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PREFACE
We do things differently around here. (Or rather, we like to think we do.)
Throughout the year, we have jurists and academics (local and foreign),
graduate students and school learners, arrive at our offices on Constitution
Hill to present papers that either make us squirm in our seats or think of
ostensibly mundane matters afresh. Often enough, our guests deliver
presentations on topics we have yet to consider and are, therefore, new to
the South African legal landscape. The creation of a safe space to push the
boundaries of legal thought remains the raison d’être for the South African
Institute for Advanced Constitutional, Public, Human Rights and
International Law (SAIFAC).
One of the ways that we do things differently is to replace static
presentations with vibrant conversations. Throughout our colloquia and
seminars, as well as in other publications (from Constitutional Conversations
to the Constitutional Court Review), we have employed a dialogical model of
presentation. Instead of having individual judges, academics and students
present alone, we opt for formats that place individuals in conversation
with one another – in a manner that is rigorous yet collaborative, spirited
rather than competitive.
One new result of this methodology is this book. The colloquies that
make up this work are framed in a manner that requires interlocutors to
speak directly to, and not past, one another. Professor Frank Michelman
of Harvard Law School (one of the authors in this volume) neatly captures
the colloquium’s ethos: ‘The aim is to learn. It is aggressively to learn what
there is to be learnt from puzzles [our] interlocutors pose to us, by
assuming there is method in their madness and doing our best to ferret that
out, using everything else we know or can guess (in part from their likeness
and kinship to us) about where they are coming from.’
Hard as it may be to put our own thoughts into a coherent, compelling
fashion, harder still is it to credit, and to give at least initial priority to, the
claims of others who stand in apparent disagreement with our own
positions. To do so takes work. Real work. And patience. The authors of
this collection of colloquies are decidedly not out there playing games of
‘gotcha’. They are engaged in a collective effort to close down areas of
difference (even as they take risks associated in opening up new areas of
exploration). The purpose in crediting our interlocutors as we do is to
sharpen the critical bite of outstanding differences. Sometimes a pair of
conversants will wind up singing off the same hymn sheet. In other
dialogues, presenters are forced to rethink their initial positions, and
provide reassessments or clarifications thereof in footnotes that address the
challenges posed by their respondents. Again: We hope that this format
will help illustrate the complexity of certain topics, whilst highlighting
areas of agreement and disagreement in others.
The topics are diverse but all engage matters of great import for South
African constitutional law. Some authors ask us to reconsider our
disciplinary bias – as lawyers – by asking questions about the relationship
between theory and practice across diverse forms of life, and whether law
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