)More Less
On 23 January 1995, as a newly appointed Constitutional Court judge, I, together with several of my new colleagues, attended a seminar on the Bill of Rights organised by the Centre for Applied Legal Studies at which Professor Frank Michelman gave the opening address. Re-reading that address in 2013 makes plain how prescient, thoughtful and deeply courteous Professor Michelman was in his opening contribution to the South African "constitutional conversation". That prescience, thoughtfulness and courtesy have characterised Professor Michelman's contributions to the South African constitutional conversation ever since. Again and again, Professor Michelman has identified the most troubling issues in our constitutional project, and again and again, analysed the issues clearly and calmly and shed light on what at times have seemed intractably difficult questions.
Author Frank I. MichelmanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 245 –263 (2013)More Less
The Constitution of the Republic of South Africa, 1996 ("the Constitution") calls upon courts for a continuing audit of the common law to bring and keep it in harmony with the socially transformative aims of the Constitution. It seems that the common law can sometimes exert in return its own conservative impulse - its own "gravity" - inducing a reluctance of lawyers and judges to detect major deviations from constitutional aims and values in established common-law doctrines.
The common law's gravity may take the "magnet" form of a presumed propensity in the common law to point toward just and fit solutions to various kinds of social conflicts. It may also take the "system" form of caution against meddling with isolated working parts of a complex, integrated mechanism that is believed, as a whole and on the whole, to have served society reasonably well. Somewhat less familiarly, the gravity of the common law may also take a "baseline" form, in which common-rules and regimes are taken to provide a basis of expectation against which to measure the fairness of governmental action. An example is provided by a recent judgment of the Supreme Court of Appeal, denying a claim of unconstitutional expropriation by a statutory revision of the law governing mineral rights.
It is right to be on guard lest the gravities of the common law exert a force in judicial decision-making that is out of keeping with the Constitution's transformative purposes. Still, a recent decision of the Constitutional Court, declining an invitation to develop the common law in a direction favourable to the security of the tenures of residential lessees (while also finding a statutory ground for a decision in the tenant's favour) shows why it can be difficult for observers to say whether common-law gravity has been an influential factor in a given case.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 264 –280 (2013)More Less
In this article the authors consider a central characteristic of Frank Michelman's body of scholarship: his tendency to develop his ideas from an unexpected or non-obvious angle - in short, his tendency to think, reflect and work in a counterintuitive fashion. They show how, for example, he habitually advances positions intuitively foreign to the liberal tradition (for example recognition of constitutional welfare rights; a conception of property as a mechanism to fight poverty) from within that tradition. They ask whether there is a difference between being reflective/counterintuitive and being reflexive - does Michelman through his counterintuitive approach reflect on the liberal tradition with pragmatist, strategic concerns or does his counter-intuition show signs of reflexivity, of problematising liberalism at its roots?
They then link Michelman's counter-intuition to Hannah Arendt's understanding of judgment and "common sense". For Arendt common sense entails not an instinctive, unreflective response - instead, in the tradition of Kantian aesthetic judgment common sense entails an enlarged mentality that could engage plurality and worldliness. The authors, on one reading see this enlarged mentality at work in Michelman's counterintuitive approach.
The authors conclude by making tentative comments on the Constitutional Court's decision in Albutt v Centre for the Study of Violence and Reconciliation 2010 3 SA 293 (CC), attempting to give a counterintuitive/reflective reading to the majority judgment's emphasis on rationality that they hope stands in, if not the substance then at least the form of Frank Michelman's counterintuitive tradition. Drawing on Michelman's notion of "jurisgenerative politics" they aim to disclose other responses to and consequences of the judgment than those that appear at first glance.
Humility, Michelman's method and the Constitutional Court : rereading the First Certification Judgment and reaffirming a distinction between law and politicsAuthor Stu WoolmanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 281 –311 (2013)More Less
The article has pressed a deceptively simple brace of propositions. First, the spirit in which both Professor Michelman and the Constitutional Court proceed with their work - academic, collegial, professional - is imbued with a remarkable humility. That humility cashes out in the ensuing manner. Neither Professor Michelman nor the Constitutional Court set out to impose a deep, substantive vision of a just political order on others. Instead, they attempt, in their overlapping spheres of justice, to create a strong, rational foundation for political mobilisation and rigorous academic analysis by other actors who operate within their closely related domains of influence and power. Second, this humility underwrites the contention that a meaningful distinction between law and politics can be maintained: even if no hard and fast lines can ever be drawn given the derivative and multi-sourced nature of the law. Again: the proposition on offer here is that the Constitutional Court's unique approach to its role (and the manner in which it functions) is one grounded in the virtue of humility. While that proposition may provoke some, it's worth noting that legal theorists and political philosophers who differ substantially on the form a just social order ought to take - from Joseph Raz to Michael Walzer to Tony Judt - can still agree that de minimus Lockean-like views about law are one thing, and a fully fleshed out theory of distributive justice are quite another.
Law qua humility thus sets for itself modest aims.
It seeks to maintain a baseline of acceptable standards - that the same general laws apply to the governors and governed alike - even as it encourages other branches of government and various private actors to meaningfully engage one another over the content of our most fundamental normative commitments. If you can hold law and politics apart, in the dynamic tension suggested in these pages, and, simultaneously, can recognise that a Constitutional Court might wish to subordinate the particular views of its eleven members to the stances taken by a multitude of parties, politicians, citizens and the various subpublics that appear before the Court, then law qua humility might have some purchase. Ex Parte Chairperson of the Constitutional Assembly in re Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC) and later cases provide some evidence for the proposition that Michelmanian methodological principles - humility, interpretive charity, aggressively learning from others - dovetail with a legitimate desire to maintain some degree of separation between law and politics. At the same time, the Constitutional Court has attempted to assist other actors in our still nascent democracy in the long, arduous task of "state-building" so that citizens might enjoy the more mundane benefits of living, day-to-day, in a constitutional democracy. Call it law, or some garden variety form of justice, but it is, for most people, what they want, on a regular basis, from the state that serves them.
Author Thaddeus MetzSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 312 –328 (2013)More Less
I address Frank Michelman's very recent attempts to dispel the notion that there are deep tensions between a liberal approach to constitution making and a resolute commitment to fighting poverty, ie, to holding what he calls "social liberalism". He focuses on the prima facie tension between antipoverty struggle on the part of government and the existence of a property clause in a constitution, a tension that several commentators in South Africa have contended requires removing that clause from the Constitution of the Republic of South Africa, 1996 ("the Constitution"). In reply, Michelman argues that in the final analysis there need be no principled conflict between the two, which implies that amending the South African Constitution is unnecessary and perhaps even unwise. I provide some reason to think that Michelman's attempted resolution is incomplete, but use the most space to suggest plausible ways to understand the legal function of a property clause in a liberal constitutional order beyond those Michelman addresses that can also help to resolve the apparent tension between it and a concerted effort to reduce poverty.
Not quite a rejoinder : some thoughts and reflections on Michelman's "Liberal Constitutionalism, Property Rights and the Assault on Poverty"Author Sanele SibandaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 329 –341 (2013)More Less
This article continues a conversation that commenced on the pages of this journal in 2011 between myself and Professor Michelman. In seeking to take that conversation forward the present article briefly recounts the overarching thesis in my article entitled "Not Purpose-Made! Transformative Constitutionalism, Post-independence Constitutionalism and the Struggle to Eradicate Poverty" (2011) 22 Stell LR 482. In that article I sought to develop a critique of transformative constitutionalism specifically, and liberal democratic constitutionalism more generally. This critique presented the very limited set of possibilities presented by these forms of constitutionalism in the transformation of post-apartheid South Africa into a more equal society in which poverty is eradicated. The current article then proceeds to briefly outline Professor Michelman's views advanced in his essay entitled "Liberal Constitutionalism, Property Rights, and the Assault on Poverty". In particular, the present article engages with Professor Michelman's reconstruction of the critique advanced in "Not Purpose-Made". In so doing, this article articulates what Professor Michelman identifies as resonances and limits and/or shortcomings in my critique. Thereafter, the article sets out the basis for my continuing lack of conviction in liberalism's (including social-liberalism's) potential to be the enabler of truly emancipatory outcomes in the South African political, social and economic milieu. The article concludes by making a call to a revival of imagination beyond liberal notions and conceptions as a way in which to deliberately re-imagine a liberated South Africa.
"For Michelman, on the contrary" : republican constitutionalism, post-apartheid jurisgenesis and O'Regan J's dissent in Minister of Home Affairs v FourieAuthor Jaco Barnard-NaudeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 342 –358 (2013)More Less
This article offers an encounter between Frank Michelman's celebrated 1988 article, "Law's Republic" (F Michelman "Law's Republic" (1988) 97 Yale LJ 1523) and the judgments of the Constitutional Court in Minister of Home Affairs v Fourie 2006 1 SA 524 (CC). The piece commences with a close reading of Michelman's "counterintuitive" argument for a jurisgenerative republican constitutionalism - an argument that still sees a prophetic, future-looking role for judicial review as opposed to an excessive authoritarian jurisprudence that simply endorses or upholds the people's prior normative utterances. Having explicated Michelman's argument, the article evaluates the majority and separate, partially dissenting judgments of the Constitutional Court in Minister of Home Affairs v Fourie 2006 1 SA 524 (CC), against the backdrop of Michelman's argument. I conclude that while the majority judgment can certainly be characterised as republican-jurisgenerative, it is the judgment of O'Regan J that is more robustly jurisgenerative in that it brings republican jurisgenerative commitments and justifications at the level of judicial review, more sharply into focus. The piece concludes with a brief reflection on the question whether a republican jurisgenerative form of politics is still possible, given pervasive (neo)liberal constitutionalism and the "agonistic" solution proposed by Chantal Mouffe (C Mouffe The Democratic Paradox (2000) 102).
The usefulness of Michelman's utilitarian approach to compensation for expropriation in South AfricaAuthor W.J. (Elmien) Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 359 –376 (2013)More Less
Two recent court cases, Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC) and Mhlanganisweni Community v Minister of Rural Development and Land Reform (LCC 156/2009) 2012 ZALCC 7 (19 April 2012) put compensation issues on the foreground again. This article uses these two cases to discuss Michelman's theory of compensation as proposed in his seminal article, "Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law" (1967) 80 Harv L Rev 1165. The aim is to show what lessons we can learn from such a utilitarian perspective on compensation, and to assess whether this is useful in the South African context.
In loco parentis : Le Roux v Dey
[Discussion of Le Roux v Dey (Freedom of Expression Institute and Another as amici curiae) 2011 3 SA 274 (CC)]Author Mkhululi StubbsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 377 –390 (2013)More Less
The reasoning set out in the judgment of the majority of the Constitutional Court in Le Roux v Dey (Freedom of Expression Institute and another as amici curiae) 2011 3 SA 274 (CC) has been criticised and commented upon for a number of reasons. This case note assesses some of that critique and finds that it is well founded. More than that, I conclude that the alternative argument that it offers is preferable to the opinions expounded by the Court in the case. Although the dissenting judgment of Yacoob J takes a different approach, given the fact that it reaches a similar conclusion, I conclude that it ought to have won the day.