Albie Sachs and the politics of interpretation

• Author: Henk Botha
• DOI: 10.10520/EJC153257
• Published date: 01 January 2010
• Date: 01 January 2010
• Pages: 39-58

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BLC, LLB (UP) LLM (Columbia) LLD (UP) Professor of Law, University of Stellenbosch. Thanks to

Erin Nel for competent research assistance.

1

Paul W Kahn writes that, in the first half of the 20

th

century in the United States, a radical shift occurred

in constitutional theory as a result of the emergence of the new social sciences and the demise of the

Lochner Court. Constitutional theory no longer centred on the justification of majoritarian institutions,

but came to focus on the opposite problem: ‘the institutional contrast between an illegitimate Court and

the democratically legitimated political branches’. Kahn Legitimacy and history: Self-government in

American constitutional theory (1992) 135. In Germany, too, the institution of judicial review came under

fire. Judgments that were seen to be inspired by a reactionary, anti-redistributionist politics drew

attention to the anti-democratic nature of judicial review, and the rule of law came under pressure as

a result of increasing reliance on open-ended, moralistic legal standards and recourse to administrative

rulings and decrees. See Lübbe-Wolff ‘Safeguards of civil and constitutional rights: The debate on the

role of the Reichsgericht’ in Wellenreuther (ed) German and American constitutional thought (1990)

353. See also generally Botha ‘Democracy and rights: Constitutional interpretation in a postrealist

world’ (2000) 63 THRHR 561 and the literature referred to therein.

2

The first strategy extols the virtues of a passive judiciary that refrains from substituting its views on

policy issues for those of the legislature, and exercises its power of review only in cases where

government action poses a real threat to the constitutional system of government. Classic examples

include Hand The Bill of Rights (1958); and Bickel The least dangerous branch (1962). The second

strategy seeks to ground constitutional interpretation in some objective source of constitutional

meaning, such as the constitutional text, structure, history or purpose, and thus attempts to show

that the making of constitutional value choices is not tantamount to an expression of the judge’s

subjective ideology or preference.

Albie Sachs and the politics of

interpretation

Henk Botha

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1Introduction

The politics of interpretation continues to haunt judges and legal theorists. Ever

since the legal realists launched their attack on the formalist belief that general

legal rules can generate determinate answers to concrete legal questions,

constitutional thought has been obsessed with the spectre of unelected judges

thwarting the will of legislative majorities in the name of their own, subjective

interpretations of constitutional provisions.

1

For generations of constitutional

scholars, attempting to show how judges can avoid substituting their own views

on policy issues for those of legislatures, and/or how constitutional adjudication

can be placed on a more secure footing has been a consuming passion.

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The

(2010) 25 SAPL40

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Michelman ‘A constitutional conversation with Professor Frank Michelman’ (1995) 11 SAJHR 477 at

483. The same metaphor is employed by Häberle ‘Grundrechtsgeltung und Grundrechtsinterpretation

im Verfassungsstaat’ 1989 Juristen Zeitung 913 at 917.

4

In President of the Republic of South Africa v South African Rugby Football Union 1999 4 SA 147

(CC); 1999 7 BCLR 725 (CC) an application was brought for the recusal of five of the Constitutional

Court’s judges. The Court rejected the allegation of a reasonable apprehension of bias on the part

of the judges that was based, in part, on the contention that they were political appointments with

close ties to the ANC prior to their appointment. While acknowledging the role of personal

experience and individual outlooks in shaping judicial responses to legal questions (paras 42-44),

the Court did not view the judges’ political beliefs and prior experience as a barrier to their ability to

decide cases without fear, favour or prejudice.

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Botha ‘Freedom and constraint in constitutional adjudication’ (2004) 20 SAJHR 249.

attempted mediations of what has been dubbed the ‘counter-majoritarian

dilemma’ are legion and rest upon widely divergent views of legal reasoning and

of the judicial role. These differences notwithstanding, there are, however, certain

shared assumptions held in common by the proponents of a great variety of

approaches to and theories of constitutional interpretation. Firstly, it is assumed

that the politics of interpretation consists of the danger that judicial decision

making may be insufficiently constrained; that in the absence of a reliable

interpretive approach or method which meaningfully circumscribes the discretion

of judges, adjudication will invariably rest on judicial whim and prejudice.

Secondly, it is believed that there must be a way out of the conundrum, that it is

possible to neutralise the politics of law if the correct interpretive method – or the

most judicious set of adjudicative practices – is followed.

These views on the politics of interpretation have ceased to command

universal assent. Today, it is widely recognised that a judge’s understanding of

factual and legal disputes is invariably shaped by her experience and background.

The belief in the availability of a single interpretive theory or method which would

allow judges to steer clear of controversial value choices has also been dented

– increasingly, different interpretive methods are seen, in the words of Michelman,

as ‘multiple poles in a complex field of forces, among which judges navigate and

negotiate’.

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However, recognition of the influence of a judge’s personal expe-

rience, attitudes and beliefs and of her creative role in interpreting, reinterpreting

and applying legal materials is not tantamount to an acknowledgment that

adjudication is simply instrumentalist politics covered up by the supposedly

neutral language of law.

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Judges, it is recognised, are constrained by virtue of

their socialisation in a particular legal culture, their membership of an interpretive

community (or communities) and the obligation to provide reasoned justifications

for judgments. The one-dimensional view which sees freedom and constraint in

constitutional adjudication in all-or-nothing terms has started to make way for a

more nuanced picture which reveals different shades and textures of consti-

tutional meaning, and recognises the role of context, imagination and justification

in legal reasoning.

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This opens up the possibility of an alternative conception of

the politics of law, which would avoid the dichotomised worldview and the quest