Legal transformation and legal education: Congruence or conflict?
| Jurisdiction | South Africa |
| Citation | 2015 Acta Juridica 172 |
| Published date | 15 August 2019 |
| Pages | 172-188 |
| Author | Dennis Davis |
| Date | 15 August 2019 |
Legal transformation and legal education:
Congruence or conflict?
DENNIS DAVIS*
This contribution canvasses the extent to which the legal academy has
responded to the ambition of the Constitution in the manner in which legal
education is provided in tertiary institutions. In order to answer this question
the paper sets out a definition of the concept of legal transformation which is
divined from a holistic reading of the Constitution. In particular, the demands
which the Constitution places upon the development of the common law is
emphasised. Following upon this analysis, the paper examines key textbooks
which are used in teaching, particularly of contract and delict, in order to
determine the nature of teaching in critical subjects. The analysis reveals that
key areas of law are taught as if the Constitution has little or any influence to
play in the study of or the development of South African private law.Further,
there appears to be a regrettable absence of any engagement with a legal
method which might have emerged in order to meet the transformative legal
challenges as outlined in this paper.
I INTRODUCTION
Some years ago, Professor Frank Michelman, who has written with
penetrating eloquence on various aspects of South African constitutional
jurisprudence,
1
spoke of a hypothetical exercise that he had undertaken
sometime after the introduction of constitutional democracy with a
group of American law teachers. He reproduced the text of s 8 of the
Constitution
2
and posed the following question to the assembled gather-
ing: in the event that the Constitution of the United States of America was
amended to include a provision similar to s 8 of its South African
counterpart, what would be the implications for the teaching of private
law, in particular, at American law schools. According to Professor
Michelman, the assembled teachers of contract, tort (ie delict) and
property responded to the effect that they would be required to reconfig-
ure their entire syllabus in the light of this provision which directly
implicated all areas of the common law.
* Judge of the High Court of South Africa; President of the CompetitionAppeal Court;
Honorary Professor, University of CapeTown; BA LLB (Cape Town)MPhil (Cantab).
1
See eg FI Michelman ‘The rule of law, legality and supremacy of the constitution’ in
S Woolman et al (eds) Constitutional Law of South Africa vol 1 ch 11; see also FI Michelman
‘Expropriation, eviction and the gravity of the common law’(2013) 24 Stell LR 245.
2
The Constitution of the Republic of SouthAfrica, 1996.
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2015 Acta Juridica 172
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On the face of it this was the obvious answer. Section 8 and the related
s 39(2) of the Constitution,
3
which may be described as the developmen-
tal sections of the Constitution, mandated a continuing audit of the entire
body of South African common law to ensure that all its rules were
congruent with the Constitution and, if not, were to be brought into line,
not only with the express provisions of chapter 2, the Bill of Rights, but
also with the ‘spirit, purport and objects’ of the Bill of Rights.
4
These provisions formed a significant part of the jurisprudential foun-
dation for the vision of the South African legal system advocated by Chief
Justice Pius Langa when he articulated his conception of transformative
jurisprudence.
5
The Chief Justice defined constitutional transformation
as –
a permanent ideal, a way of looking at the world that creates a space in which
dialogue and contestation are truly possible, in which new ways of being are
constantly explored and created, accepted and rejected and in which change is
unpredictable but the idea of change is constant. This is perhaps the ultimate
vision of a transformative, rather than a transitional Constitution. This is a
perspective that sees the Constitution as not transformative because of its
peculiar historical position or its particular socio-economic goals but because
it envisions a society that would always be open to change and contestation, a
society that will always be defined by transformation.
6
This approach found eloquent support in the form of a most influential
article penned by Professor Karl Klare who referred to transformative
constitutionalism in terms of a long term project committed to the
transformation of the socio-political institutions of South Africa thereby,
‘inducing large-scale social change through non-violent political pro-
cesses grounded in law’.
7
Of particular relevance to the meeting of this
challenge was the warning issued by Klare that the prevailing South
African legal culture might retard the Constitution’s egalitarian ambition
which appeared to stand in sharp contrast to the vintage canons of legal
analysis steeped in the Roman-Dutch tradition, which, in turn, was
adulterated by almost a century of racist and apartheid governance.
Chief Justice Langa was keenly aware of this formidable obstacle.
Accordingly, he paid careful attention to the challenges facing legal
3
It is beyond the scope of this contribution to discuss this particular provision in any detail.
For a spirited debate about its implications, see A Fagan ‘The secondary role of the spirit,
purport and objects of the Bill of Rights in the common law’s development’(2010) 127 SALJ
611; D Davis ‘How many positivist legal philosophers can be made to dance on the head of a
pin?A reply to Professor Fagan’ (2012) 129 SALJ 59. For further exchanges see (2012) 129 SALJ
788; (2013) 130 SALJ 52.
4
Michelman (n 1) 246; Carmichele v Minister of Safety and Security 2001 (4) SA938 (CC) paras
39–40.
5
P Langa ‘Transformative constitutionalism’ (2006) 17 Stell LR 351.
6
Langa (n 5) 354.
7
K Klare ‘Legal culture and transformative constitutionalism’(1998) 14 SAJHR 146 at 150.
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LEGAL TRANSFORMATION AND LEGAL EDUCATION
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