ETHICS AND THE Law 2021

Week Two
March 2021
Stu WOOLMAN:
The amazing vanishing bill of
rights
FRANK Michelman:
on the uses of InterpretivE
Charity
 sTu Woolman: The Amazing,
Vanishing Bill of Rights
My assessment, for what its worth, is that a penchant for
outcome-based decision-making, and a concomitant lack of
analytical rigour, has finally caught up with the
Constitutional Court. The purpose of this article is to
demonstrate that the court’s current process of (public)
reasoning — its preferred mode of analysis — has genuinely
deleterious consequences. Of, particular import is the court’s
persistent refusal to engage in the direct application of the
Bill of Rights. Flaccid analysis in terms of three vaguely
defined values — dignity, equality and freedom — almost
invariably substitutes for more rigorous interrogation of
constitutional challenges in terms of the specific substantive
rights found in Chapter 2 of the Constitution.
 sTu Woolman: The Amazing,
Vanishing Bill of Rights
If the drafters of the Constitution had intended
such a substitution, the structure and the language of the
Bill of Rights would have reflected that intention. It
doesn’t. Moreover, this strategy — of speaking in
values—has freed the court almost entirely from the
text, and thereby grants the court the licence to decide
each case as it pleases, unmoored from its own
precedent. Our Constitutional Court sits as a court of
equity: That, again, cannot be what the drafters of the
Constitution intended.
sTu Woolman: The Amazing,
Vanishing Bill of Rights
Another consequence of this strategy is that the court has
unwittingly undermined the Bill of Rights. By continually relying
on s 39(2) of the Constitution to decide challenges both to rules
of common law and to provisions of statutes, the court obviates
the need to give the specific substantive rights in Chapter 2 the
content necessary to determine the actual validity of the rule
being challenged in the instant matter and of similar rules
challenged in subsequent matters. This strategy also enables the
court to skirt the nuanced process of justification that s 36 of
the Constitution or someother express limitations clause in a
specific substantive right might require. The persistent refusal to
give rights identifiable content, by avoiding direct application,
results in a Bill of Rights increasingly denuded of meaning.
sTu Woolman: The Amazing,
Vanishing Bill of Rights
The over-reliance on s 39(2) also has the unintended consequence
of undermining the rule of law. The two-step interpretative
process engineered by the drafters of the Bill of Rights ought to
produce black-letter constitutional law. Clear delineation of the
ambit of a right articulates one type of rule; similarly crisp
limitations analysis articulates another type of rule. The articulation
of such express rules of law enables the citizenry and the
government to ensure that their behaviour conforms to our
Constitution. In a domain to which rules are even more germane,
the judicial system itself, rules of black-letter constitutional law
ensure that lower courts and lawyers can identify the law and
thereby settle, litigate and adjudicate, with some confidence,
fundamental rights cases.
sTu Woolman: The Amazing,
Vanishing Bill of Rights
The use of s 39(2) may be a convenient way to secure agreement
amongst eleven judges regarding the appropriate outcome of a
case at the same time as they finesse (or suppress) the logic behind
the outcome. However, this strategy — while useful in cobbling
together majorities on the Constitutional Court — often leaves
readers of a judgment at a loss as to how the Bill of Rights might
operate in some future matter. An approach to constitutional
adjudication that makes it difficult for lower court judges, lawyers,
government officials and citizens to discern, with some degree of
certainty, how the basic law is going to be applied, and to know,
with some degree of certainty, that the basic law is going to be
applied equally, constitutes a paradigmatic violation of the rule of
law.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
To hear Stu Woolman tell it, disturbing lapses and weaknesses —
an apparent ‘lack of analytical rigour’ suggesting what could be a
‘penchant for outcome-based decision-making’ — have been
showing up recently in the work of a Constitutional Court whose
prior record of performance has deservedly garnered widespread
applause. Woolman cites as evidence three decisions from the
Court’s work in the year 2007: Barkhuizen, Masiya,4 and NM,and
suggests that his reactions to these decisions are widely shared
among South Africa’s well-informed Court-followers. He makes a
worthy, illuminating, formidable case, one that the Court would
do well to consult and ponder.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
Formidable is not, however, conclusive. For reasons I shall
come to shortly, I have chosen to devote this space to seeing
what might be said on the other side, specifically with regard
to NM and Masiya, on behalf of a Court that, I quite agree
with Woolman, has left itself with a lot of explaining to do.
The controlling opinions in these cases are indeed, as
Woolman says, ‘thinly reasoned’, if by that we mean they are
in some respects insufficiently explained. It is, however,
another question whether these cases have been wrongly or
irresponsibly managed, as measured by reasonably
discoverable, valid considerations of law and legal
administration.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
In particular, I shall be questioning Woolman’s diagnosis
from these cases of ‘a court uncomfortable with the
direct application of the specific substantive provisions
of the Bill of Rights’ and ‘in full flight from any
meaningful engagement with Chapter 2 of the
Constitution.’ Whether a wider survey of the
jurisprudence would warrant an over-all diagnosis of an
excessive flight from substance is a question on which I
hazard no judgment here. All I say here is that NM and
Masiya do not, to my eye, support the diagnosis, nor is
that, in my view, the best way for us to regard these
cases.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
One feature common to both is the Constitutional
Court’s seeming gravitation to its inherent power to
develop the common law in terms of Constitution
sections 173 and 39(2) — as opposed to its judicial
review power in terms of sections 8 and 172(1) — when
undertaking modification of common law rules under
pressure from the Bill of Rights. Woolman believes the
Court moves too freely to the inherent power. He
associates that tendency, as symptom or cause (or both),
with excessive flight from substance. I aim to raise a
doubt about any such connection.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
The main controversy over Masiya appears to me to
turn, at bottom, more on a point of substantive
disagreement between the Court and Woolman than on
any notable disregard for Bill-of-Rights substance on the
Court’s part. The controversy over NM is more
complicated, and more centrally my concern in these
pages. It certainly is true that Woolman and the Court
divide over when, if ever, the Constitutional Court
ought to resort to an ‘indirect’ instead of a ‘direct’
application of the Bill of Rights to a common law
doctrine or rule — the Court, in Woolman’s view,
making far too much use of ‘indirect’.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
Such a division need not, however — or so I shall contend —
reflect any reduced or absent sense on the Court’s part of
responsibility to engage with the substance of Chapter Two and its
several, rights-naming clauses. It might rather come down to a
question of doctrinal good-housekeeping on which nothing of
substance depends. The Court and Woolman are differing, I shall
suggest, over how best to understand and sort out the respective
offices of the Constitution’s two paths to judicial revision of the
common law under constitutional pressure: revision as a remedy
for constitutional violation pursuant to sections 172(1) and 8, and
revision in the exercise of judicial powers to develop the common
law, with a view to promoting the spirit, purport, and objects of
the Bill of Rights in terms of section 39(2).
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
That filing-system question, I shall maintain, is entirely
distinct from the one about when and how regularly the
Court regards itself as on or off the hook for an
elucidation of one or another of the specific clauses in
the Bill of Rights. In developing these claims, I shall be
quite openly engaged in filling in passages of exposition
and explanation that are missing from the Court’s
opinions in NM and Masiya, to a degree that may
sometimes strike readers as excessively indulgent of the
Court, if not as entirely fanciful.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
In construing and re-presenting the work of the Constitutional
Court in these cases, I take myself to be following something
akin to what linguists and language-philosophers have called a
‘principle of charity’. ‘Something akin,’ not the genuine article,
for this is not a work of philosophy, but rather an intended
contribution to a lawyers’ kibitz on the work of the
Constitutional Court. The ‘principle of charity’, Wikipedia tells
us, is an approach to understanding a speaker’s statements by
interpreting the ... statements to be rational and, in the case of
any argument, rendering the best, strongest possible
interpretation of an argument.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
Donald Davidson, surely one of the principle’s chief
philosophical architects and expositors, also calls it ‘the
principle of rational accommodation,’ and summarises as
follows: ‘We make maximum sense of the words and
thoughts of others when we interpret in a way that
optimises agreement.’ Davidson meant ‘optimise’ as between
thinking that the other must be holding to beliefs (and,
relatedly, aims) that differ drastically from our own (else he
couldn’t have said what he did), and thinking that we must
not have heard him right the first time.
 FRANK Michelman:
on the uses of InterpretivE
“Charity”
The aim of interpretive charity is not generosity toward others, or
anything like that. It is not to pay homage, deference, or respect to
our interlocutors, or to avoid giving offense. It is not to
demonstrate our own good manners, or to toe some Goody Two-
Shoes line against critiques that are not ‘constructive’. (I hold Stu
Woolman’s pull-no punches style of court-watching to be
entirely constructive and admirable.) No, the aim of ‘charitable’
interpretation is not any of those. The aim is to learn. It is
aggressively to learn what there is to be learnt from puzzles the
interlocutors pose to us, by assuming there is method in their
madness and doing our best to ferret that out, using everything else
we know or can guess (in part from their likeness and kinship to
us) about where they are coming from. ‘To see too much unreason
on the part of others’, Davidson says, is ‘to undermine our ability
to understand what it is they are so unreasonable abo about.’ It is
to risk missing issues that might merit our consideration.