South African Judges: In Dereliction of Their Duty?

 

Patti Tutone

Phil 41H

Prof. Postema

 

 

 

 

 

 

 

 

 

The actions of judges are an important component to one’s understanding of the rule of law, because a judge’s fidelity to a particular statute when interpreting the law will be affected by his or her conception of the rule of law.  The dilemma judges face between adhering to the law and being morally obligated to change an unjust law is often discussed by philosophers.  David Dyzenhaus chooses to discuss this issue in the context of apartheid-era South Africa, and he is critical of judges during that era because, according to him, they did not fulfill their duty.  In Dyzenhaus’ conception of the rule of law, a judge must not blindly adhere to laws, but must use the overall body and principle of the law to fight unjust laws.  Although judges in apartheid South Africa did not have the power of judicial review, it was their duty to use the power they did have to fight apartheid.  While Dyzenhaus’ argument is valid, it lacks adequate development.  In looking at the views of Ronald Dworkin and Gerald Gaus and countering objections from those such as Joseph Raz, one can expand Dyzenhaus’ contention to strengthen its merit and arrive at a more compelling conclusion.  

Dyzenhaus finds merit in Lon Fuller’s account of the rule of law as the rule of the inner morality of law.  Fuller’s eight principles regulate the procedure of lawmaking, and Dyzenhaus finds this more appealing than arguments about the substantive nature of law.  The difference between Fuller’s understanding and

natural law accounts, according to Dyzenhaus, is that with Fuller’s account, “Law does not lose its character as such principally because of its violation of some set of standards of justice external to the law, but because those with power choose to govern outside the rule of law.”[1]   But the distinction between process and substance can be blurred because, “Process is important because it brings substance to the surface – the principle of publicity.  But process also plays a role in the determination of substance – the principle of intelligibility” (Dyzenhaus, Judicial Independence).  Dyzenhaus uses these concepts of publicity and intelligibility to explain how apartheid judges could have chosen justice over the apartheid laws.

Dyzenhaus utilizes the Bram Fischer case to explain the claim of justice over fidelity to the law.  Bram Fischer was one of South Africa’s leading advocates[2] and, despite being a prominent member of the South African Communist Party, maintained this position through the 1950s and early 1960s.[3]  In 1964 he was charged with offenses under the Suppression of Communism Act, and he failed to attend his trial.  He said he acted in such a way because he thought it was his duty to fight against the unjust policy of apartheid; he argued that an advocate has a deeply rooted respect for legality that can only be broken when his “political conscience” does not permit him to follow the law (Dyzenhaus, With Benefit, 72).  The Johannesburg Bar Council removed Fischer’s name from the role of advocates, an act with which Dyzenhaus disagrees.

Bram Fischer’s case can explain how a legal action can become invalid if it is in violation of one’s understanding of the rule of law.  In his case, Fischer found the law to be unintelligible—it went against the relationship between the governor and the governed and to follow it would have been against his interests. Therefore, breaking the law is sometimes the only way to respect the rule of law, and the act of doing so can be a political act rather than a personal one.  Dyzenhaus uses the words of Christine Korsgaard to emphasize his point:

“The person with the virtue of justice, the lover of human rights, unable to turn to the actual laws for their enforcement, has nowhere else to turn.  She may come to feel that there is nothing for it but to take human rights under her own protection, and so to take the law into her own hands.”[4]

In other words, when justice is so perverted that it is really injustice disguised as justice, disobedience may be necessary.

Dyzenhaus argues that judges during apartheid in South Africa should have used Bram Fischer’s theory of the rule of law.  According to Dyzenhaus, government under the rule of law is subject to constraints of “fundamental principles of legality” such as fairness, reasonableness and equality of treatment.  When these principles are subverted in the making of law, the rule of law itself is undermined.  Dyzenhaus contends that the rule of law gives judges the leverage to interpret law with the result of justice, and these interpretations will be narrower than what the law in fact states.  Under the rule of law, laws are general in nature; therefore, the legislature depends on the judiciary to make these interpretations. 

Dyzenhaus states, “Judges, in meeting their duty to administer the justice of the law, should take pains to find their legislature not guilty of wanting to subvert the rule of law” (Dyzenhaus, With Benefit. 79).  He argues that judges’ interpretations of the law force the legislative arm of government to admit its intentions in creating such law.  This involves his concept of publicity—that the true nature of the laws is brought to the surface.  If this arm of government is forced to own up to its subversive intentions, this might prevent it from making such laws in the future.  Dyzenhaus says the government, when placed in this position, could have either announced that it would maintain apartheid and could not abide by the rule of law, or could have subjected the administration to the fundamental principles of legality and ended apartheid (Dyzenhaus, With Benefit, 80).

In terms of the judges’ dilemma, Dyzenhaus argues that they could have condemned apartheid without going against fidelity to law.  They would have been condemning such law not because they personally disagreed with it, but because it went against principles that were fundamental to preserving legal order (Dyzenhaus, With Benefit, 80).  This would place the government in the position to choose between following or disregarding the rule of law.  “The South African judiciary let the government escape from that rule of law dilemma and for that the judges are accountable, and not only for dereliction of duty” (Dyzenhaus, With Benefit, 80).  Dyzenhaus says the fact that liberal judges did not resign at that time was respectable because, although they gave legitimacy to the idea that the rule of law did exist in South Africa, they fought to make the law meet the aspirations of the fundamental principles.  If they had resigned so as to boycott the ideology of apartheid, they would have been going against their duty as judges (Dyzenhaus, With Benefit, 82).

Some judges say that advocating for or against a political issue such as apartheid and seeking transition in government goes against their judicial independence.  Dyzenhaus discusses the idea of judicial independence in “Judicial Independence, Transitional Justice and the Rule of Law.”  “The virtue of judicial independence is that it protects judges so that they can carry out their duty to do justice within the law” (Dyzenhaus, Judicial Independence).  Those judges who followed the “plain fact” approach—the belief that one’s moral sensibilities should have no impact on judicial interpretation and that one should interpret the law as it was intended by the legislators to be interpreted—were not maintaining this independence, according to Dyzenhaus.  The act of submitting to the legislature’s intent is a political act, and only if the judge’s remain outside politics do they maintain independence.  Dyzenhaus suggests that judges accept that they must act politically, but says their political acts involve fidelity to a set of political values, rather than a branch of government.  He explains that the plain fact approach should be rejected in that it requires that interpretive problems be decided because of one group’s intent and not in accordance with the rule of law (Dyzenhaus, Judicial Interpretation).

Ronald Dworkin explains and refutes something similar to the plain fact approach in his theory of adjudication, and he articulates this approach as the idea of relying on intent to interpret law.  Dworkin speaks of this in the context of the United States Constitution, in saying that judges should concern themselves not with the framers’ intentions but with the interest of the general core structure of the law.  Dworkin’s core structure is similar to Dyzenhaus’ fundamental principles or deference to Common Law.  Both explain how this type of interpretation is different than basing judgments on one’s own moral convictions because it takes into account the morality of the entire society. 

Dworkin argues, “When we understand democracy better, we see that the moral reading of a political constitution is not antidemocratic but, on the contrary, is practically indispensable to democracy.”[5]  In other words, using morality to adjudicate is not denying the public’s role in government but embracing it.  Dworkin explains that while understanding what the framers of the Constitution meant to say is important, what they intended to happen as a result of what they said is of little importance today.  As long as a judge’s moral decision goes along with what the Constitution as a whole was meant to say, it is a sound decision according to Dworkin.  This helps one to better understand Dyzenhaus’ argument.  That a judge believed apartheid was wrong was of no importance in South Africa; the importance rested in the judge’s ability to prove that apartheid laws were not consistent with what the Common Law meant to say.  Since Common Law is derived from public agreement on appropriate action, a judge would be interpreting the law with the intent of the public in mind, and the law would be publicly justified.

Public justification of laws is an idea better expressed by Gerald Gaus.  His idea of the public’s interest in the law correlates with and better explains Dyzenhaus’ concept of the intelligibility of laws.  As there is no natural ground for legal authority, according to Gaus, reason provides the authority that people need to obey the law.  In using the human power of reason, people can understand why it is necessary for them to follow certain laws. Each rule or law must be publicly justified in order for it to stand, but when citizens disagree, an umpire is needed to resolve their disputes.[6]  The umpire himself must be someone who is publicly justified to decide, whether that is through election or some other means.  Gaus says when making a decision, the umpire should take into account the moral position of both parties in the dispute.  When there is not a precedent, Gaus suggests that the umpire appeal to the fundamental principles relating to the decision.  This supports Dyzenhaus’ notion of judges’ looking at the underlying principles instead of merely examining the face of the law.  Gaus states, “Proclamations by the umpire that fall far short of achieving their practical and moral purposes—and even more obviously those that run counter to those justifying purposes—thus fail as law” (Gaus, Public Reason, 348).  It is the duty of judges to recognize these failings and remedy them.

A theorist with less faith in the rule of law such as Joseph Raz would have objections to Dyzenhaus’ argument because it relies on the assumption that the rule of law is supreme.  Raz states:

“The rule of law is just one of the virtues which a legal system may possess and by which it is to be judged.  It is not to be confused with democracy, justice, equality…human rights of any kind or respect for persons or for the dignity of man.”[7]

In Raz’s conception of judicial independence, the non-political nature of the judiciary means that it should be straightforward in its application of the law and refrain from acting for any reason other than for what the law proscribes.  In other words, Raz does not see a need for morality to enter the realm of adjudication.  In his view there are principles that guide the formation of laws, but these principles do not relate to the substantive nature of laws in any way.  The principles (such as stable, clear, and non-retroactive) are necessary components only because people could and would not follow the rule of law without them.  But the rule of law and injustice can easily coexist, according to Raz. 

Raz might challenge Dyzenhaus’ idea that there is equality inherent to the rule of law because he does not agree that the rule of law has a moral component.  Dyzenhaus could counter this argument because Raz does agree that people must be willing to follow laws in order for laws to exist.  If principles such as equality were not present in the rule of law, the incentive to follow the law (without taking into account public fear of rulers) would be lost.  Gaus would defend Dyzenhaus’ argument that the rule of law has fundamental a principle of equality, because that principle has been agreed upon and publicly justified.

In examining Dyzenhaus’ argument in the context of these other philosophers, I agree that the judges in apartheid South Africa were derelict in their duty when they failed to use the fundamental principles of natural law to change apartheid law.  A judge would not have lost his or her independence by going against apartheid because the move, albeit political, would have been less political than blind adherence to the legislature.  Laws that pervert the underlying nature of a body of law and are unintelligible to the public should be overturned.  If this is not possible, the judiciary has a responsibility to find some means of remedying the situation.  As resignation would have been a poor choice, liberal judges in South Africa faced the task of rising to the challenge of justice.

 


[1] David Dyzenhaus, “Judicial Independence, Transitional Justice and the Rule of Law,” (unpublished MS), p. 8.

[2] The South African legal profession is split between advocates (barristers) who actually go to court and try cases and attorneys (solicitors) who perform all other legal tasks.

[3] David Dyzenhaus, " 'With Benefit of Hindsight': Dilemmas of Legality in the Face of Injustice," in Emilios Christodoulidis and Scott Veitch, eds., Lethe’s Law: Justice, Law and Ethics in Reconciliation (Oxford: Hart Publishing, 2001), p. 69.
 

[4] C.M. Korsgaard, “Taking the Law into Our Own Hands: Kant on the Right to Revolution,” in A Reath, B Herman, C.M. Korsegaard (eds), Reclaiming the History of Ethics: Essays for John Rawls (Cambridge, Cambridge University Press, 1997), 297.  Quoted by David Dyzenhaus, “The Benefit of Hindsight.”

[5] Ronald Dworkin, Freedom’s Law (Cambridge, MA: Harvard UP, 1996) p. 7

[6] Gerald F. Gaus,” Public Reason and the Rule of Law,” The Rule of Law, (New York: UP, 1994) p. 330.

[7] Joseph Raz, “The Rule of Law and Its Virtue,” The Authority of Law, p. 211.