South Africa’s constitutional democracy has been in place for close to a quarter of a century. Given the global antagonism to the institutionalized racial capitalism which underpinned the apartheid regime, the move to freedom was justifiably celebrated and the performance of its successor government closely observed. It can fairly be said that the reports were good to glowing, particularly in the first dozen years or so, although the luster has undoubtedly been tarnished of late. A pivotal contributor to the evident appreciation of the establishment of systems of good governance in post-apartheid South Africa has been the jurisprudence of the superior court system, led by the Constitutional Court (CC). Now the apex court, the CC has from the outset sought to lead and guide in fidelity to the values expressed and implied in the Constitution,1 not only through the administration of justice but more broadly in society. The judgments of the CC have been widely noticed internationally, not only for their treatment of “novelties” such as the socio-economic rights included in the Bill of Rights, but also for the depth of research and comparative vision which underlies most of its now several hundred judgments. Many commentators have reflected on those judgments but there have been very few systematic studies of the track record of the CC as a whole.2 In this book, James Fowkes seeks to fill this gap. The author is a graduate of Witwatersrand University and Yale Law School, who has worked as a researcher for one of the Justices of the CC, and Building the Constitution. The Practice of Constitutional Interpretation in Post-Apartheid South Africa (Building) was completed while he was attached to the Institute for International and Comparative Law in Africa in Pretoria, although he now has an academic position in Germany.3 So this is the work of a young scholar, by which I intend no patronizing qualification because, as will be seen, in my view it succeeds admirably in arguing the case it seeks to put across, and marks an important milestone in the analysis of the work of the CC. Indeed, Fowkes’s relative youth is belied by the maturity of his account and encourages him to make bold propositions which need to be in the public domain and to be engaged with by all those concerned with the work of the CC and the state of democratic constitutionalism more broadly. What is the author’s central thesis? At the outset (at 2), he states that this is “not an exercise in fortune-telling” but a retrospect- ive analysis to try to explain and to understand why some observers criticize the CC for losing its way, while others equally firmly celebrate its pronouncements. These views are, he argues, based in “deep and basic disagreements about how we should understand the legal project in which the Court has been engaged,” and he claims (at 3) that “the existing ways of understanding interpretation under the [Constitution] are inadequate to its actual operation.” This is because too many commentators focus on how the Constitution “should work rather than how it does work,” they are too “Court-centric” in their analysis, and give too little credit to the role of the African National Congress (ANC) which has dominated public governance since 1994, and whose contribution to the success of the constitutional project has been substantial. This book thus aims “to correct an imbalance” and to acknowledge the CC’s role as one (albeit vital) partner in a “significantly common exercise in building a new state and society.” Fowkes styles his (at 4) “constitution-building account” as an interpretive4 account “that can be used to explain and defend its activity in legal, constitutional terms, rather than merely the analysed factual description one might get from political scientists.” This is “not a work of legal theory, but a legal account” (at 5). He exemplifies these contrasting analytic al approaches by examining the responses to the CC’s celebrated first judgment, concerning the constitutionality of the death penalty, in Makwanyane.5 He outlines (at 6ff.) three “stories” which react to the full set of judgments in that case, the first two based on the comments made at the time, the third his own approach: that the deep public unpopularity of the outlawing of the death penalty was a safe stance; given the “counter-majoritarian” policy in this regard of the ANC itself, the justices were emboldened in their decisions. He argues (at 12) that it is better to think not of how things happened or had to happen but how constitutionalism works: “how things function, in a manner that is constitutionally appealing or at least acceptable.” Makwanyane was more symbolic than infrastructural in impact—many of the prisoners on death row were still incarcerated a decade later (at 18). Fowkes seeks to justify his analytical approach in Chapters 2, 4, and 5, having diverted into an account of “Voters’ Rights” cases in Chapter 3.6 He starts by arguing, in the title of Chapter 2, that we should be “Taking Reality (Legally) Seriously,” that (at 26) “judicial activity which takes into account political and social considerations might be better judicial activity, in constitutional terms . . .; that this includes interpretative activity . . .; and that there are therefore potentially rich rewards to taking the reality of South African practice legally seriously, [as in Makwanyane].” Delightfully, at this point the author instructs those readers who have no difficulty with this argument to skip to Chapter 3, but for the sake of the plausibility of his approach and those who need further convincing, he proceeds to cite support for his thesis in the work of Davis, Klare, Woolman, and Roux (in South Africa), and of Karl Llewellyn, Alexander Bickel, Ronald Dworkin, and Bruce Ackerman (at 38–49). Essentially, he posits that the traditional approach to the separation of powers regards the judiciary as the interpreter of law, whereas on his constitution-building approach, the CC is the “bearer of a duty to make the Constitution work” (at 30), and writes its judgments for a wider audience, at the moment of delivery (at 32). Importantly, he acknowledges (“a theory of when . . .”) that his claim is temporally specific, perhaps an important concession, and one certainly with which I can identify from my own work.7 Chapters 4 and 5 explore, respectively, the “standard conceptions” as compared with the “constitution-building” approaches to the role of the CC. They provide an import- ant review of the history of the establishment of the Court; of the argument that the CC was (and is) an important element in an “elite pact”8 ; a comparison of interpretative styles during and after apartheid; the role of the CC as “bridge-builder”; the importance of “newness” of both infrastructure/role and the subject matter of jurisprudence as aids to the constitution-building project, and equally the importance of the “public status of ideas” as the interface between public activism and organisations and judgments of the Court; and so on. These chapters provide an intensely interesting and persuasive construction of the theoretical basis for Fowkes’s central thesis, after which he concludes (at 155) that “the arguments of realists and classical interpretivists, of traditionalists and radicals, all stand alike as readings of the same text, and all stand alike to be compared as rival constitutional arguments.” The remaining chapters of this book consist in thematic considerations of groups of cases, against which the author tests the plausibility of his constitution-building approach. As I have mentioned, the first such focused chapter is 3, in which he considers several judgments concerning voters’ rights, principally New National Party (NNP).9 He chooses to start with this case as he regards it (and those like it) as the most criticized by those who argue that the CC proved too deferential to the other branches of government and thus failed to adhere to the model established by Makwanyane. In effect, he argues10 that the judgment in NNP and similar cases regarding the franchise are consistent with his constitution-building model, in that the CC inserted itself into “intra-governmental dialogue and problem-solving” surrounding the electoral process (at 69–81) and that the factual “epilogue” to the decisions shows that the CC’s position was justified. This last is a device which Fowkes employs from time to time, as part of his privileging of “reality” as legally relevant, and it is self-evidently only possible in retrospect. As mentioned, the positioning of this chapter before the two accounts of the role of the court is slightly jarring, but perhaps it is merited by the fact that it provides a stark example of a judgment which is apparently inimical to Fowkes’s approach, and so requires early rebuttal. The other thematic chapters detail the CC’s jurisprudence in the following areas: LGBTI (lesbian, gay, bisexual, transgender, intersexual) equality (6); democracy (7); socio- economic rights (8); and equality, eviction, and engagement (9). There is no scope in a review of this nature for detailed consideration of the contents and analysis presented in each chapter. Suffice it to say that the general movement across them is from the cases whose outcome is most closely aligned with the dominant positive critique of the Makwanyane set of judgments, to those which most tenaciously test the validity of Fowkes’s constitution-building metaphor. So in the LGBTI equality decisions the argument is that the CC saw itself as part of a “multi-actor cast” (including the ANC government) in reaching conclusions which are broadly regarded as socially progressive although in all likelihood not supported by the broad populace: the emerging public status of the LGBTI community played no small role in this process (at 156–163). In doing so, the CC sought to build a relationship of trust with Parliament and the executive (at 186), although in the “democracy” decisions, the CC showed two faces, one willing to intervene in the legislative process to foster public participation, while the other displayed a reticence and rather handed the responsibility to develop such processes to the legislative bodies themselves at all levels of government (at 197–216). The last two sets of decisions (on socio- economic rights and equality/evictions/engagement) present the hardest test for Fowkes’s analytical framework, which he acknowledges, for here the CC is called on more acutely to strike a balance between its role as “mere” interpreter as opposed to constitution-builder. He acknowledges that the CC sometimes may have erred in striking that balance, but that this had typically occurred in circumstances where even his own account would have expected such problems to arise. Despite this, he maintains in his conclusion to the book that even these awkward outcomes do not undermine his approach, and that the constitution-building justification for the jurisprudence of the CC stands its ground. (A few words on “technical matters”: the book includes a good Table of South African cases, a Bibliography which shows an impressive breadth of sources across several legal systems, and a useful Index. I am loath to list typographical errors but must observe that I encountered more than I would have expected given the status of the publisher and the series of which this book forms a part.11 Two rather striking instances deserve mention, however: on at least two occasions,12 the author’s last name is missing from the footnote, just his initial and the title of the book appearing; and I failed to understand the appropriateness of “Makwanyane’s abolitionist dam,”13 and “decides to decide.”14 Other than these minor irritations, the book complies with the standards to be expected.) As to substance of the thesis and arguments presented in support of it, I may not be the best critic, because it confirms much of what I have always argued about the role of the judiciary in a top court in the type of circumstances in which the CC has operated over the past twenty-four years. Perhaps it may be argued that the creation of an ex- planation based on a retrospective reconstruction of a set of judicial decisions selected for a particular purpose is not much of an achievement, yet Fowkes claims no more than that. He also specifically confines his arguments to a set of moments in history, backing them up with extensive cross-referencing to other parts of his book, and does not shy away from acknowledging aspects which do not fit his approach, without giving up on the project. I found the exposition largely persuasive, well researched, clearly and engagingly written, and constituting a constructive contribution to our understanding of what role the judicial branch of government in South Africa, led by the CC, has played over the past two decades. This account complements, rather than displaces, any of the other critiques of the work of the Court, although all observers will be compelled to respond to this account in some manner. Some will argue that he has been too kind to the ANC in crediting it with providing the supportive framework in which the CC has flourished, and current trends in public discourse may prove them right in the future, but from my experience and based on both the documents and events which the author calls in aid of his stance, it will be hard to dismiss it out of hand. Two aspects of the time-bound nature of Fowkes’s approach, however, need to be confronted. First, as he acknowledges from time to time, events over the past few years, especially under the presidency of Mr. Zuma, serve to cast doubt on the extent to which the ANC (as “natural” dominant force in party politics) will continue to adhere to the founding values of the Constitution. If its support wanes, or it becomes a direct threat to those values, and thus the role of the Court, how will that affect the CC’s part in building the Constitution? And second, and related to this point, what predictive value can we attach to Fowkes’s arguments? Many lawyers, particularly those in practice, need to be able to advise others on what to expect from the courts, with a fair degree of confidence and trust in such advice; while Fowkes’s approach certainly assists in understanding how this has functioned in the past, the nature of the party political space in South Africa at present throws the utility of his arguments into some doubt. In sum, this is a highly relevant and well-written book. I daresay that, in the context of the increasing elevation of democratic constitutionalism as the chosen vehicle of government through much of the world, often in circumstances where the “sins of the past” have to be overcome, Fowkes’s arguments deserve careful consideration by constitutional scholars in many countries. And it stands to reason that those operating in constitutional conditions modeled on South Africa (as applies in several Commonwealth African countries) will find this book particularly helpful. Footnotes * I•CON’s Associate Editor, Sergio Verdugo, acted as book review editor for this book review. Dr. Michaela Hailbronner recused herself from the process for personal reasons. 1 There have been two, the “interim” Constitution of 1993 and the “final” version of 1996, the latter adopted by the first freely and democratically elected Parliament. References to the Constitution in what follows will be to this last (and current) founding document. 2 The bibliography to this book contains references to most such commentaries. Perhaps the best-known book published so far on the CC is Theunis Roux, The Politics Of Principle: The First South African Constitutional Court 1995–2005 (2013). 3 His list of “acknowledgments” is warm and generous, even a little wacky, although I am not sure that his spelling of anonymous as “annoymous” (at xii) was intended! 4 Fowkes actually uses the word “interpretative” at this point, indeed on at least one occasion he refers to “interpretativists” (t 23) but alternates with “interpretive/ist” (at 35). I prefer the latter. 5 S v. Makwanyane and Another (CCT3/94)  ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;  2 CHRLD 164; 1995 (2) SACR 1 (June 6, 1995). 6 I am unsure of the wisdom of inserting this chapter, which is one of the means whereby he tests the validity of his approach, within the chapters that are clearly more theoretical and contextual building blocks of his thesis. 7 See my analysis of the role of the first national appellate court in South Africa in Hugh Corder, Judges at Work. The Role and Attitudes of the South African Appellate Division 1910–1950 (1984). 8 In this regard my view is that the author has paid too little attention to the negotiating processes before 1994, which led to the formulation of the transitional Constitution of 1993, but this is not a serious flaw. 9 New National Party v. Government of the RSA, 1999 (3) SA 191 (CC). 10 With much reliance on the work of John Hart Ely and Jeremy Waldron. 11 Cambridge Studies in Constitutional Law (David Dyzenhaus & Adam Tomkins, series eds. 2016). 12 At 68, Giliomee, note 52; at 114, Van der Walt, note 62. Similarly, at 270, line 10 from the top, the names of the respondents in Mazibuko v. fail to appear. 13 At 15, second last line. 14 At 252, line 3 from the bottom. © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
International Journal of Constitutional Law – Oxford University Press
Published: May 12, 2018
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