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2 Chapter 1
thinks of it as an opportunity to learn just about everything that can
go wrong with an engine), a plain meaning person (who drives a box
on wheels) or an ordinary meaning person (who simply drives a car).
That’s just a list of jurisprudential schools. You can argue by
deduction, induction, analogy, history, tradition, precedent, storytelling,
politics or even logic. And if you go to the Constitutional
Court, you can hire Trengove, Marcus, Moerane, Chaskalson,
Unterhalter, Mtshaulana, Arendse, Gaunlett, Soni, Cockerell,
Semenya, Budlender, or Kemp J Kemp to argue for you.
What, if anything, does this list of lists have to do with the volume
— Constitutional conversations — that sits before you? Academics, like
lawyers, must be free to employ a number of different, but largely
consistent, rhetorical forms in advancing their arguments. The
authors of Constitutional conversations have been set free to write
what they like — and to employ their preferred rhetorical forms. And
that they have done. Without naming names, we can count feminists,
experimentalists, ubuntuists, minimalists, critical legal scholars,
natural law theorists, realists, pragmatists, ordinary meaning readers,
plain meaning interpreters, and formalists amongst the contributors
to this collection. That said, their interpretive freedom — for this
collection — is subject to a particular form of bounded rationality.
One requirement, of all the authors who have written for
Constitutional conversations is that they take the text of the Final
Constitution, the reasoning of cases, the political institutions that
govern us, the fellow academics who contribute to our greater
understanding of our field, and a whole range of other quotidian
academic considerations — like logic and research — quite seriously.
We know that the correct reading of a founding provision may turn on
the placement of a comma — and that a bad outcome may flow from
an errant reading of a preposition. Our aim, as the editors and the
authors of Constitutional conversations, is to produce a book that
provides some insight into a select number of the problems thrown up
by our basic law. We hope, collectively, to have succeeded in making
greater sense of the system of constitutional law within which we
operate and, should we have any talent, to have made a modest
contribution towards the creation of a system of constitutional law
that is both more coherent and more just. Moreover, the authors for
Constitutional conversations do not merely dabble in doctrine — they
create it. Some of the authors have done so from the bench — the
Constitutional Court (though they operate here in an extra-curial
capacity). Others operate from the relatively objective distance
provided by the academy. In every contribution — save for the odd,