Judging the Judges, Judging Ourselves: Truth, Reconciliation, and the Apartheid Legal Order

Source: (2003) Oxford: Hart Publishing.

In many countries and cultures, the idea of law is held in high esteem, is held as a majestic ideal. Law thus viewed is both good in itself and the agent of good. It saves us from lawlessness, from disorder, even from evil. Yet, in actuality there is another side to law. Law may enforce a kind of order, but that order may be unjust or even evil. The ambiguities of law evidence themselves in all countries and cultures, including South Africa, as seen particularly in its history from apartheid to the present transition to new social, political, and legal structures and processes. As part of its mandate to examine and deal with this history and to contribute to building a new society, the South African Truth and Reconciliation Commission (TRC) conducted hearings in many areas, including the area of law and the legal profession, for apartheid was, among other things, a system of law. David Dyzenhaus wrote this book as an outgrowth of that investigation. It began with a written submission he made to the TRC and his appearance before the TRC’s Legal Hearing to consider issues related to the law and the legal profession under apartheid. An argument in legal philosophy, his basic point is that most of the judges of the apartheid era were in dereliction of the duty they assumed in taking their oath of office. In this book, he details his argument in chapters on the following topics: truth, memory, and the rule of law; judicial dilemmas; memory and the struggle to come to terms with apartheid; and the politics of the rule of law.