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32 Chapter 2
myself — fails to take crisis as its departure point, and thus fails to
take the needs and the concerns of those it serves seriously. 11 They
argue that the law is willing to sacrifice those persons most in need of
its protection and then allege, with some merit, that the law does so
in the name, but not necessarily the service, of a just and fair social
order. These charges are serious indeed. Professor Johan van der Walt
has recently devoted an entire book to elucidating these theses. 12
And when he writes that law constitutes ‘the sacrificial selfdestruction
of hospitality, the self-destruction that takes place with
every attempt to give effect to hospitality,’ it is hard not to concede
that even when we take the moral salience of every action — be it
public or private — into account, that all law and all human action
involves some form of sacrifice. In Van der Walt’s words:
[T]he horizontalising demand for justification will require agents of
disempowerment to provide concrete information as to why the
particular form of disempowerment cannot or could not be avoided. This
information will not, of course, level the playing field, or it will only
level it on a symbolic level. However, the consistent demand for
information that justifies the curtailment of fundamental rights will
serve consistently to destabilise the position of anyone implicated in
such curtailments. Constant exposure to public scrutiny will leave their
positions less entrenched then they would have been were they able to
rely on privileges and immunities. 13
Those of us who work in the guild of constitutional law-masons —
whether academics, jurists, practitioners and students — cannot for a
moment sit idly back and assume that the Constitution and all our
lovely political institutions provide an answer for the depredations of
apartheid or the desolations of our current political order. Van der
Walt is correct in noting that the Constitution is but a way station, a
stop on a never-ending journey towards a more just political order.
The virtue of such work as his is to wipe any smugness off the face of
those of us who work within this constitutional order and think that
such work is enough to set things right in a country where some 50 per
cent of us — at one time or another — experience hunger and
homelessness. Every act in every day South African life, Van der Walt
reminds us, possesses an unavoidable moral salience. Or rather, we
avoid that moral salience — and the sacrifices those acts entail — at
the peril of our ‘souls’.
11 See T Madlingozi ‘Legal academics and progressive politics in South Africa: Moving
beyond the Ivory Tower’ (2006) 2 PULP Fictions: A Space for Dialogue 5. But see A
Kok ‘A Reply to Tshepo Madlingozi’ (2006) 2 PULP Fictions: A Space for Dialogue
25.
12
See J van der Walt Law and sacrifice (2006).
13 n 10 above, 73.