Without Fear, Favor or Prejudice: Judicial Independence and the Transformation of the Judiciary in South Africa

Abstract:     
In this paper I address the twin imperatives of the South African constitution regarding the judiciary: judicial independence and judicial transformation. I argue that these twin imperatives have resulted in an ongoing tension. At the heart of this tension lies the contested vision of the constitution, namely, its transformative potential, as Karl Klare argues,or its potential to deliver – a measured process of change that serves to – guarantee both the security of those threatened by the transition, as well as the aspirations of the – democratic majority. In short, the tension exists between the vision of the constitution as a liberal document, with a strong commitment to the rule of law and a commitment to neutrality, and a vision that views the constitution as driving the transformative agenda for legal, political, economic and social change. This tension has its origins in the legal struggle against apartheid, and it highlights the question of what public interest or human rights lawyering can achieve in the face of formidable legal obstacles. Conversely, my paper focuses on law‘s possibilities within a constitutional framework that explicitly guarantees the achievement of rights – at least in theory.

Number of Pages in PDF File: 31

Keywords: Constitutions, judicial independence, courts, human rights

JEL Classification: K10, K30, K33

working papers series