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Reply - Johan van der Walt 189
passage above. However, one feels tempted to insert or read into this
part of their text another set of parentheses to mark this in-passing
nature of their invocation of potential intractability. A set of
parentheses appears to have been omitted here ‘inadvertently’.
However, I wish to suggest, to the contrary, that a realistic regard
for the potential of intractable conflicts between judiciary and
executive actually beckons one to remove the first set of parentheses
in the passage quoted above, and to decline the invitation to
interpretively add another set in the later discussion of intractability.
The first set of parentheses should be removed so that that which
figures between them can spill more constructively and destructively,
‘deconstructively’ one can say, into the rest of their text. For ‘here is
the rose’. ‘It is here that we must dance’, to use Hegel’s immortal
words regarding mortality in the Grundlinien der Philosophie des
Rechts. 6
It is here that we must pause to reflect deeply, because it is here
that the notion of shared constitutional interpretation runs headlong
into the question of the possibility or impossibility of sharing that has
involved two great philosophers of our time in what may well become
an epoch making debate. Existence is as such a matter of sharing,
argues Jean-Luc Nancy in his scintillating work L’Expérience de la
liberté. 7 Existence is a function of the impossibility of sharing,
responds Derrida in Voyous. 8 I think our responsibility lies not in trying
to determine which of these two philosophers are conclusively
correct, but in drawing from their debate the insight that we, mortal,
finite and fallible beings that we are, have hitherto always seemed to
be entangled and caught up in the irreducible tensions between
possibilities and impossibilities of sharing. We should draw from their
debate the insight that human beings are always caught up in what
Botha elsewhere, in the context of the question of the possibility or
impossibility of constitutional democracy, calls an ‘(im)possibility’,
that is, the irreducible and irreducibly enigmatic concomitance of the
possible and impossible in all things human. 9 It is in this regard that I
wish to question Woolman and Botha’s optimistic understanding of
shared interpretation as a crucial element of the life of a living law in
which the harmony or harmoniously shared roles between common
and constitutional law will allow the Constitution to grow creatively.
I would like to ask whether one should not spare the precariousness
and fragility of the life of this living law a little more thought.
6
G Hegel Werke in Zwanzig Bänden, Band 7 (1971) 26-27.
7 Nancy L’Expérience de la liberté (1988) 91-107.
8 Derrida Voyous (2003) 74.
9
H Botha ‘Rights, limitations and the (im)possibility of self-government’ in H Botha
et al (eds) Rights and democracy in a transformative constitution (2004).