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existence. Only old-style formalists will insist on always describing
this advent of new law in the course of constitutional review in terms
of ‘judicial activism’. They will only be correct in cases where the
judiciary fails to access and articulate the intrinsic and truly
existential imminence of language that calls for new law. Only in
these cases do judges resort to the degenerate or secondary and
blatantly transparent language of ‘making law’ and of ‘judicial
activism’.
Constitutional law, however, is not as such the abode of
imminence. In the relation between constitutional rights and
legislation, constitutional law and legislation take turns in saying the
unsaid or saying what urgently waits to be said. They take turns in the
always imminent disruption of immanence, the always imminent
disruption of the other’s immanence. They take turns in unsaying one
another. This relation between constitutional law and legislation is
hardly ever a happy or easy one. In fact, to the extent that something
significant comes to pass in this relation, the relation is invariably
deeply destructive and deeply sacrificial. As the ancients knew well,
it is through sacrifices that we create and maintain the worlds we live
in, often all too cruelly so. 11 The critical and destructive moment of
traversing the abyssal divide between the immanence and imminence
of law and language, that is, between the already sayable and the as
yet unsayable that beckons to be said in law and language, is the
moment of sacrifice.
It is this sacrificial moment that affords the notions of shared
interpretation its grave significance for the daily praxis of
constitutional interpretation. It is this sacrificial moment that renders
all instances of shared interpretation fundamentally scarred and scary
— scarred by the time they are indeed shared, if there ever is such a
time; scary during all times that they are not.
11 J van der Walt Law and sacrifice (2005) 190-233.