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Reply - Danie Brand 111
of the legal standard of democracy in South African law is of course
extremely valuable. As Stu Woolman tells us in his first chapter to this
volume, 63 the Constitutional Court has already once, in UDM, been
allowed to escape having to give substantive content to the
Constitution’s idea of democracy, because, on its version, no
academic had as yet done the ‘grunt work’ 64 of providing a systematic
description of that conception. 65 With Theunis having done the ‘grunt
work’ now, it will not be able to use the same excuse again. But
‘simple’ description — especially if it pretends at or unwittingly
creates the impression of a neutral finding of the law — also has its
limits and poses its own problems.
We have it from Karl Klare that neutral and empirical description
or interpretation of the law is impossible, and that attempts at such
a project are fraught. Drawing on two decades of critical scholarship,
Klare illustrated to South African scholars and lawyers already in 1996
that any claim to the neutral, ‘pure’ description of law is, in the first
place, false. Legal material is never self-evident, so that
interpretation/description for him always involves choice — even if
only choice as to what constitutes the relevant legal material, or what
constitutes the field of enquiry — and that choice is always informed
also by extra-legal materials and considerations. 66 Secondly, and
more important here, Klare also illustrated the dangers of the
pretence of objective, ‘purely legal’ interpretation or description of
law: Such pretence masks and so insulates from interrogation the
choice that is always there in interpretation. In this way democratic
engagement with the interpretation or description of the law that
arises is discouraged. 67 To be true, Klare’s warning was directed in
particular at judges, certainly in part because of the peculiar
rhetorical power that their pronouncements and their processes of
reasoning hold. We know that our work as academics is taken nowhere
near as seriously and that we certainly do not, as judges do, ‘model
intellectual and institutional practices appropriate to a culture of
[democracy]’ to any audience but ourselves. 68 Nevertheless, in a book
entitled Constitutional conversations and with respect to a chapter in
it on democracy, can I be forgiven for asking: If indeed Theunis aims
at providing a ‘pure’ description of the principle of democracy in
South African constitutional law in his chapter here, how democratic
is his writing in this respect?
63
S Woolman ‘The South African constitution as the last great modernist project’ in
64
S Woolman & M Bishop (eds) Constitutional conversations (2008) 25.
To use the phrase Stu Woolman often employs when describing in part the task he
sets authors in CLoSA.
65 UDM (n 3 above) para 25.
66 Klare (n 19 above) 162-163.
67
Klare (n 19 above) 164.
68 Klare (n 19 above) 147.