Real Respect for the Rule of Law

Abstract

Judging the Judges, Judging Ourselves is an excellent book for at least three reasons. First, it is a critically engaged, firsthand account of a unique legal and political event: the inquiry by South Africa’s Truth and Reconciliation Commission into the operation of that country’s legal system under Apartheid. Second, it develops an extended argument for a challengingly normative conception of the rule of law, complete with compelling practical illustrations of what can happen if officials charged with maintaining the integrity of a legal system adopt a less substantive standard. And third, the book is well written and a pleasure to read.South Africa’s Truth and Reconciliation Commission (TRC) represents an unusual attempt to confront, acknowledge and overcome the devastating injustice, violence and hatred generated during the Apartheid era. What makes it unusual is the conscious decision to set aside demands for retributive justice. Instead, by exposing abuses and violations of human rights, and then compensating victims and pardoning confessed perpetrators, the TRC aimed to establish a framework in which former antagonists could set aside adversarial postures and work together to create a new, integrated and just South Africa. Whether this laudable experiment will succeed remains to be seen.What was clear early on was that the TRC could not hope to complete its task if it did not investigate the performance of the legal system and the legal profession under the Apartheid regime. Apartheid was a social and political construct that systematically denied basic human rights to the vast majority of South Africa’s population on the basis of race. A substantial amount of state violence was required to secure this result. But it is a singular, remarkable fact that the racial divide was maintained by a legal system which in many respects resembled its counterparts in liberal democratic societies where the courts actively and successfully protect civil liberties. What is particularly striking is that gross human rights violations were permitted, even approved, by legal institutions that appeared to respect such fundamental legitimacy-conferring principles as the rule of law and judicial independence. Equally troubling is the observation that the system was staffed by functionaries many of whom had unimpeachable credentials as advocates of human rights. So how could this justice system have produced such iniquitous results?