From Form to Substance: The Constitutional Jurisprudence of Laurie Ackermann

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Author: Catherine O'Regan
• Date: 15 August 2019
• Pages: 1-17

From Form to Substance:

The Constitutional Jurisprudence of

Laurie Ackermann

CATHERINEO’REGAN*

Constitutional Court of South Africa

I INTRODUCTION

There is one phrase that I think best captures Laurie Ackermann’s

temperament as a judge. It comes from that great judge Learned Hand’s

speech in Central Park in May 1944. There, Learned Hand spoke

movingly of the Spirit of Liberty. ‘Liberty’, he said,

is not the ruthless, the unbridled will; it is not freedom to do as one likes . . .

What then is the spirit of liberty? I cannot def‌ine it; I can only tell you my

own faith. The spirit of liberty is the spirit which is not too sure that it is right;

the spirit of liberty is the spirit which seeks to understand the mind of other

men and women; the spirit of liberty is the spirit which weighs their interests

alongside its own without bias . . .

1

There are some judges who have a deep-seated and unshakeable faith

in their own sense of justice. Disagreement with their colleagues does not

deter or bother them. Their sense of justice is like a shining light which

guides them in their response to disputes and their judgment-writing.

Other judges labour under the burden of dissent; that anxious sense that

when they differ from their colleagues, they may well be wrong; that

worrying remembrance of occasions in the past when even the greatest

judges have erred materially, which reminds them that they too may err

and so fail in their obligation to administer justice to all. Laurie

Ackermann was such a judge. His judicial conscience was always one that

‘was not too sure that it is right’. In order to be sure, he would, perhaps

more than any other judge at the Constitutional Court, read widely on

the jurisprudence of other countries. He would prepare for oral argument

meticulously, and listen carefully to what was argued. He would also

listen closely to his colleagues and gnaw at legal problems incessantly till

he felt he had found the right way forward.

Such a temperament is, although f‌itting, a painful one for a judge. It is

a temperament ordinarily accompanied by modesty, diligence and an

* Judge of the Constitutional Court of South Africa.

1

Learned Hand ‘The Spirit of Liberty’ (1944) available at http://www.criminaljustice.org/

public.nsf/ENews/2002e67?opendocument.

1

2008 Acta Juridica 1

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ability to listen – all of which Laurie possesses in abundance. Yet make no

mistake that when Laurie had set a course, after careful and thorough

deliberation, he was implacable in pursuing it.

The work of a collegial court is a very special form of human

endeavour which has perplexed sociologists, philosophers and lawyers –

and not least – those of us who have the privilege to serve on them.

2

Judgment-writing on a collegial court, or at the very least on the South

African Constitutional Court (perhaps like Tolstoy’s unhappy families,

each collegial court is different), is a joint deliberative process in which

each judge determines what he or she considers to be the appropriate

approach to a case and the reasoning that he or she considers should be

followed in determining its outcome. The vast majority of cases involve

more than one issue: so a case might involve a jurisdictional question

(such as whether the case involves a constitutional issue), a standing

question (such as whether the party has standing to raise that issue), as

well as the key substantive question itself. Once that is answered, there

will often be the tricky issue of deciding on an appropriate remedy. Each

of these issues thus has to be considered and determined by each judge.

Taking the plurality of issues into account, it is something of a miracle

that an eleven-member court can ever produce a unanimous judgment.

But it does. Indeed, in the 2005 year some 75 per cent of the Court’s

judgments were unanimous.

3

At the Constitutional Court, collegial deliberation is lengthy, substan-

tive and conducted both verbally in meetings and electronically by the

exchange of notes and drafts. During the course of deliberation on a

particular case, the court will meet at least twice to discuss it and often as

many as half a dozen times and sometimes even more. In addition, there

will ordinarily be many lengthy written exchanges on the case. The

process of deliberation at its best ref‌ines issues, improves legal reasoning

and renders just outcomes more likely. As a result of the process of

deliberation, a draft judgment may change dramatically from when f‌irst

written to its f‌inal form.

2

There is a fairly voluminous literature. See, for example, D Leonard ‘The correctness

function of appellate decision-making: judicial obligation in an era of fragmentation’ (1984) 17

Loyola of Los Angeles LR 299; L Kornhauser ‘Modelling collegial courts I: Path dependence’

(1992) 12 International Review of Law and Economics 169; L Kornhauser ‘Modelling collegial

courts II: Legal doctrine’ (1992) 8 Journal of Law, Economics and Organisation 441; R G Seddig

‘John Marshall and the origins of Supreme Court leadership’ (1975) University of Pittsburgh LR

785; Rogers ‘‘‘I vote this way because I’m wrong’’: the Supreme Court justice as Epimenides’

(1990–1) 79 Kentucky LJ 439; L Vargas ‘Does a diverse judiciary attain a rule of law that is

inclusive? What Grutter v Bollinger has to say about diversity on the bench’ (2004) 10 Michigan

Journal of Race and Law 101; L Kornhauser and L G Sager ‘Unpacking the Court’(1986) 96 Yale

LJ 82.

3

M Bishop et al ‘Constitutional Court statistics for the 2005 term’(2006) 22 SAJHR 518 at

524.

2DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER

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