The Strange Alchemy of Life and Law

My term on the Court was coming to an end. It had been so fascinating, so interesting, so full of surprises, amazing. South Africa having been the land of apartheid, the kind of the country used as the example of a horrible society with a horrible Constitution and horrible presence in the world. Now suddenly, the first will be the last, the last shall be the first. And we now have an extraordinary, progressive, interesting Constitution. We have a Constitutional Court, and I'm a member of that Court. Each case is fascinating, interesting from a human point of view. Should there or should there be capital punishment in the New South Africa? Should prisoners have the right to vote? Can Nelson Mandela issue proclamations in the way that he was doing when asked by Parliament, or should Parliament do that itself? The very nature of cases that reached the Constitutional Court were cases where the law was in doubt, where there was a tension between competing values.

Most legal work is routine; guilty or not guilty. Are you liable? Were you negligent or not? It can go one way or the other. The very nature of constitutional issues is fascinating because they deal with broad issues that affect more than just the parties to the case, and the basic role of the Court is so profound because it's not only a brand-new Constitution, but also a Constitution that is against almost everything of the past. Everything's turned upside down, and you want as much disruption as possible, because that whole society was so wicked. On the other hand, you want as much continuity as possible, so that democracy isn't associated with chaos and people helping themselves and anything goes. That tension is built into the very nature and character of the adjudication by the Court. We had to invent a whole new technology; forms of reasoning different from the approach of the judges in the earlier days was we don't make policy; we just carry out the law as determined by Parliament. So, it distances the Judges from moral, ethical responsibility for what they're doing, and they pretend they’re simply the instruments of the design and intention of others.

Now we've got a Constitution that's very intentional. The whole first portion of it is devoted to values, the preamble. We have foundational values and deep, profound pillars in terms of values of the Constitution and then the Bill of Rights, very expansive and comprehensive. A whole new value system based on respect for humanity. So, to the extent that the Court is now involved in ensuring that values are inserted into government at every level, and values are inserted into what citizens and people in the country can claim as their right

There's nothing more exciting than being involved in a project that requires intelligence, thoughtfulness, a sense of history, use of language, and collegiality. It is enthralling and tedious and hard, and details matter, and it requires massive research, knowing the record and knowing the arguments; to feel the excitement that you can get through an intellectual project that has enormous public and social meaning. And I wanted to tell that story, I want to tell the story of the Constitutional Court of South Africa. Not in a technical literary way.

We have these cases. What are the decisions? What are the arguments? What goes through a Judge's mind? What are the issues? What are the background factors that are relevant? How does it come to pass that you took a decision in a particular way, in a particular case? To share that and the experience of being a Judge with a brand-new Court, a brand-new Constitution in a country that is seething with issues and problems, massive expectations and hope, lots of pain, lots of divisions. How does that Court manage its work, frame the issues, come to the conclusions that it comes to, and disagree when we disagreed.

And I'm thinking of the issues capital punishment being debated all over the world, freedom of expression debated all over the world, the rights of homeless people, not all over the world, but in our Constitution, social and economic rights are there? What does it mean? The right to health, a huge case dealing with the provision of antiretrovirals with massive implications for the country. The powers of the president, such as President Nelson Mandela, who we loved. Can we strike down important proclamations that he issued? So, the range of the cases, the range of the issues, the way they push the boundaries of judicial reasoning, and certain core features of the functioning I felt had to be conveyed.

I also wanted to convey something of the experience of being a Judge. It's not the simple psychology of a judge, it's there were so many surprises. So how to do it? I have a sabbatical every seven years and I applied to Ford to become what they call a scholar in residence in New York. It was important to be out of South Africa, away from the Court, away from all those daily things that distract you to create space. It's not just physical space. It's like a temporal space. It's an emotional space to be in another world, and New York was like another world.

I thought writing about judgments would be so easy. We’d work very collectively and collegially. I'm writing now for the Court, not just for myself. Why is it so hard? And I remember my chapter dealing with that. I opened with the sentence, ‘Every judgment I write is a lie.’ I know it's going to grab attention. That lie is that the judgment was written in the way it appears in the final version. And in fact, most times the opening sentence of the judgment is the last sentence I write. It's when I've got everything composed and in order with the conclusion that's arrived at, and then I’ll go back to the start and say, ‘This case is about…’ And, in a sense, that's a lie. It looks as though you wrote it in the order of A, B, C, D, E, F, G, but in fact, you might have written it as D, A, C, and so on. Why was it so difficult? Once visiting University of Toronto in Canada, I'm with political scientists, and I tell them about my dilemma with this. And they say, ‘No, Albie, you lawyers won't understand. We understand. It's the difference between the logic of rationality and reason, and the logic of discovery.’ Wow, that's a discovery for myself. The reasonableness, the persuasion, the evidential support; a lot of legal work is just that; but the discovery is about how does it all comes together? What's the overriding theme that binds everything together? So that was my big discovery, and I want to convey this to other judges.

I'm also saying this strange thing: that some of the statements that I've written in my judgments that have traveled around the world came to me lying in the bath, when I'm not thinking at all, and a beautiful sentence just emerges in my head that brings everything together, and I would get out of the bath write it down before I forgot. And that fitted in with the logic of discovery. It comes from lots of research. It's not just automatic. You are dealing with the subject, you’re discussing it, debating it, writing it, thinking about it, hearing your colleagues arguing, they've spoken about it in Court, and you're just lying flat in the bath. Ping! It all kind of comes together. I want to share that.

I might mention this is one thing I'm picking out of many different chapters in the book. There was a reading group of top judges in England who wanted to use The Strange Alchemy of Life and Law for their next session, and they said they would love to discuss it in my presence. One of them spoke about that moment of enlightenment, described by writer Malcolm Gladwell as bed, bath and bus. And this judge said, ‘Bed, bath, bus and bicycle’ – places where that moment would come from nowhere.

Then there's that other core, almost existential, functional dilemma of Judges: that connection between reason and passion. Reason is implacable, one and one makes two, whether you like it or not. That's it. It's impersonal, it's outside of you. We often learnt at law school that judges must be neutral. Judges must be completely outside of the realm that they're discussing and talking about and that's a good judge. And I thought, no, we are part and parcel of the people, ordered by the Constitution to ensure that there's more justice in society. We're living in a very unjust South Africa, very unequal, very unfair in all sorts of ways. You've got to take a stand. We've inherited practices that are terrible: of using violence to solve social problems, of beating people down, of marginalising people; we've got to take a stand on that. And you're not neutral on torture, you're not neutral on abuses, you take a stand. But you are impartial in the sense that you listen to everybody equally.

So, I'm now battling with the fact that I even subjectively feel quite emotional about decisions I'm giving. Not that I want to be right, and I want to be smarter, cleverer than my colleagues and so on, but because that's what the Constitution demands. It wants a better world, and it wants people to be able to express their humanity in better ways. And it wants the institutions of democracy to function properly and well; to promote those kinds of things.

The technically interesting part that emerged for me was that the book was coming out with three different accordant registers, three different modes of telling a story. The one would be extracts from our judgments. You write in a certain way. It's very constrained, even if the language is forceful and dramatic. There's a kind of cadence and a tonality that a sonority, in a way. That's the judicial style of writing, and even if I'm saying something that might be amusing such as opening one of my judgments with the sentence ‘Does the law have a sense of humour?’ there's a kind of a seriousness in that writing.

Then there's another part of the book where I'm dealing with reason and passion; judgment and reason. It's a philosophical mode of arguing. Not as tense and tight as judicial reasoning, but not as loose as ordinary narration. This happened in the Treatment Action Campaign Case when I came out of the Court, and I cried. Not because so many people were being afflicted by HIV in South Africa, I cried because I found on a Court that can do something about it. When we wrote the Constitution, we weren't even thinking about HIV, and now we've got the possibility of doing something that enables hundreds of 1000s of millions of people to have access to antiretrovirals and it’s saving lives. The narrative of that has a different cadence. So, you've got the narrative cadence, the philosophical argumentation and reasoning, And so the book took on a structure of its own, emerging from the kinds of issues that I was dealing with.

And then each chapter had extracts from judgments towards the end. So eventually, I felt that the theme of the strange alchemy of life and law was what was working its way through the book. Life needs law, and in the case of judges, law is central to the way you are occupied in your life. But law also needs life and needs connection with life. I call it an alchemy, because it's strange, it's not automatic, and they're not spheres. There is life on the one side, there’s law on the other, and they're interacting with each other. All sorts of things influence the outcome - there's an element of mystery, of real discovery, surprise in it, and I felt The Strange Alchemy of Life and Law is, in effect, the strange me: The strange experience of being a Judge, being on a Court, when your connection with the law has been to be imprisoned without trial, to be nearly assassinated, to be part of working within the press community, dreaming of liberation, and being part of the process of writing the new values of our new Constitution.