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Stu Woolman & Michael Bishop 5
interlocutor is an editor for this book, Stu Woolman. Woolman just
happens to be the editor-in-chief and lead author of the four-volume
treatise Constitutional Law of South Africa. The challenger is none
other than Albie Sachs, a Justice of the Constitutional Court: a famous
author and a well-known-jurist; a famous freedom fighter and one of
the chief architects of our basic law. 6
Woolman opens his end of the conversation by recalling a casual
remark Justice Albie Sachs made — to Professor Jack Greenberg and
himself — after a lecture on Grootboom at Columbia Law School in
2001. 7 Justice Sachs suggested, in passing, that legal academics ‘had
played an important role during the transition’. The clear implication
of this bon mot was that their time has passed and that academics
were no longer genuinely needed by the Court. The Court, according
to Sachs, was perfectly capable of handling the cases that seized it
without the assistance of academic commentary.
Woolman’s first response is to explain the current role of a South
African constitutional law scholar. He notes that ‘in the real world’
academics must first attempt to understand any given constitutional
opinion, as well as the law underlying the constitutional dispute. To
the extent that the opinion is less than transparent, the academic
must offer a good faith reconstruction. Where the Court’s judgment
remains opaque, and perhaps wrong, it is the academic’s responsibility
to criticise the Court’s judgment. And where the Court’s
judgment runs entirely off the rails and misconceives the meaning of
the constitutional text, the academic’s job is to offer a preferred
reading. Woolman then notes that academics are not merely
handmaidens to the Court. They belong to, and write for, an ‘ideal
community of interlocutors’ that — through continuous dialogue —
attempts to get as close as possible to ‘the truth’ about the
constitutional text and the law it generates. Woolman’s ‘ideal
community’ embraces judges, advocates, attorneys, fellow academics,
students and other denizens of this republic. However, even
as it grapples with the exigencies of the moment, the ‘ideal
community’ keeps a careful eye on future generations of lawyers,
jurists, academics, students and citizens.
The need for such an ‘imaginary domain’ — to employ Drucilla
Cornell’s felicitous phrase — and our Court’s sometimes parsimonious
explication of the basic law signals the potential for something of a
crisis in our constitutional jurisprudence. 8 We cannot afford a Court
6 See eg A Sachs The jail diary of Albie Sachs (1966); A Sachs The soft vengeance of
a freedom fighter (1990).
7 Government of the Republic of South Africa & Others v Grootboom & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
8
D Cornell The imaginary domain: Abortion, pornography and sexual harassment
(1995).