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Rejoinder to Stu Woolman 421
(or moments of ‘judicious avoidance’) in the decisions I there discuss, 13 and to
Roux’s analysis in his ‘Principle and Pragmatism on the Constitutional Court
of South Africa’. 14
5 On ‘application’ and teachability
Back, now, to my denial of a correlation between the Constitutional Court’s
ready resort to section 39(2) and any tendency toward flight from
substance that Stu Woolman or others may be detecting in the Court’s
work as a whole. I stand, for now, on my case for denial of any such
correlation, as made in parts 3.11 and 4.4 of ‘Charity’. 15 Suppose my case
is found persuasive. The question then arises: What else of practical
import remains, that might be at stake in Professor Woolman’s
disagreement with the Constitutional Court over the right way to knit
together the Constitution’s clauses bearing on the application of the Bill of
Rights to the substantive content of the common law? 16
A part (certainly not the whole!) of Stu Woolman’s answer comes in
terms of a concern about the transparency and teachability of constitutionallegal
doctrine. To that concern, it would be true, but not quite adequate, for
me to respond that there is nothing especially unteachable about my
‘realist’ 17 account of the doctrine in at ‘Charity’. 18 You simply tell your
students: ‘In apparent opposition to what some able commentators maintain
would be a superior parsing of the relevant constitutional texts, the plain fact
is that South African courts, starting with the Constitutional Court, do inquire
into the common law’s compatibility with the several, specific, rightsgranting
clauses in the Bill of Rights (and not just into compatibility with
some residual ‘spirit’ of the Bill of Rights) while ostensibly performing their
obligations, in terms of section 39(2), to develop the common law in a manner
harmonious with the Bill of Rights.’ That account of the doctrine may, from any
given teacher’s standpoint, report a truth that is unfortunate, but unfortunate
does not mean unteachable (a fact for which every teacher, everywhere, every
day, must be unutterably thankful).
Well, thankful yes and thankful no. Unfortunate is unfortunate, teachable
or not. It would be unfortunate, indeed, to have to teach a rising generation of
South African lawyers that close and tough reasoning with the constitutional
enactments as written, along with the rest of what goes with a trained and
disciplined, lawyer-like regard for constitutional laws as presumably carefully
13
See Michelman (n 1 above) 34 - 35, 47 - 48, 53 - 57.
14 T Roux ‘Principle and pragmatism on the Constitutional Court of South Africa’ (2008) 7
Int J of Constitutional Law 106, cited in Michelman ‘Charity’ (n 1 above) 2 fn 16.
15
Michelman ‘Charity’ (n 1 above) 40 - 42, 48 - 53.
16 I review this disagreement and consider the possible stakes in Michelman ‘Charity’ (n 1
above) 8 - 9, 35 - 40.
17
Woolman (n 8 above) 415 (typescript).
18 Michelman (n 1 above) 8 - 9.