Why are lawyers such reluctant revolutionaries?

I was interviewed on Radio Sonder Grense (RSG) this morning when the interviewer asked me to name the one greatest event or development of the past 13 years from a constitutional law perspective. (Note to readers: this is my Xolela Mangcu moment, trying to show off!).

Surprising myself I said it was the fact that the Constitutional Court had introduced a new positive attitude towards uncertainty into our law. Instead of mindless reliance on precedent, every case is now really decided from scratch. This has the potential to open up the law and allows judges to acknowledge and rectify mistakes.

I am not sure the Constitutional Court judges have shown a particular willingness to acknowledge mistakes – in conferences I have attended some of the judges have been rather defensive about criticism of their judgments. However, I do think the Constitution has introduced a fair amount of uncertainty into our law and I do think it is a great and wonderful thing.

Most lawyers – especially the non-academic, practicing kind – get a bit anxious about the fact that section 39(2) of the Constitution now requires judges when interpreting legislation or developing the common law or customary law to take into account the values enshrined in the Bill of Rights.

In principle this means that every single common law rule can now be subjected to critical scrutiny and can be changed if it is found not to be in line with the values of the Bill of Rights. It also means that judges cannot merely refer to previous precedent but must ask questions about the values underlying a specific common law rule.

This means that it becomes more difficult to uphold the fiction that judges only apply the law and do not make it. It also in theory forces judges and lawyers to confront the fact that legal rules are based on certain values and that those values can be either good or bad.

For example one of the founding principles of the law of contract is that a contract is a document entered into freely by two or more people and that the two parties have equal power in entering into a contract. This is of course a preposterous fiction that benefits the rich and powerful and ignores the vulnerability of the disempowered party.

In the past when judges upheld this principle there was no need for them to acknowledge that freedom of contract is a deeply political concept based on assumptions underpinning the free market and capitalism. Now any judge that takes seriously the injunction of section 39(2) will have to think about his or her own views on the political economy of South Africa.

Given the inclusion of social and economic rights and a substantive notion of equality in the Constitution, such a judge may well conclude that the rabid free market assumptions underlying the principle of freedom of contract is not to be squared with the values of the Constitution. Even if such a judge did not come to this conclusion he or she would have had to admit that the law is not just this neutral, value free set of beautiful principles handed down all the way from Grotius and Voet.

At least it brings a bit more honesty into the judicial process. Of course, exactly because it requires more honesty, many judges have tried to shy away from the implications of section 39(2) and have not fully engaged with the way in which the Bill of Rights demand a rethink of the most basic premises of the common law.

Many academic articles have been written about the way in which some of the judges of the Supreme Court of Appeal have tried to avoid the legal revolution implicit in section 39(2). But perhaps some lawyers have also failed in their task by not bringing innovative and forceful arguments to the courts where it could benefit their clients.

I heard Judge Dennis Davis lament the other day that there must be something terribly wrong with our legal education because even young lawyers have failed to harness the full potential of the Constitution. Perhaps because we still teach the law in compartments and often do not see how the Constitution has replaced Voet and Grotius and the grundnorm of the common law, newly qualified students fail to make full use of the Bill of Rights.

A legal revolution awaits us. Pity most lawyers are such reluctant revolutionaries.

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