The Constitution-Building Account and Newness

Key to understanding the Court’s work is the idea of newness.Footnote ⁸ We can imagine a hypothetical stable and settled constitutional system, one in which the constitution is old and familiar and where no major social changes have raised questions about what the old constitution means in a new kind of society; one in which everyone is mostly accustomed to complying with the constitution and keeping to its well-worn paths. In such a society, any operative part of the constitution will be associated with familiar understandings, settled expectations, an existing infrastructure with procedures and officials for its enforcement, and so on. For a constitutional court charged with enforcing a text in this context, the tasks of constitutional design and giving effect to that design represent largely completed work. When a judge resolves a case, she will need to give little or no thought to larger institutional questions or how to give effect to her order beyond getting the familiar functionary to put it in the proper file. The judicial role would consist almost entirely of the adjudicative function emphasized in traditional accounts of the separation of powers.

The more we move along the spectrum towards more unsettled, unstable constitutional systems, the less all this is true, and in such systems I describe the law as displaying characteristics of newness. Law that is new in this sense is law that is not accompanied by settled understandings, familiar expectations and institutional frameworks with established procedures and officials who are accustomed to them.

This is a matter of degree. For example, even familiar laws with established infrastructures will display some characteristics of newness if the aspect of society to which they apply changes in some significant way – the classic situation in which the law evolves in response to changing social needs or views. In South Africa, where the Constitution self-consciously goes out ahead of society and leaves many of the implications of this to be worked out, constitutional law is often a great deal newer than this. And in a hypothetical maximally new system, a judge asked to enforce a piece of text would be unable to take for granted everything that the judge in the hypothetical maximally settled system can assume when she simply hands her judgment to the clerk. The responsibility of enforcement will necessarily implicate large questions of the constitutional design and how effect is to be given to it and by whom, and these questions would dominate any act of adjudication. To the degree that aspects of a particular legal system are new, its enforcement will tend to involve tasks beyond the traditional adjudicative function and the role of the Court charged with enforcing the text will require rethinking accordingly. Newness, finally, is a state that can shift over time. It denotes a contingent property of social understandings and structures and processes, and so any institution or person can do work to try and make an idea more established and less new. New legal protections can become settled and entrenched, and their judicial enforcement can become easier and more routine, but this is not inevitable. The work can go undone, or it can fail and the point can stay unstable and contested, or new social needs or forces can re-unsettle a point that was becoming less new.

The best way to understand constitution-building, in a legal system like South Africa’s that has displayed considerable (though far from total) newness, is in terms of this notion of doing judicial work in a context where law is often significantly new but can be made less so. The degree to which ideas display newness will be crucial to how difficult a judicial task their enforcement represents. But at least as crucial will be the question of how much support the Court enjoys when it must confront newness. The presence of other actors, inside or outside government, whose efforts can assist the Court in its work can transform the calculus of judicial action, because the real difficulties often come when a court must confront newness unilaterally.

Considerations relevant to when the court must confront newness and not, and when it must confront newness unilaterally and not, will therefore be of crucial importance to the constitution-building judge, along with more traditionally legal considerations. Two factors will be of particular importance, the second of which is really a special form of the first: infrastructure and the public status of ideas.

Infrastructure

The constitution-building judge concerned with producing results must be deeply concerned with the presence and adequacy of mechanisms for producing constitutional change in the real world. I call these mechanisms infrastructure.Footnote ⁹

Newness is deeply associated with infrastructural questions. The judge who can take for granted everything after reaching a verdict on the narrow legal issue is above all a judge who can take infrastructure for granted. Giving effect to a traditional protection like a fair trial right implies, in addition to interpreting what the guarantee means, a range of decisions about how to enforce the order and how to monitor its enforcement and how it affects the processes of arrest, incarceration, pre-trial and trial. But in a functioning legal system, all these questions already mostly have answers – there are networks of lawyers and registrars and prison officials and prosecutors doing tasks to which they are accustomed in institutions that already exist and are used to judicial oversight and direction. The fact that complicated effects-based decisions underpin all this activity can fade into the background in stable, successful systems, but comes rushing back into view as soon as we encounter any kind of systemic problem with a familiar institution. When we confront problems about how to respond to police abuses or incapacity in the prosecutor’s office or corruption by court officials, we quickly realize how tough it can be to give proper effect to a constitution without this infrastructure in place, and also how tough the problem of bringing about that infrastructure can be when it cannot be taken for granted. The challenges only deepen when one is dealing with new kinds of rights for which a legal infrastructure may never have existed. Here, infrastructural considerations may implicate not only the adjudicative function, but also the Court’s larger design responsibility.

The relevance of infrastructural considerations to the judge contemplating announcing an interpretation will be patent. But we may have difficulty seeing past the two most familiar ways in which this point is understood, which in fact by no means exhaust it. The bluntest implication of infrastructural problems is that a judge will have a reason to avoid issuing an order where it is unclear how it will get enforced. Conversely, the presence of infrastructural problems is also often understood as a reason for the Court itself to act expansively to make good the defect: it should still make the order, but invest much more effort in the remedial stage to ensure that the order is effective. These points stand, but it is the subtler implications of infrastructural factors in between these poles that I see as more important to understanding constitution-building and the South African Court’s post-1994 practice.

A willing government or other institution that can be trusted to act allows a court to delegate infrastructural questions. The epilogues to Makwanyane and to prisoner voting after August and NNP illustrate the inevitable stakes and pitfalls of this sort of decision, and we will see more examples, but the general line in the voting cases was that the Court could also successfully place reliance on other institutions primarily responsible for certain tasks. The value of being able to rely on other institutions in this way is large. The more a court can do it, the more it can act without facing the invidious choice suggested by the bluntest implications of the infrastructural argument: the choice between trying to do more itself to compensate for the absence, thus stretching judicial capacity and ability, or risking issuing an order that will not be implemented, leaving the underlying problems unresolved and damaging the credibility of the text and the Court. The value of avoiding this predicament is such that the Court has a powerful reason to support other institutions and build trust. This we saw in operation in NNP, and it is one of the most important and neglected parts of the Court’s work.

Where the official institutional infrastructure cannot, for one or other reason, be relied on to some degree, the presence of civil society groups can be vital because they can serve as temporary infrastructure. Given the tendency to view the ANC as a threat, it is no surprise that this particular aspect of the infrastructural argument is much more commonly acknowledged in the South African context.Footnote ¹⁰ The Treatment Action Campaign (TAC) has already entered South African constitutional legend, and it played a well-known role in assisting with the monitoring and implementation of the Court’s order in TAC, which I will discuss in Chapter 8. The general point illustrated by that case is that a reliable and effective civil society body is an actor to whom the Court can delegate infrastructure-related work if need be, and so its presence can transform the calculus of judicial action. But while this form of temporary infrastructure is popular and well known, two important points need to be added to it. One is that much of the way that we understand the work of civil society bodies (and much of the reason that their role is fashionable) comes from the context of impact litigation. Whether we are thinking about lawyers fighting for justice against the apartheid government, or civil society bodies around the world trying to produce change in status quos they deem unjust, we most commonly understand the work of these actors in a context where they are prodding change forward and where, absent their work, that change may well not happen at all. The most commonly discussed aspects of the work of the Treatment Action Campaign, which is in turn the most prominent South African example, are usually understood in these sorts of terms. This can encourage a view of the lawyer as combatant, with the state as the enemy and the Court as the potential guardian, if it can just be convinced to act. Sometimes, that is a perfectly good way to think, in South Africa as elsewhere. But as noted in the previous chapter, post-apartheid South Africa features a government with much more just intentions and much more electoral legitimacy than its predecessor, and in that context the paradigm of impact litigation is not always the most accurate one. Legal talk rightly remains a means to protest injustice and express anger, but just as a politics of protest is not enough for nation-building, so a scholarship of protest is not enough for constitution-building.Footnote ¹¹

This is especially true because even in situations where the government does present an obstacle to change for some reason, and the Court and civil society find themselves having to respond, temporary infrastructure is usually just that, and this is the second point. Effective social change usually requires the government. Wherever one stands on the debate about the effects of Brown v. Board of Education, it is beyond argument that a great deal of what the civil rights movement achieved and the changes that followed Brown and other cases were produced by non-judicial government action.Footnote ¹² The example of the Treatment Action Campaign, too, lends support to this point. Its leaders, who have a good claim to be the most successful strategists of social change in post-1994 South Africa to date, recognized the need to be able to work with government. They therefore co-operated with it where they could, and emphasized the need to keep open the possibility of future partnership even in the midst of the most antagonistic disagreements.Footnote ¹³ This sort of consideration has important implications for how the constitution-building court uses temporary infrastructure. Any use of temporary infrastructure is potentially a missed opportunity to build trust and permanent infrastructure, and while that will sometimes be an unavoidable if the government is not acting in a manner that merits trust, it is nevertheless a cost. As a result, while the constitution-building court will often have a reason to rely on temporary infrastructure, it will also often have a reason to try to do so in ways that are complementary of permanent structures, or that conduce to the continued ability and willingness of those structures to support the court going forward. That will be especially true where the impact litigation paradigm is misleading and the government is something more than just an obstacle.

It is perfectly possible to take an absolutist position, and argue that even these more fine-grained sorts of infrastructural calculations are inconsistent with the judicial role and should play no part in how judges interpret the law and decide cases. But there are reasons to question this absolutist position on constitutional grounds. After all, such considerations are standardly deemed relevant in remedial decisions, so why should interpretation itself be any different? NNP will help us understand this point. What we saw there was that many of the decisions at the interpretation stage were influenced by institutional considerations. Rulings about burdens of proof and thresholds for when a court will interfere in another institution or permit others to do so (recall the question of the standing of an opposition political party to enforce the Electoral Commission’s independence, for example) are, in part, about the relationship between courts and other actors going forward. They are about realizing the Constitution in the world, and more specifically about realizing the parts of it that are about institutions and their functioning. This shows the tenuousness of separation strategies that try to draw a distinction between the interpretative stage and the remedial stage, in order to claim that strategic and practical judgments and social and political considerations are appropriate only at the latter stage.

The precise reason for attacking the distinction between the interpretative and remedial stages follows from the discussion of newness. In a system that does not display significant newness, where infrastructural questions have settled answers, the only thing riding on a novel question of interpretation is whether the text means what the applicant alleges it means in a particular case. The more a system displays newness, however, the more any interpretation is also a decision about institutional relationships, because for the court to decide to decide a question is for it to rule that another institution will not decide that question and must obey instead, and that this will be the pattern henceforth. For the court to decide to rule in circumstances in which another institution has not yet expressed its position, or to overrule another institution that has asserted it is competent to handle the issue, is for it to make a determination about its relationship to that institution going forward. (And for it to decide to defer to other institutions in circumstances like these is for it to make a similar kind of institutional decision.) The act of interpreting, therefore, is often bound up in calculations about how to relate to other institutions and give effect to the Constitution that look a lot like remedial calculations, which are affected in just the same way by considerations of newness and infrastructure.Footnote ¹⁴ It is only if infrastructural questions are settled and trust is strong that no remedy will be necessary beyond a declaration of what the law requires, and that it will not be necessary to be strategic and make political judgments.

I quite acknowledge what this implies: if one adopts the absolutist position that infrastructural considerations and related non-traditional considerations are not relevant to the interpretation stage, then one may indeed insist on the distinction between the interpretative and remedial phases. (Indeed, one will have just stipulated it.) We can see, however, why the constitution-building judge confronting the text and its implications might not find the distinction particularly meaningful.

The Public Status of Ideas

In one sense, all constitutional ideas are created equal. They are in the Constitution, and that fact is an important public reason that can be offered as justification for upholding the idea, and an important reason for a court to do so. But in another sense, we know they are not equal. Ideas, too, display degrees of newness. Some things that can be read into a constitution represent ideas that are already strongly entrenched in a given society. Some have more political backing or historical weight. Some remain stubborn sites of contest. Some are, if anything, negatively entrenched: the dominant public status of the idea is its rejection. LGBTI equality is the global example of the moment of an idea whose public status is moving from negative to positive in many places, to different degrees from issue to issue.

I shall refer to these properties as the public status of ideas. Infrastructure and the public status of ideas are, of course, closely related and often correlated: if ideas matter in society, this will often have an effect on government and civil society structures, and conversely the presence of government or civil society activity structures will affect the public status of the ideas involved. One can usefully think of public status as a species of infrastructure, because a set of familiar or politically supported ideas that can be invoked in favour of a ruling can greatly assist a court just as concrete infrastructure can. However, some special considerations apply to the question of public status and so it can be helpful to talk about this factor separately.

The most traditional view here, again, is that public status is irrelevant: the constitutional status of an idea is all that matters, and all parts of the constitution should be enforced the same regardless of socio-political factors. We saw this bold view in Chapter 2. But as I noted there, if we imagine ourselves as the judges, with the fresh, open-ended text in our hands, confronting the prospect of telling society what it has committed itself to, this stance might make us feel rather uncomfortably exposed. Part of this is the fear of being reckless. If one is granted a new and potentially fragile judicial authority, one will be sensitive to the need to safeguard it.Footnote ¹⁵ Roux’s work responds to this important intuition. But the idea of weighing institutional self-preservation against the protection of rights is again only the bluntest version of the point, and again it is the subtler ones that are crucial to understanding the work of the Court. NNP, after all, does not show the Court failing to protect rights in order to build its own authority (which as noted would be hard to defend legally). It shows it selecting an approach that plausibly protects rights and also builds its own authority and that of other institutions all at the same time. In light of this example, insisting that judges observe the classical interpretivist distinction and keep the sphere of rights interpretation free from other considerations looks less imperative. In fact, it shows how that insistence may prevent a judge from considering optimal courses of activity that could promote multiple goals at once, and so hamper her ability to do the complex balancing work that, according to the constitution-building account, she confronts.

Whether this sort of optimal solution actually exists depends on the constitutional politics of a society. In the blunt case in which the constitution strongly points one way and political forces and public opinion strongly point another, there may be no good options for the constitution-building court. But the reality of a democratic society is often much more nuanced than this. For one thing, as noted, the ANC has taken some positions that are supportive of constitutional ideas, including positions that run contrary to public opinion which would therefore otherwise be problematic for an emerging court to defend. This is why the ANC’s stance has been so crucial: it is sometimes what has permitted the Court to have its cake and eat it, to vindicate aspirational constitutional ideas while limiting its political and institutional risks. But even if political and legal imperatives do not align this neatly, there are many possibilities beyond the absolutist positions of ignoring politics or giving in to it. The position here parallels the argument about remedies in the discussion of infrastructure, and the separation strategy attempted there. Many scholars would prefer the court to make orders even in the absence of infrastructure, and then do the expansive, creative work to make sure these orders are meaningful. In similar vein, the classical view is that courts should make orders regardless of whether they are unpopular, startling, distasteful or alienating to the public, and then do more work outside the context of interpreting the constitution to try and soften the blow and the impact on the courts’ image. For example, there are familiar proposals that courts should improve their media relations capabilities, and that judges should make more public speeches to try and acquaint the public with their role and educate the public about their rulings.Footnote ¹⁶

If one adopts this position, then one may insist on the distinction between the relevance of public opinion to curial activity, and to extra-curial activity, just as one can insist on the distinction between the relevance of infrastructural defects to the interpretative phase and the remedial one. But as we saw in Chapter 2, at least some erosion of this absolute rule is often accepted, as when judges alter the way they write judgments with a conscious eye to its anticipated public reaction in the ways mentioned by Dworkin and Roux. If we are willing to accept at least this erosion of the distinction, we will be able to see how the judge contemplating announcing an interpretation will have reason to think about the public reception judicial pronouncements will receive and to make adjustments accordingly.

How far we are willing to go along with this argument probably depends above all on whether rights protection might be eroded as a result of judges adjusting their activities in response to social and political considerations. One of the most common sorts of reason given for thinking that rights protection is not eroded is the claim that judicial deference to action in democratic institutions might produce more enduring change. Thus, for example, at times during the pursuit of same-sex marriage around the world it has been debatable whether or not the cause would be best furthered by firm judicial pronouncements going out ahead of public opinion and other institutions, an issue we will see in the South African case as well.Footnote ¹⁷ The public status of ideas before the court can also be important because constitutionalism is at its most effective as a public activity. Public support for a court is relevant to its institutional independence and security. The legitimacy of a constitution depends in some way on its remaining a document that members of the public can think of as ‘ours’. A Court aiming to establish the Constitution’s authority will have a reason to worry about stretching the constitutional writ too far out ahead of public opinion, which is what we saw Metz being concerned about in response to Bilchitz’s animal rights proposals in Chapter 2. These considerations also matter because public opinion can in itself be an extraordinarily important piece of infrastructure for giving effect to ideas. A good deal of what the 1996 Constitution envisages entails changes to individual conduct. Full effect can be given to a range of rights and values only if private attitudes change. For example, at least in the more public spheres, racist speech is seen as unacceptable in South Africa and so is policed by individuals who react adversely to it, or is self-censored by people seeking to avoid that adverse reaction. This is a key way in which the constitutional ban on discrimination is enforced, and it is when this kind of enforcement mechanism is absent that racism, and other kinds of discrimination, can be the hardest to target by other, heavier-handed methods. As the late Chief Justice Langa put this point in a closely related context: ‘Reconciliation and forgiveness are beyond the power of the law. We cannot legislate reconciliation and we cannot order forgiveness.’Footnote ¹⁸

These considerations mean that courts will also have a reason to relate to the public in ways that serve to promote the relationship, just as they have a reason to approach other institutions with trust so as to build infrastructure and promote the judicial ability to rely on it. We can expect that the public will be a less effective constitutional institution if they think of the Constitution or the Court’s interpretations of it as foreign or distasteful, an elite exercise, or simply something with unwelcome consequences. Again, the bluntest implication, that the Court should not make unpopular rulings, is less interesting than the subtler implications about how the Court might try to shape its actions in light of this important concern. It will give the Court a reason to choose its moments to be bold, to select reasons and argumentative strategies with care, and to make full use of supportive government activity.

The final point is that if the public’s stance on an issue matters, then it also matters how visible the public status of an idea is to the Court. The judge contemplating announcing to society that it is committed to something will want to know something about the reaction of the audiences out there, and this might be uncertain. Given the breadth and ambition of the 1996 Constitution, it is sometimes not especially clear how the public would react to a particular constitutional commitment. This state of uncertainty will generally give a court a reason to be cautious, just as (to borrow the climate scientists’ metaphor) one will have a reason to go slowly if one is driving near a cliff in a fog. It will make support from the public’s representatives of particular value. And it can make the role of social movements especially important. Charles Epp has famously argued that social movements can trigger rights revolutions by getting courts to act.Footnote ¹⁹ The most obvious hypothesis to explain this causal relationship is that social movements jolt judges out of their contented status quo, and effective social movements can also, of course, do work to alter social opinion on an issue and so bolster its public status. But I would also offer the hypothesis that social movements, by raising an issue and compelling others to react to it, might simply make the public stakes of an issue clearer to courts, so that they can approach the issue with more precise knowledge of how judicial intervention needs to be handled.

An Illustration: HIV/AIDS Discrimination

An example will be helpful here to illustrate how these types of considerations can impact on the work of the Court. Hoffman v. South African Airways (‘Hoffman’) shows the court confronting the newness of an issue in a case that is more ordinary and typical than Makwanyane, and that also involves simpler and more familiar institutional calculations than NNP. The case arose because the airline in question refused to employ Mr Hoffman solely on the basis that he was HIV-positive. The judgment found for the applicant in strong terms and has been well received; I seek only to note to a few pertinent points.Footnote ²⁰

The case saw the Court doing quite a familiarly judicial thing – regulating discrimination in the workplace – but in relation to HIV/AIDS, a disease still (and especially at the time) working its way from being a subject of stigma and fear and a symbol of irresponsibility and ‘deviant’ sex to being a category for legal protection. The issue of its constitutional status therefore displayed some degree of newness (as is reflected in the fact that the decision is considered a groundbreaking one). Hoffman takes a strong stand on this contentious, sensitive social issue on behalf of a vulnerable minority group. Indeed, the Court’s stand is stronger than was necessary to dispose of the case: the judges chose to skip over the first, rationality stage of the equality enquiry in order to make the stronger finding that the airline’s actions constituted unfair discrimination.Footnote ²¹ (This is particularly important because HIV/AIDS is not included in the Constitution’s list of presumptively unfair grounds of discrimination, so the finding represents an important extension of equality protection to those living with HIV.) The Court also strongly resists the idea that commercial interests or the prejudices of customers can be a basis for justifying discrimination against people living with HIV and AIDS.Footnote ²² This firmly upends some of the innocent-looking rocks under which prejudice can hide. An examination of pre-Hoffman High Court decisions on HIV and AIDS shows how some judges could also treat the disease with suspicion and distaste and could permit the exclusion and differential treatment of people living with it as a result.Footnote ²³

Hoffman, then, seems to be everything supporters of the first Makwanyane story could want. And the Hoffman Court, again, does indeed deserve credit. But the decision’s salutary stance is built on a lot of work by other actors, whose actions meant that the Court had to confront a less newness or confront it a lot less unilaterally than might otherwise have been true in relation to an issue of this kind. Government policy provides one key support for the judgment. By the time the Court decided Hoffman on 28 September 2000, the ANC government had instituted a number of important protections for HIV-positive persons, which the Court could refer to in a long footnote as authority for the proposition that HIV-positive persons ‘enjoy special protection in our law’.Footnote ²⁴ A glance at the list shows the particular relevance these existing instruments had to HIV/AIDS issues in the context of employment and the workplace. Hoffman could therefore situate itself squarely in line with a clearly expressed policy trend from the ANC government. These legal instruments, in turn, mostly had their roots in work done by the South African Law Reform Commission, especially after 1997, and their spirit is to be traced back still further to the work done by legal scholars in the early 1990s and positions adopted by key actors during the negotiations.Footnote ²⁵ The NP government and the ANC formed the National AIDS Co-ordinating Committee of South Africa (NACOSA) in October 1992, and it produced some salutary policy proposals, with meetings proceeding even at times when the broader constitutional talks were suspended.Footnote ²⁶ These proposals were generally stillborn, but ‘[the Committee’s] legal ideas were a significant exception’.Footnote ²⁷ At the request of the Department of Health in 1993, the Law Commission set to work, and its proposals over the next decade laid the groundwork for the government’s responses to AIDS in the workplace, in education, in relation to testing and in the context of discrimination more generally.Footnote ²⁸ At the same time, work was being done to alter the public status of the idea. Key individuals were advocating human rights-based approaches to the epidemic. Cameron, himself an obvious hero of this story as the first openly gay and HIV-positive person to hold high public office in South Africa, highlights the stance taken in 1992 by Ishmail Mohamed, a future Chief Justice, in support of a measured, ethical and rights-based response to the AIDS issue.Footnote ²⁹ Activists from the anti-apartheid and LGBTI equality context like Simon Nkoli and Zackie Achmat, whom we will meet again in later chapters, were forerunners in being open about their HIV-positive status and fighting stigma.

The other key support of Hoffman is consensus on the scientific evidence. The Aids Law Project (ALP), admitted as an amicus, served to bring some of this evidence to the Court’s attention, including a finding by experts that the Project had engineered as part of an earlier Labour Court case.Footnote ³⁰ The Hoffman Court took a robust stance on the scientific evidence, overturning a number of findings of fact made by the court of first instance.Footnote ³¹ The most critical thing underpinning this stance was the consensus: even South African Airways’s own expert did not contest the evidence, and so much of the case was not really in dispute by the time it reached the Court.Footnote ³² The Court did not in fact need to resolve any factual disputes between the parties, and it could firmly rely on scientific evidence in finding the applicant fit for flight service. This consensus is of considerable significance, because the newness of an issue can mean that pertinent details about it, which courts are not usually in a good position to resolve, are unsettled. If the Court had confronted a genuine dispute of fact about whether HIV-positive flight personnel could safely take the necessary vaccines, for example, it would have been much more difficult for it to order responsibly that airlines could not refuse to employ HIV-positive people. These features of the case supported its boldness. Like Makwanyane, Hoffman is a minority-protecting decision that is nevertheless not counter-majoritarian in relation to the stance of the government. It is also a bold decision in a technical, policy-laden area that does not involve the court independently having to make any bold, technical, policy decisions.

The final observation to make about Hoffman is that, on the subsidiary issues that lacked the same foundations in existing policy, public work and scientific evidence, the Court’s boldness was replaced by restraint. The Court declined to express a view on the issue of HIV testing as regulated by labour legislation, which had been raised for the first time in the Constitutional Court, on the grounds that Parliament had created the Labour Court as a specialist tribunal to deal with labour issues and it should deal with the regulation of testing in the first instance.Footnote ³³ (The question did indeed require some working out in the Labour Court after Hoffman.)Footnote ³⁴ The Court also avoided making further general pronouncements on discrimination and disabilities in the workplace, beyond the obvious symbolic import of its findings specifically on HIV and AIDS. The ALP, as amicus, had expressed significant reservations about treating HIV-positive people as ‘disabled’ for the purposes of the Employment Equity Act.Footnote ³⁵ The Court’s avoidance may reflect agreement on this point, but it is more likely that the Court simply felt it better not to speak on a complex issue given that other actors were engaging it. Thus in line with what we saw in NNP, the Hoffman Court is making careful institutional judgments about when and when not to assert its jurisdiction. This reflects a further luxury that a Court enjoys to the extent that it does not have to confront a new issue unilaterally. In Hoffman, the Court could be confident that government policy instruments were progressive, that there existed a labour court structure charged with giving effect to those instruments, and that civil society groups like the Aids Law Project were active in the area. This not only meant that it needed to give little thought to infrastructural questions in relation to the issues it did decide. It also meant that the Court had some room to tailor its intervention to the places where it was least risky. It could be quite confident that leaving issues undecided in this way would not come at the cost of their neglect, because they could be left to other institutions and actors who were apparently engaging with them productively.

The Text and Its Questions: Constitution-Building as a Constitutional Argument

So far in this chapter, I have simply been describing the Court’s work. But in line with the arguments of Chapter 2 I also aim to take this work legally seriously, and in concluding this chapter I seek to show how the constitution-building work I have been discussing can be understood as an implication of the text, and how the tasks constitution-building involves can thus be seen to rest on a powerful constitutional argument. This argument is largely not a matter of explicit textualism, reflecting the fact that, as we saw in the previous chapter, the drafters did not always pay a good deal of attention to the details of the Court or its role. Instead, it is an argument about what the text leaves open and the work that it therefore implies needs to be done by an institution charged with its enforcement. That potentially applies to every constitutional institution, not just the Court, but it means that if and when it falls to the Court to enforce a particular aspect of the Constitution the Court impliedly has the constitutional duty to do that work, or at least is permitted to do it if that is what is required to ensure that the Constitution is enforced.

Because the argument can apply to other institutions as well, it falls short of being an argument that the Court in particular must do this work and this can make it easy to stick to old habits. It is often possible to respond to the openness of the text by falling back on a traditional conception of the judicial role: the text implies that certain things must be done, some of them by the judiciary and some of them by other actors, and the way to decide which is which is with reference to a traditional conception of what courts should so and should not do. This kind of thinking is the chief concern of arguments about the constraining effects South Africa’s traditional legal culture can have on constitutional work. Such an approach reads the Constitution in light of a rather limited judicial tradition instead of using the Constitution to challenge that tradition and re-imagine the judicial role. Everyone knows what a court is, but an old court asked to perform new tasks will be a new court, and it is in this spirit that we should approach the text and the work it implies needs doing.

As a starting point, consider s 172(1)(a).Footnote ³⁶ In this section, the judge will find quite definite guidance about her job: judges are obliged to declare invalid law or conduct that is inconsistent with the Constitution. That of course leaves the not unimportant question of whether something is inconsistent with the Constitution. But the section is nevertheless quite definite in the sense that it tells a court what question to ask and what to do when it has answered that question. By way of comparison, consider what the text says about the judicial task in the following subsection, s 172(1)(b).Footnote ³⁷ Once unconstitutional law or conduct has been declared as such, the courts have the power to order any remedy that is just and equitable. Presumably, that requires some kind of action to bring an unconstitutional situation into line with the text, but it is left to the courts to make the causal judgment about what will best achieve this. Thus, in addition to the interpretative decision about whether there has been a departure from what the Constitution requires, this section implies that the Court must make a further, practical decision about how to bring the world in line with the Constitution. Something analogous can be said about ss 8(2) and 39(2), which oblige the courts to interpret, and if necessary to develop, the common law and customary law to give effect to the Bill of Rights and its values. That implies that courts should make judgments about what the rights and values mean and whether the existing law is consistent with this meaning, but also causal judgments about what to do to vindicate this meaning when some inconsistency is found. They must ask, for example, whether it is enough to announce a re-interpretation of an existing rule and rely on others to learn about the gloss, or whether the rule itself must be rewritten, and if so whether the court can do the re-writing or whether the legislature or someone else should do it instead. These arguments will be familiar enough, but I pause to underline the practical concern with producing certain effects or results they display. Where s 172(1)(a) apparently requires a declaration of invalidity to be made regardless of its consequences for general constitutional ends, ss 172(1)(b), 8(2) and 39(2) instruct courts to bring about constitution-serving results: just and equitable vindication of its provisions, and effect to its values in other bodies of law.

In fact, s 172(1)(a) is unusual in seemingly removing this kind of judicial discretion. The section stipulates that it is never constitutionally good for unconstitutional conduct not to be declared as such, but this kind of purportedly absolute rule is rare in the 1996 Constitution. The strict rules on the Court’s obligations in relation to certain mechanisms for abstract review during legislative processes are another example, but beyond that, instances are hard to find.Footnote ³⁸ Generally, the text leaves space for judicial discretion to do what will best serve constitutional ends, and the Court has further reserved as much of this discretion for itself as possible, even in areas where the text is comparatively prescriptive about judicial obligations. For example, the Court has recognized the clear restrictions on judicial review of bills still passing through the legislative process, but otherwise has reserved its right to do what best serves the interests of justice in relation to legislation before it comes into force (while subjecting that power to intervene in the legislative process to very heavy fetters).Footnote ³⁹ Constitutional Court confirmation of a lower court’s invalidation of legislation or presidential conduct is required if the confirmation is to have any force or effect, but the Court has ruled that this only means that lower court rulings will not have force unless they are confirmed, not that the Court is obliged to hear confirmation cases.Footnote ⁴⁰ Indeed, we saw the Richter Court reserve discretion for itself even in relation to s 172(1)(a), despite the apparently clear wording, deciding not to pronounce on a constitutional issue where this might affect the administration of an election.

All this may look like an argument for expansive judicial authority, and so may seem odd coming from an opponent of court centrism. But the question left open by the text, of how to produce results, cuts both ways: it can leave room for court action, but it can also be answered in favour of other institutions. We saw the NNP majority defer to other bodies on the decisions about means to give effect to the right to vote, while also making its own decisions of this kind – about certain approaches to judicial review, the burden of proof, and the rules on judicial orders for the collection of additional evidence as means to the establishment of a sustainable model of judicial review. It was also making decisions about means to promote the end of the Electoral Commission’s authority. And so on. Both the decisions on which it deferred to others and the ones that it made are similar kinds of practical judgments about what would best move the world towards what the text sets out.

Note, however, that NNP did not make these kinds of decisions in terms of the explicit empowering provisions in ss 8(2), 39(2) or s 172(1)(b), none of which are implicated by the decision. Hoffman also made several decisions of this sort that were not part of the order it made in terms of s 172(1)(b), including, most obviously, the decisions not to make an order in respect of certain issues. From where, then, does the duty or authority of courts to make these sorts of judgments arise? The most direct answer is the s 165(2) duty of the courts to apply the Constitution.Footnote ⁴¹ But that answer simply shifts the focus to the question of what applying the Constitution entails. Why precisely does the text at large prompt the need for the Court to make these sorts of judgments, or to find answers to them in the judgments of others? The answer lies in the text’s undoubted purposivism, a familiar point but one whose full implications merit comment here.

Purposive Text and Results-Driven Constitutionalism

A purposive text contemplates change and the bringing about of results, and those things in turn imply consideration of the sorts of factors I have been discussing. Any action done in terms of the text is supposed to be done in furtherance of its values, and so an interpreting judge will have a general obligation to ask whether a particular judicial action actually serves to advance the text’s values or not. The overall textual embodiment of this point is the sometimes-neglected s 1, setting out the founding values of the Constitution.Footnote ⁴² The courts have not quite come to terms with its role, but I have argued elsewhere that the best way to make sense of s 1 is as a source of descriptive principles. They describe the most important values that the 1996 Constitution is supposed to further, and the effect of that description – when s 1 is read in conjunction with s 74(1), requiring a special super-majority to amend s 1 – is to super-entrench the parts of the text that give effect to those values.Footnote ⁴³ Here, the significance of this argument lies in its implication that s 1 raises a constant question about whether an interpretation or action in terms of the text vindicates the constitutional description of the text in s 1. It imposes a duty to ensure that the description is vindicated whenever constitutional activity engages the values set out in s 1, and that in turn implies the need for practical judgments about the consequences of particular judicial choices. Several other sections of more specific application than s 1 also impose value-based obligations of this variety.Footnote ⁴⁴

This utilitarian-sounding account of purposivism may startle, as may my general concern in this chapter with results. But I am not proposing that all law-based social reform is about consequences, in the manner of a Jeremy Bentham, and I am not claiming that we can or should reduce constitutional law to a utility sum or a rational choice calculation in some reductionist version of law and economics. Nor, as the arguments of Chapter 2 made clear, am I arguing along with some of the legal realists that we should put away doctrine and just do social science. Instead, the claim is one exemplifying the best of movements like legal realism and law and economics, which is that the point and worth of many legal practices has a great deal to do with their effects and that these are accordingly worth trying to use to understand and reform legal activity. To worry about results is not to be unprincipled; to the contrary, it is to show the deepest concern that principles are actually realized.

The point is worth emphasizing, but it is not all that startling or novel. Ran Hirschl calls our attention to the important fact that most constitutional claims are really empirical ones, even though scholars do not always think of them that way. Evaluating a constitutional arrangement – such as how to balance ideas of judicial review and democracy – is often a question of ‘the nature of its substantive outcome’, a matter of whether it ‘has produced or is likely to produce practical outcomes closest to the meaning of social justice’.Footnote ⁴⁵ Hirschl makes his point about these largest-scale questions, but the same logic applies generally. We already accept this idea, for example, in relation to affirmative action. Although Hirschl is right to note that Dworkin does not generally rely on empirical evidence for his broader claims about judicial review, affirmative action may be the best example of an area where Dworkin does do this.Footnote ⁴⁶ In Sovereign Virtue, he rests his defence of affirmative action on the consequences it produces and in particular on a large-scale empirical evaluation of 30 years of affirmative action policies in US universities that identified a range of positive effects.Footnote ⁴⁷ His argument fits our intuitions: no-one would defend affirmative action if it didn’t produce certain results, and the same is true of many other policies. South African constitutionalism must confront an array of practical questions in the context of trying, for example, to tackle poverty. This is a general consequence of constitutionalism in modern welfare states, but as we saw at the beginning of this chapter it applies to many other aspects of the Court’s activity. Justice Sachs’ desired theory of when must be in large part a theory about what effects an intervention will or might have in a particular case.

Purposivism in the South African context is usually understood in terms of giving effects to rights and values. We are familiar with the idea that the constitutional text is aspirational in this regard, and that when it refers to rights that persons ‘have’ and the values on which the state ‘is’ based it is referring to a significant extent to states of affairs that still have to be brought about. But it is important to see that this applies equally to all parts of the Constitution. It is possible to imagine a constitution that is not institutionally new, meaning that the structures and arrangements it refers to are all already in functioning existence, but the 1996 Constitution is not in that position. It is institutionally aspirational as well. The stuttering beginnings of many of the newly created Chapter 9 institutions may offer the most obvious illustration of this.Footnote ⁴⁸ But it is true of arrangements that are much more traditional, too: this is, after all, a state in which constitutional supremacy is new and in which its entrenchment across the full scope of potential judicial action is not a foregone conclusion. Thus, as we saw, NNP is not merely a case about giving effect to the voting right, but in truth also a case about how to do that and give effect to s 43 on legislative authority, s 190 on the Electoral Commission and the s 181(3) obligation to assist and protect it, and so on. Textually, the Court has to vindicate these provisions just as much as the right to vote, and they can produce the same effects-based questions in a context were these institutions and their institutional relationships were often still unsettled. That protecting rights might be very important does not alter the fact that the Court’s responsibilities to enforce the text do not stop at the end of the Bill of Rights.

This argument can locate judicial discretion about practical effects in relation to any provision of the text, even one like s 172(1)(a) that apparently forecloses judicial discretion. Interpreted purposively, the section’s injunction that judges encountering unconstitutional conduct must make a declaration accordingly is about a rule of law state policed by courts. Insofar as that kind of state is not yet entrenched, and partly represents an aspiration, how is this purpose to be served? The standard position – which is an answer to this question whether it acknowledges it or not – is that courts should not consider this issue, but should fearlessly declare all unconstitutional conduct as such. That answers the question by leaving it up to political actors and their supporters to establish the rule of law state by respectfully accepting the Court’s rulings. Conversely, a familiar political science position is that courts might wish to avoid making orders when there is a good chance that they will be ignored and the finality of judicial decisions will be called into question as a result, or, more actively, when they may provoke attacks on judicial authority, constitutional supremacy and the rule of law. In light of the discussion of other absolutist positions earlier in this chapter, however, we can again see that other answers might be possible. The standard legal position is willing to make some limited concessions that reflect a concern with effects, such as the suggestions about media relations, judicial public appearances and phrasing of judgments considered earlier. Here, the purposive arguments that can be linked even to s 172(1)(a) are most readily linked to the point about trust made in Chapter 3. I argued there that existing accounts tended to miss the general significance of trust when they applauded President Mandela’s authority-building reaction to court rulings in Executive Council and SARFU but failed to note how the majority in NNP was doing the same thing in relation to other institutions.Footnote ⁴⁹ If part of giving effect to the Constitution is establishing a system in which the Court makes the final decision about the constitutionality of presidential and other conduct, then building institutional relationships and trust such that the judicial authority to do this will be accepted and respected will be a legally relevant consideration in everything the court does. It means that in situations like NNP in which it is less than clear whether judicial intervention in other institutions is necessary to protect a right, there will always be a (non-decisive) reason to express trust and establish the judiciary’s bona fides as an actor that exercises its powers responsibly and respectfully.

Just how far such arguments can be taken is, of course, the key question for the constitution-building court, and one that depends heavily on context. I suggested that the constitution-building pieces fell rather neatly into place in NNP. We can now see that what I meant by this was that it was possible to find a plausible way to give effect to all the different pieces of relevant text at once. That will not always be so: sometimes judges will face harder choices, and there will thus be more contentious debates about whether the balance struck is compatible with our constitutional commitments such that we are willing to ratify it as an exercise in legal interpretation, as opposed to a constitutionally indefensible (though possibly prudent) piece of strategy. The point of the argument in this chapter is only to show that the types of decisions I have discussed are inescapably prompted by the text itself. It is perfectly open for traditionalists to resist some or all of these implications of the text, using arguments about what the judiciary should and should not do, and by insisting on absolutist distinctions like those I have noted. But we can now see that this is just one response to an open-ended text, and not obviously the best one. This is the result I sought in Chapter 1: 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.