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Frank I Michelman 55
and the wisdom of the common law, who will determine it according
to the paradigm of the common law.
Let us now assume a strong Dworkinian stance and press the
question of whether or how this straddle position can be fit together
with the signature utterance of the Constitutional Court’s opinion in
Pharmaceutical Manufacturers — that ‘there is only one system of
law’, that being a system ‘shaped by the Constitution’ and ‘under
constitutional control’. If that be so — if there is only one system of
law here, reflecting one ‘objective normative value system’ 20 (to
quote again from Carmichele) — then Dworkinians seem bound to say
that in no case can that objective order of values, which the
Constitution represents and for which it speaks, leave an open space
where judges retain freedom to choose among alternative possible
settings of the multiple moving parts of common-law doctrine, on
‘common-law’ grounds that are not themselves, in principle, already
determined by that systemically unifying order of values. Rather, it
seems Dworkinians must say it is always to be the task of whatever
court may be seized of the case — and most unavoidably the task of
whatever court has final appellate authority over it — to decide which
unique answer is the right answer from the standpoint of the one
system of law over which the Constitution presides. It thus may seem
that if the Constitutional Court has got it right in Pharmaceutical
Manufacturers, its stance in Carmichele has conceded significantly to
Hart, against Dworkin.
Viewing matters thus, Dworkinians might be tempted to regard as
a flight from responsibility the Constitutional Court’s declared
practice of qualified deferral, in some cases, to the expert commonlaw
judgment or wisdom of the Supreme Court of Appeal. The
responsibility, they would mean, of a court of last resort in a unified
legal system to decide, in each case coming before it, what the law
requires — meaning the law entire, the ‘one system of law’, of which
the Constitutional Court speaks in Pharmaceutical Manufacturers,
inspired by the one objective normative order of values of which it
speaks in Carmichele. An objective normative value system is not,
after all, a Swiss cheese. Something going under that name ought, in
a Dworkinian view, to contain a uniquely right answer to every
question of law affecting every topic to which law can extend. Take,
for example, the topic of ministerial responsibility for delictual
misconduct by police officers. In Phoebus Apollo, 21 the Constitutional
Court found that topic, as it came before the Court in that case, to
implicate no matter of constitutional concern. Dworkinians might
lodge objection against such a finding. They might accordingly say
20 Carmichele (n 15 above) para 54.
21
Phoebus Apollo Aviation Bpk v Minister of Safety and Security 2003 2 SA 34 (CC),
2003 1 BCLR 14 (CC).