Lawyers in an Immoral World: South African Apartheid

With a Foreword by the South African Minister of Water Affairs and Forestry, Kader Asmal. The Truth and Reconciliation Commission (TRC), established in South Africa after the collapse of apartheid, was the bold creation of a people committed to the task of rebuilding of a nation and establishing a society founded upon justice, equality and respect for the rule of law. As part of its historic, cathartic, mission, the TRC held a special hearing, calling to account the lawyers - judges, academics and members of the bar -who had been crucial participants in the apartheid legal order. This book is an account of those hearings, and an attempt to evaluate, in the light of theories of adjudication, the historical role of the judiciary and bar in the apartheid years. This book offers us the spectacle of an entire legal system on trial. The echoes from this process are captured here in a way which will appeal to all readers, lawyers and non-lawyers alike, interested in the relationship between law and justice, as it is exposed during a period of transition to democracy.

The wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, has played an important part in recent jurisprudential debate. It seems to be clear support for the argument of legal positivists, who insist on a distinction between law and morality, and tobe an insurmountable obstacle to critics of positivism who reject that distinction.This book evaluates this debate in a detailed study of judicial interpretations of the apartheid laws of South Africa and of recent English judicial decisions, mainly on statutes and executive decisions dealing with matters of state security. The case study shows that particular conceptions of lawand of the rule of law determined the reasoning both of judges whose decisions facilitated official policy and of judges whose decisions resisted that policy. The surprising conclusion is that positivism does not produce healthy legal practice. It would be far better for judges to adopt themorally charged conception of law put forward by positivism's critics, most notably Ronald Dworkin. It is argued that this conclusion prompts a novel understanding both of the positivist tradition and of the resources in common legal systems available to critics of positivism.