Wait and see, that was the general attitude. Constitutional Democracy? In South Africa in the early 1990s? Very few judges and even fewer legal practitioners were interested in Constitutional Democracy. Apartheid was going to be toppled, that was for sure. But whatever the name that would be given to the country’s future constitutional dispensation, that was something for the politicians, not the judges. The judges’ duty would be simply to carry out the law, not determine what its basic rules should be. Even in Law Schools it was only a small minority who wanted to engage in and help shape the new constitutional dispensation.
But, importantly, the handful of judges, and the even fewer group of lawyers, and the somewhat larger number of academics, who were interested were extremely and ravenously so. They/we couldn’t get enough information and ideas, and couldn’t stop talking about the future. We wanted to learn everything about constitutions, from everyone, from everywhere, all the time. And what a joy it was to have our appetites sated by top legal minds from all over the world. They were as avid to share their ideas as we were to receive them - colloquia, workshops, conferences, symposia, and forums abounded - we talked, we talked, we talked.
Early visitors such as the former Chief Justice of India, P N Bhagwati, and that country’s Attorney General, Soli Sorabjee, held us spellbound. They told us of how the Justices of their Supreme Court had completely reconfigured its role; how they’d acted on hand-written letters received from semi-literate prisoners and extremely low-paid workers; how they’d encouraged class actions and Public Interest litigation; and how generally they’d given vitality to a constitution that had been falling into profound public disrepute because of the manifest failure of Parliament and the Executive to fulfil their constitutional responsibilities. The inspiration came not just from the content they conveyed, but from the distinctive spontaneity, refinement and passion of their discourse.
What was it, I wondered, that had brought about the radical inspirational breakthrough in the thinking and style in the upper ranks of the Indian legal and judicial elite? Maybe it takes an ex-prisoner to spot another ex-prisoner, but I had an intuition that Bhagwati had been to jail. I found my moment to enquire indirectly when seated in a quiet corner with him one day. I asked him about his early years in legal practice. Sure enough, he told me that he’d started his legal career two years later than his colleagues, because he’d been imprisoned by the British for his activities in the Indian Congress Youth League. I concluded from this that he’d gone on to be part of a new generation of Indian judges whose judicial vision had been shaped more by the freedom struggle in India than by speeches at dinners at the Inns of Court in London.
Further inspiration was to come from Zimbabwean Chief Justice Dumbutshena. With the support of strong colleagues at his side in that country’s Supreme Court, he was confidently developing a new jurisprudence based on applying universally accepted human rights principles to the realities of his country.
Another strong impact was made by Vital Moreira, a constitutional law professor from Portugal. He’d been in the underground resistance to fascism in that country, gone on to write a leading textbook on Portugal’s new post-dictatorship Constitution, and become a member of the country’s Constitutional Court. He, too, gave us vibrant examples of how a new Judiciary could develop an expansive, progressive jurisprudence to help fulfil the aspirations and expectations of those who had fought for freedom and justice.
Similarly, Judge Leon Higginbotham who had become a leading figure in the African American community in the US, and a strong supporter of the Black Lawyers Association in South Africa, enchanted us with tales of how forward-minded judges in his country had been able to use the law to confront and overcome racism.
Sometimes the most precious pieces of information were conveyed to us at meals or over drinks before and after public events. I remember to this day two pieces of information passed on to me quietly over risotto or a cup of coffee by visiting judges from Continental Europe. Professor Dieter Grimm, from the Germany Constitutional Court, introduced me to the concept of proportionality. He had come to realise that this notion was virtually unknown in countries with legal systems based historically on the British common law. He explained to me that in many parts of the world proportionality lay at the very core of constitutional adjudication. Today its use in South Africa has become axiomatic. But it was to take the Constitutional Court some years to accustom the legal community to shifting away from judicial review based on categorical and classificatory reasoning, to adopting a methodology centred on the proportionate balancing out of competing interests.
Then, Issy Foigel, a Danish Judge on the European Court of Human Rights, captivated me over dinner one evening with a surprising discovery he had made while sitting on his Court. It was completely divided, he told me, with judges from Southern Europe basing their decisions on distinguishing between right and wrong, while judges from Northern Europe saw their function as being to balance out competing principles of right and right.
Many American jurists came to our shores. What was striking was the diversity of their styles and rhetoric. A very lively group of Critical Law professors, Kimberlé Crenshaw amongst them, advised us bluntly and dramatically to tear up the American Constitution and throw it into the wastepaper basket. One of them intoned: ‘We, the people er… We, the white people er… We, the white male people er… We, the white, male, property-owning people er… We, the white, male, property-owning and slave-holding people er… We, the white male, property-owning, slave-holding and grabbers of indigenous and Mexican land people… Declare…’ Our response was to say that having torn up the US Constitution, we should afterward put the pieces back together and see what positive elements we could draw from it. Nevertheless, we appreciated the passion and thought of activist lawyers who alerted us to the huge gap that could exist between the lofty words of a Constitution and the actual experience of multitudes of people living under it.
Top progressive-minded scholars from top universities delighted us with what was clearly a well-practised and highly entertaining American classroom style. Frank Michelman from Harvard, drew us into his conceptual world with quiet, well-chosen illustrations. Mark Tushnet, author of a major textbook on constitutional law, added rich nuances of his own. And Cass Sunstein, from Chicago, had a particularly pungent way of holding our attention: “There are two words that always capture my attention,” he told us. “The one is ‘Daddy!’ and the other is ‘Lochner’.” Interestingly enough, I mention in passing, it was not his pedagogic brilliance, but a throwaway sentence of his that was quite unwittingly to have a major impact on the development of legal doctrine in the South African Constitutional Court. Somewhere in his writing he emphasised that the first bar for duly adopted legislation to become constitutional was extremely low - all it needed to do was to serve some rational purpose and not be a naked preference. In a judgment I was later to write with two colleagues (Prinsloo), I cited this statement to prove how low the bar was. Little did I realise that a decade further on these rather banal words would lead to the development by the Constitutional Court of what came to be called ‘rationality jurisprudence’. In a period of blatant corruption and malfeasance at high levels in government, the Court used the principle of a need to serve some rational purpose as a major instrument for dealing with manifestly abusive use of Parliamentary and Executive power.
Frank, Mark and Cass, we all benefitted enormously both from their thought and their intellectual bravura. These top American academics from top American universities, immersed us in the major jurisprudential debates in the USA at the time. They urged us in South Africa to reject the conservative positions and adopt the more progressive ones. We loved their ebullience and sense of certainty and learnt an enormous amount from them. Yet, the two legal personalities who were to have the biggest and most lasting impact on us were two quietly spoken law professors from what to us was a little known American university. It was called Northeastern University School of Law and they were Margaret Burnham and Karl Klare.
Margaret, a long-time leading African American supporter of the anti-apartheid struggle, was invited by the ANC to serve as one of three members of the Motsuenyane Commission in the early 1990s in South Africa. Its function was to enquire into allegations of abuse of captives in ANC camps in Angola during the years of the armed struggle against apartheid. The Commission’s Report, co-authored by Margaret, found that there was strong prima facie evidence of the use of torture and other abusive conduct in the camps. It recommended that appropriate action be taken by the ANC to hold those responsible to account. It was a year before I became a Judge. As a member of the 80-strong National Executive Committee of the ANC, I took part in a heated discussion, strongly supporting the recommendation. This was in 1993, and we eventually decided that these allegations should not be dealt with behind closed doors by the ANC as an internal matter. Rather they should be considered as part of a comprehensive public examination, to be conducted after our first democratic elections, which would include all violations of human rights from all sides in the conflict to bring down apartheid. It was this decision which was to lead to the creation of South Africa’s Truth and Reconciliation Commission. So, many thanks to Margaret for her role at a decisive moment in a tense and complex period where history, morality and law, came together to propel us to evolve a world-renowned instrument of transitional and restorative justice.
Karl Klare’s contribution was of a different order. Unlike his US academic colleagues who passed on to us lessons to be learnt from American experience, Karl cast his outside American eye on the South African Constitution. He did so as a legal scholar who had been active in struggles in America. He had campaigned against the testing and potential use of nuclear weapons, racial segregation, the sending of American troops to Vietnam and attacks on governments in Latin America that challenged American hegemony. He had also used his analytical skills and legal advocacy to support the rights of workers and labour unions and the claims of women for gender justice. And, of course, he had played a strong role in the campaign for US divestment from apartheid South Africa.
While his scholarly abilities could have secured for him an illustrious career in any of the top-rated law schools, he had deliberately chosen to locate himself in a law school that was strongly embedded in and linked to its local, largely working class, community. It is often ranked #1 in public interest and known for diversity, collegiality and collaboration and its practical-based co-op system where law students learn on the job. This was a law school whose success was measured not by the high fees it was able to command nor by the number of top law firms to which its graduates would progress. It was ranked by its capacity to enable people from lower income communities to develop skills that would advance their interests, the interests of their families and the interests of their neighbourhoods. It was with this experience of struggle and from this academic vantage point that Karl cast his eye on and characterised the South African Constitution.
At that stage, the few early enthusiasts for constitutionalism, now joined by a latecoming and at times reluctant mainstream of judges, were adjusting to living in a new constitutional order. Those of us who found ourselves on the Constitutional Court were workshopping furiously to develop as well as we could the intellectual tools to enable us meaningfully to apply the Constitution to the disputes that came before us. We spent time on determining the criteria for deciding whether a matter placed before us was a constitutional one which we should hear. At a substantive level, we methodically and intensely engaged with how to apply the principle of proportionality when deciding whether a legislative limitation of a protected right was reasonable and justifiable. At that stage we found that the jurisprudence of the Canadian Supreme Court in relation to their new Bill of Rights, was particularly helpful. We touched on the question of whether the Constitution applied only vertically, that is, to relations between the state and individuals, or also horizontally, that is, to relations between private parties where the state was not involved.
In doing the above, we gave considerable weight to the values set out in the Preamble and the Bill of Rights as guides to interpretation. To follow the constitutional injunction to apply international law and take account of court decisions in open and democratic societies, we studied the jurisprudence of courts from all over the world, as well as international treaties. We were very aware of the need to look at the Constitution as a whole, produced in the context of our particular history and as a means of engaging with our special social and economic problems. But, at that stage, we didn’t think about whether there was a single overarching principle that combined all the separate sections of the Constitution into a cohesive whole.
The person who sought and found this overarching principle was Karl Klare. He called it transformation. In fact, it was he who introduced the term transformative constitutionalism into South African discourse. In fact, his article on transformative constitutionalism in South Africa itself helped to transform constitutional debate in South Africa.
The term ‘transformation’ was far stronger and more comprehensive than ‘affirmative action’ or ‘equal protection.’ At the same time it was less cataclysmic than ‘revolution.’ It carried the notion of profound and all-pervasive changes in the structures, institutions and practices of our country. These changes, however, would not be produced by a sudden assumption of all power by one vanguard group. Rather they would be brought about through constitutionally prescribed ongoing processes involving the active and continuing participation of all the diverse groups. The law would, accordingly, be used to simultaneously both retain and disrupt the existing socio-legal order. Change there had to be. But this change would be brought about according to clearly enunciated constitutional principles applied in a law-governed way. The institutions responsible for moving the country forward would be accountable to the people through regular elections in a multiparty democracy.
The Justices of the Constitutional Court were the first people in South Africa to pick up on the value of the concept of transformative constitutionalism. After the concept was incorporated into the jurisprudence being developed by the Constitutional Court, it spread progressively through the rest of South African society. The term ‘transformation’ leapfrogged beyond the realm of jurisprudence. It became ubiquitous, connoting deep and meaningful change in relation to whatever institution or practice was being discussed. Transformation in the economy. Transformation in sport. Transformation in the judiciary itself. When black advocates challenged the hegemony of white men in the senior ranks of the legal profession, they called for transformation of the profession and named the body they set up to achieve this Advocates for Transformation. A practical outcome ensued when the term ended of two Advocates who, in terms of the Constitution, had been nominated by the profession to sit on the Judicial Service Commission to interview and nominate judges. After prolonged and heavy tussles, an agreement was reached that one new appointee would be nominated by the well-established Bar Council, and the other by the recently created Advocates for Transformation.
In his most famous and widely cited Public Lecture, the late Chief Justice Pius Langa pointed out that the need for continuing transformation had become central to the principled re-ordering of South Africa’s public life.
In referring to the need for continuing transformation of legal culture itself, he wrote
“In his article ‘Legal Culture and Transformative Constitutionalism’, Klare highlights what he terms the inherent conservatism of South African legal culture and he compares it with what he believes it should be. "Conservatism" in this context applies to a jurisprudential approach, not a political outlook. When he talks about "legal culture", Klare is referring to "the professional sensibilities, habits of mind and intellectual reflexes" of lawyers or those ingrained ideas about how the law works and what arguments are and are not convincing. Our recourse to this culture is often subconscious as it is such a basic part of how we approach legal problems.
“According to Klare [citation given], there is a tendency to follow a formalistic or technical approach to law. He sees this approach to legal interpretation as ‘highly structured, technicist, literal and rule-bound’ as opposed to the ‘policy-oriented and consequentialist’ approach that he favours.”
Significantly, the late Chief Justice continues to use Karl’s word ‘transformation’ as the key to enabling South Africa to overcome the multiple forms of inequality and injustice still afflicting the country. He states that transformation applies not only to the Judiciary but to all arms of government. He also emphasises that transformation is not restricted to the immediate period of transition from apartheid to democracy. In words that could be applied aptly to this milestone for Karl, he concludes “These then are the challenges that I see facing transformative constitutionalism: access to equal justice, legal education, legal culture, maintaining the separation of powers while ensuring that all arms of Government work together, and reconciliation. Can we overcome these dilemmas? I do not know. But I take solace in the idea that perhaps rather than obstacles, these factors can be viewed as enabling conditions for transformation. For as long as they exist there will be a drive to overcome them, there will be a tension that keeps alive the idea that things can be different. When all the challenges are gone, that is when the real danger arises. That is when we slip into a useless self-congratulatory complacency, a misplaced euphoria that where we are now is the only place to be. That is when we stop dreaming, imagining and planning that things could be different, could be better. That, for me, is the true challenge of transformation.”
Most people I know in South Africa today are about as far from being complacent as anyone could be. I suspect the same applies to my friends in the USA as well. But the necessity for permanent transformation, whether in fair weather or foul, continues to resonate in both our two countries.
Thank you, Karl. Thank you for engaging with us with your fresh, supportive/critical scholarly eye and with your warm, humane and vigorous heart. Thank you for the quiet, modest and thoughtful way in which you introduced us to, and burnished, the notion of transformation, and helped us to transform our own thinking.
Cape Town, 17 June 2022
Labor of Love: Celebrating Karl Klare’s Vision and Advocacy
On Friday, April 8, 2022, Northeastern Law hosted a full day celebrating Karl’s magnificent achievements — past, present and future. (He is not retiring!) Our extended conversation provided an opportunity for all of us to reflect on many of the topics upon which Karl’s imprint will be long lasting and to share our mutual admiration for a giant in the legal academy.
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