On the reciprocal relationship between the rule of law and civil society
| Jurisdiction | South Africa |
| Published date | 15 August 2019 |
| Pages | 374-406 |
| Author | Stu Woolman |
| Date | 15 August 2019 |
| Citation | 2015 Acta Juridica 374 |
On the reciprocal relationship between
the rule of law and civil society
STU WOOLMAN*
And I’m driving a stolen car, down on EldridgeAvenue.
Each night I wait to get caught, but I never do.
She asked if I remembered the letters I wrote, when our love was young and
bold.
She said last night she read those letters: and they made her feel one hundred
years old.
I’m driving a stolen car, on a pitch black night, and I’m telling myself – I’m
gonna be alright.
But I ride by night, and I travel in fear, that in this darkness, I will disappear.
Bruce Springsteen ‘Stolen Car’ The River
The reciprocal relationship between a robust rule of law culture and a truly
civil, civil society is much like the relationship between the characters in this
song. Neither can subsist, meaningfully, without the other. When it works,
the bond is bold. When the connection falters, no easy rapprochement exists.
How to create both – and the union between them – ab initio? That’sa big ask.
But it’s a complex endeavour worth undertaking.The success of South Africa’s
democratic project rests upon its realisation. Fail: and into that darkness, we
shall disappear.
Section 1(c) of the Constitution refers to the ‘[s]upremacy of the
constitution and the rule of law’ as some of the values that are founda-
tional to our constitutional order. The first aspect that flows from the
rule of law is the obligation of the state to provide the necessary
mechanisms for citizens to resolve disputes that arise between them. This
obligation has its corollary in the right or entitlement of every person to
have access to courts or other independent forums provided by the state
for the settlement of such disputes. The obligation on the state goes further
than the mere provision of the mechanisms and institutions referred to above. It is
also obliged to take reasonable steps, where possible, to ensure that large-scale
disruptions in the social fabric do not occur in the wake of the execution of
court orders, thus undermining the rule of law.
Chief Justice Pius Langa,
President of the Republic of South Africa and Others v Modderklip Boerdery
1
* Professor of Law and Elizabeth Bradley Chair of Ethics, Governance and Sustainable
Development, University of the Witwatersrand, Johannesburg; BA (Hons) (Wesleyan) MA
(Columbia) JD (Columbia Law) PhD (Pretoria).
1
2005 (5) SA3 (CC) (emphasis added).
374
2015 Acta Juridica 374
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I CATCHAND RELEASE
I stopped at a red traffic light the other night.
Remarkable? Well, yes, given the sketchy part of Johannesburg that I
was driving through that evening. Under normal circumstances, with no
cars crossing my path from any direction, I would have rolled that light.
To be sure, I will do so again in the future. Life here is a moveable feast.
And one either moves or is moved.
But not that night, and not at that light.
‘Why?’ I asked myself, as I stopped and waited for the green robot to
grant permission to proceed. What had broken my pattern of non-
compliance with the law in circumstances where I knew that the law
would likely be of little or no assistance?
Three recent experiences.
Three times during a two week period in late October 2013, Johannes-
burg Metropolitan Police Department Officers (JMPD) directed me to
stop and to pull over. I had not trespassed. On the first occasion two
officers walked up to my car. They asked for my licence, and they
checked the validity of my disc. After noting my driver’s licence was
about to expire, and giving me a friendly exhortation to get it sorted out,
they sent me on my way.
The following evening, at the exact same spot, another officer pointed at
me and asked me to pull over. She approached from behind the left side of
my car, looked at the licence disc, said hello to my partner’s two
schnauzers and asked their names (‘Ernie’ and ‘Ernestina’). She wished
me, and the dogs, a good evening.
A week and change later, after being waved through four different
catchment zones, a JMPD patrol car pulled me over on the M1 just before
the Corlett Drive off ramp. They noted the manner in which my licence
plate was affixed to the rear of my car. Duct tape: it had been knocked
loose by an overzealous taxi driver a day earlier. They checked my disc.
Fine. They asked for my licence. This document I had absent-mindedly
left in my wallet at my partner’s home in Melville. The officers were not
impressed. A call to my partner likewise failed to convince. Then an
inspired moment! My publisher had just sent me additional copies of my
recent monograph – The Selfless Constitution. The box lay in the trunk. I
exited the car, opened the boot and tore open the parcel. I turned to the
inside back cover. It contains a photograph of me and a short bio –
including my current station in the world. The officer took it all in. He
said: ‘You’re a big man – a university professor.’ I said: ‘No!You are a big
man – you enforce the law! I just write about it.’ With that proof of my
identity established, and our mutual admiration confirmed, he and his
partner bid me ‘adieu’. Or more likely, since the emotions didn’t quite
rise to Casablanca heights, I received a handshake and a ‘Shap, shap’.
375
THE RULE OF LAW AND CIVIL SOCIETY
© Juta and Company (Pty) Ltd
When I rehearsed the entire set of experiences to my partner – a
sociologist who has had the opportunity to engage and to study the police
first hand – she noted that recent studies have found that when individuals
have two or more positive experiences with law enforcement officials,
they tend to have a more favourable view of the police (as well as courts
and other agents of the state.) It therefore occurred to me that my recent
civil engagement with local constables had, in all likelihood, led me to
obey the law – at a red robot on a pitch black night in Alex – when others
might not have done so when similarly situated.
The remainder of this article provides a theoretical framework for what
occurred over that month and draws its power from a number of related
disciplines (ie, sociology, social psychology, political theory, ethics and
political science). Part II engages the four master narratives that inform
our understanding of the rule of law in South Africa today. It suggests how
they remain incomplete and require supplementation. Part III develops
the primary thesis of this article: that a reciprocal relationship between the
rule of law and civil society must be developed if the manifold aspirations
of our constitution are ever to be realised. Given the difficulties of
moving from an authoritarian apartheid regime to a polity grounded in a
substantive notion of the rule of law, the remedies on offer are invariably
incomplete. Part IV introduces Tom Tyler’s procedural fairness account
of the rule of law: namely, that citizens consider the state ‘legitimate’if the
institutions which govern society treat citizens equally, irrespective of the
outcome in a given matter or most matters. Tyler has vetted this thesis,
after beginning in Chicago, around the world. Not surprisingly, while
procedural fairness is undoubtedly nice to have, it does not account for
what citizens in other nations deem to be critical for the realisation of a rule
of law culture in a legitimate state. Some societies emphasise common
mores. Others societies stress the efficacy of bureaucratic administration.
No two countries and no two domains are alike – and none cleave to the
rather arid conception Tyler developed 25 years ago. Part Vbrings us back
to South Africa – and the sociological studies carried out in that last few
years on what South African citizens believe the rule of law to require. It
first demonstrates how the rule of law, when inextricably connected to civil
society, to our constitutive attachments and to what social capital we
possess, is a necessary requirement for the pursuit of a life worth valuing in a
modern, radically heterogeneous polity such as our own. Procedure alone
is insufficient. Part V goes a step further. It then demonstrates that it is the
internalisation of norms such as dignity and equal concern and respect – by
governors and governed alike – that enable the rule of law to function both
vertically and horizontally. That is, we must learn to treat one another as
equals without the imposition of coercion. In short, when a reciprocal
internalised relationship exists between the rule of law and civil society, the
376 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA
© Juta and Company (Pty) Ltd
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