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418 Chapter 18
too clever by half, and I welcome and commend Professor Woolman’s
expert cleanup of whatever misunderstandings I may have sown about
Davidson’s philosophical message. Since I do not take Stu to be doubting
the accuracy (as far as it went) of my restricted take on Davidson, or even
my suggestion that conscious recollection of Davidson’s ‘optimisation’
requirement 3 might sometimes materially aid us in our work as legal commentators
and since I, for my part, have absorbed unforgettably the lesson to
resist future temptations to wikipedish philosophical conceits, there
remains, I believe, no issue between us on the ‘Charity’ point.
3 On the explanatory sufficiency of the
Constitutional Court’s judgments: Thinness
Stu summons, on this point, an impressive body of supportive testimony,
which (I say it again), ‘the Court would do well to consult and ponder’. 4 My
claim in ‘Charity’ was not to the contrary. It was that (i) inadequacy of
explanation is one thing; (ii) erroneous treatment or disposition of a case is
another thing; (iii) a judicial ‘flight from substance’ is still another thing; and
(iv) the decisions in two of the cases that Stu had especially picked out for
criticism NM 5 and Masiya 6 do not support a complaint on the second and
third of those grounds. As I wrote near the beginning, to summarise the
claims I would be making:
The controlling opinions in these cases are indeed, as Woolman says, ‘thinly
reasoned’, if by that we mean they are in some respects insufficiently explained. It is,
however, another question whether these cases have been wrongly or irresponsibly
2 There are hazards ... in the way of such an approach to the construction of judicial
opinions ... [T]hese writings enjoy among us the status of utterances of law by a socially
recognised organ of authority to say what the law is. And maybe, therefore, it really does
not do for us to go about pretending the writers have said things they did not mean to say
(perhaps meant not to say), in our effort to make their writings accord with what we take
to be legal reason – it being they, after all, and not we, who are the authorised law-sayers.
I [thus] mean ... to grant up front the possible dangers from a ‘charitable’ approach, while
pointing also to some possible gains. A close examination of NM and Masiya, from a
methodological stance of all-but-last-ditch resistance against a conclusion of blatant
error, failure of nerve, or flight from responsibility on the Court’s part, can demonstrate, I
believe, some benefits of interpretive charity as a working disposition on our part – not
necessarily suited, of course, to every moment in history or every judicial performance
we may encounter. Such an examination can show how that posture may sometimes aid
us in performing our task of getting at the truth of law or at any rate – more modestly –
of developing culturally credible resources for the possible guidance of judicial
performance in the future ...
Michelman (n 1 above) 4 - 5 (citations omitted).
3 See Michelman (n 1 above) 4 (quoting Davidson Inquiries into truth and interpretation (1984)
101): Davidson ... summarises as follows: ‘We make maximum sense of the words and
thoughts of others when we interpret in a way that optimises agreement’. Davidson
meant ‘optimise’ as between thinking that the other must be holding to beliefs (and,
relatedly, aims) that differ drastically from our own (else he couldn’t have said what he
did), and thinking that we must not have heard him right the first time.
4 Michelman (n 1 above) 4.
5
NM v Smith 2007 5 SA 250 (CC), 2007 7 BCLR 751 (CC).
6 Masiya v Director of Public Prosecutions 2007 5 SA 30 (CC), 2007 8 BCLR 927 (CC).