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A gentle provocation: A reply to Stu Woolman
Justice Albie Sachs
Actually, Stu Woolman, it wasn’t a deft backhander. Even when I still
had my right arm and could play a reasonable game of ping-pong, my
backhand was only average. No, it was more of a carefully calculated
drop-shot; what I recall saying to you was meant as a gentle
provocation.
I felt that in the run-up to the creation of our constitutional
democracy, academics had been far ahead of judges in preparing for
the conceptual transformations that lay ahead. There was a heady
and inspiring surge of legal energy in academe. Top minds were
actively and directly engaged in the constitution-making process. Law
faculties put on workshops and educational programmes to get the
profession and the country ready for immense jurisprudential change.
Etienne Mureinik recorded his marvellous turn of phrase about the
Constitution being a bridge from a culture of authority to a culture of
justification. I still recall how Canadian law professor David Beatty
put the concept of proportionality right there on the map, telling us
in effect: It’s proportionality, stupid. And simultaneously Thandabantu
Nhlapho was preparing us for the era when customary African
law would both gain greater legitimacy and yet achieve far more
forward thrust.
The judges, on the other hand, seemed to be to be frozen in
positivistic time. Some were downright sullen. A fine incumbent of
the newly-renamed Supreme Court of Appeal, whom I remembered
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