Vol. 3, No. 7 (July, 1993) pp. 71-73

IN A TIME OF TROUBLE: LAW AND LIBERTY IN SOUTH AFRICA'S STATE OF EMERGENCY by Stephen Ellmann. Oxford: The Clarendon Press, 1992. 283 pp.

Reviewed by William A. Munro, Department of Political Science, Northwestern University.

In systems of extreme authoritarian rule, can the law be used to constrain the arbitrary exercise of state power, especially as it impinges on the human rights of citizens? If so, how -- in principle and in practice -- might it do so? These are the questions that motivate Stephen Ellmann's absorbing and provocative analysis of emergency law and human rights in South Africa during the 1980s. He argues that, even in its darkest times, the South African judiciary has not been entirely servile: it has persistently rejected state attempts to place emergency legislation beyond the court's purview, although it has allowed the state to curtail that purview. Consequently, Ellmann suggests, an understanding of the doctrinal and interpretational choices made by the court might suggest answers to the book's central questions. Drawing on South African case material, he concludes that a judiciary founded upon a robust legal culture which values judicial independence, an interest in human rights and professional ethics provides a solid foundation for successfully challenging the egregious use of state power.

This is a wide-ranging and provocative piece of legal scholarship which draws on a broad range of comparative legal history and is rich in speculations about the relationship between law and state. The argument of the book is constructed around a close and critical procedural reading of Appellate Division decisions on emergency law cases in the years 1985 to 1990, firstly under Chief Justice Pieter Rabie and subsequently under Chief Justice Michael Corbett. The narrow focus on emergency law provides a significant orientation for the author: states of emergency represent `the worst of times', when state intrusions in the lives of citizens are greatest. Moreover, from the point of view of legal interpretation and human rights, states of emergency generate paradoxical ethical questions. On the one hand emergency laws are promulgated when it appears that ordinary law is inadequate to protect the social order. Under such conditions judges may believe that the interests of state security should override the interests of individual rights (broadly, and somewhat vaguely, construed by the author as `human' rights). On the other hand, governments frequently declare states of emergency as a political contingency against the rapidly dissipating legitimacy of the regime. In such cases lawyers and judges face difficult ethical questions about how to oppose a legal system designed to sustain an unjust social order. These complex ethical questions, profoundly present during South Africa's emergency, provide the author a framework within which to analyse the capacity (and willingness) of the judiciary to constrain state power.

He proceeds by showing first that despite a constitutional doctrine of parliamentary supremacy, a positivist legal tradition, and a massive legal edifice of apartheid laws, South African rules of statutory interpretation offer strong doctrinal grounds to sustain human rights. Under the leadership of Chief Justice Rabie, however, the court chose overwhelmingly to support state security interests and to reject human rights concerns. Through a close reading of the cases, Ellman shows that it frequently did so on weak doctrinal grounds and through abrupt dismissal of contrary argumentation. Moreover, all emergency law cases were heard by an `emergency team' of five like-minded judges, including the Chief Justice. Thus it seems clear that the court acted `politically'. Nevertheless, Ellman argues, the court tenaciously sustained its right to keep state actions within its purview; thus it was not simply a political tool. Under Rabie's successor, Chief Justice Corbett, on the other hand, the court reversed this trend; without departing radically from the jurisprudence of the Rabie court, it has shown a pronounced readiness to support human interests against state interests.

For Ellmann, these trends in interpretation show that the court has been able to exercise choices and has always insisted on a modicum of judicial independence and respect for the law. The explanation for this insistence, he argues, lies in a legal culture characterised by `visions of the rule of law' (164) which stress both judicial independence (traceable in the Rabie court) and respect for citizens' rights (traceable in the Corbett court). On his account, these traditions -- which have complex sources -- are the saving grace of the South African judiciary; they have kept intact the moral stature of the law and its institutions as South Africa enters a period of profound political transformation. Because they are sustained both by judges and by lawyers, judges have been right not to resign in the face of unjust laws, and lawyers have been right to adopt incrementalist strategies of lawyering rather than Gandhian or confrontational strategies.

The argument is meticulously constructed and reasoned. Nevertheless, it spans a wide political, legal and cultural compass, and its central focus on emergency litigation at the appellate level bears a cost. In the procedural analysis of the court, the author's analytical vision is sharp, clear and focused; when he turns to politics and causation, it is broader and more speculative. For instance, Ellmann never directly addresses the political character of the Rabie court's `emergency team'. He argues that the court construed in favour of state security for three main reasons: the judges really did believe that there was an emergency; they had faith in senior officials; and they had sympathy for the difficulties that public officials faced in implementing emergency laws under volatile political conditions. But all these reasons reflect a certain wilfulness on the part of the judges. Ab initio judges ought to be suspicious of emergencies precisely because they do assail the rule of law. In the face of massive evidence of state cynicism, including the `endemic official lawlessness' of the 1980s (24-25), the Rabie court displayed no such suspicion. Thus one must be wary of over-simplifying the court's attachment to `the familiar customs of the law' (99) and consider more closely the dynamic relationship between the law and politics.

To do so has ramifications for the larger argument of the book. In the first place, if Rabie was a political appointee, the capacity of the court to cleave to these customs was politically imperiled. (Unfortunately, Ellmann's discussion of Rabie's own politics is disappointingly thin, and he never considers whether the legal establishment was able to guide or constrain government appointments.) There may, moreover, be an imbalance in the political significance of those cases in which the court supported state security and those in which it constrained state power. For instance, the case in which the court allowed the state to curtail its purview of state actions most dramatically, UNITED DEMOCRATIC FRONT, coincided with an intensive state effort to comprehensively silence the United Democratic Front, its principal oppositional organisation. One is left wondering whether the Rabie court's decision (described by Ellmann as the `nadir[] of the Rabie era's work (98)) was a part of that campaign; if so the effective political reach of legal culture is called into question, and the role of law in political legitimation is highlighted.

Ellmann presents a sweeping and provocative discussion of the importance of law in South African culture, but is reluctant to directly address questions of political causation. He explains the government's replacement of Rabie with Corbett in very general terms as an outcome of the political struggle or government reformism. But if the Corbett appointment represented an attempt to re-legitimise the law itself, then political change rather than legal culture provides a more powerful causal account of the court's tendency to constrain egregious use of state power. At such times lawyers face particularly acute strategic questions about how to sustain a legal culture that supports human rights, especially since a determination to cleave to the conventions of the law and its institutions may under certain conditions come to contradict a demand for good law. Thus it is important to stress more than Ellmann does the distinction between respect for law and respect for good law, and to take very seriously indeed the possibility that they may become incompatible in lawyers' practice.

Indeed, this distinction has broader significance for South Africa's legal culture in the future. Much South African law -- ordinary and emergency -- was `bad law', and the administration of bad law is not the same as the administration of justice (a point which Ellmann recognises but does not address directly). There is very little discussion in the book of ordinary law. Yet ordinary law was a major vehicle for the implementation of apartheid. Indeed, it is not a settled matter that emergency laws were significantly more intrusive in the lives of most South Africans than ordinary apartheid law. The book's focus on the elite strata of judges and lawyers glosses over the fact that most South Africans encountered the law on an everyday basis in the form of administrative law under the jurisdiction of magistrates. Magistrates, as Ellmann notes in a footnote, were civil servants whose prospects for promotion depended on them pleasing their superiors. If this means that `legal culture' did not extend `down' to magistrates, Ellmann's claims for the strength and resilience of this culture are less secure.

Ultimately, Ellmann's cultural analysis offers a rather optimistic vision of the political effectiveness of South Africa's legal culture. Thus he argues that whereas a range of regimes have "profoundly undercut the potential value of the courts as protectors of the people", South Africa "has not travelled very far" down such paths (171). This is an implausible reading of South Africa's legal past, and an optimistic reading for its future. South Africa has travelled very far down this road indeed, not least in the construction and implementation of `ordinary law'. Ellmann is precisely right to stress that the construction of a strong and independent judiciary for a post-apartheid South Africa must begin today, and that the legal culture which he describes provides a solid foundation. But it is critical to point out this legal culture must be sustained at the lowest levels of the law as well as the highest. The alternative grassroots judicial institutions (such as `peoples' courts') that sprang up in South Africa during the 1980s signal the difficulty of securing such a culture at the popular level.

The prospects of human rights in South Africa are uncertain. Stephen Ellmann's book invites debate on this critical concern, and I offer my remarks in this spirit. The strength of Stephen Ellmann's book is to show that the South African judiciary has a solid doctrinal, institutional and cultural basis for securing human rights. For South African legal specialists it is thus particularly welcome at a time when they must unflinchingly consider their future in the full light of their past. But this engaging book also offers broader insights on the politics of doctrinal innovation, state legitimation, and the institutional power of judiciaries in authoritarian regimes. Thus it should also stir spirited argument within a wider audience of comparative legal scholars. .