Constitutional Court Review, Vol. 2, p. 97, 2009
48 Pages Posted: 22 May 2011
This article, published in South Africa's Constitutional Court Review, focuses on the Constitutional Court of South Africa in order to discuss the nature of constitutional judging more generally. Looking to Brown v. Board of Education as an example, it argues that technical skill – though obviously important – is not the highest virtue of the constitutional judge, and that a central attribute of constitutional judging is commitment to the values of the constitution. But commitment to values is more than a matter of rational assent. As everyday experience and neurological evidence teach us, commitment naturally and unavoidably involves the judge’s emotions as well.
Once we acknowledge that emotional commitment to values is crucial to judging, how can we avoid the danger that emotional commitment will become over-commitment and lead a judge to unjust decisionmaking? Some familiar answers are important but insufficient. Thus even when constitutional values are spelled out in the constitutional text itself, as in South Africa’s constitution, they are predictably too capacious to narrowly bound judges’ decisions. Empathy, a bridge to help judges understand others, unfortunately works best with those most like ourselves, and must in any case be held in some check if judges are to make the necessarily hurtful decisions they must. Practical wisdom, as characterized by Anthony Kronman, seems not to encompass the sometimes transformative role of lawyers and judges. Judicial independence must be mixed where appropriate with judicial deference, and in any case is itself a value to which judges may be emotionally over-committed.
If these answers are insufficient, is there any other protection available? Reflecting on a particularly fraught case on which the Constitutional Court had to rule, the article turns to an old idea, judicial objectivity, and urges that it is not the absence of emotion but the proper cabining of emotion. That capacity, in turn, rests both on the personal traits of individual judges and on an institutional practice, the “discipline of the law”: the requirements of transparency, deliberation and reasoned justification that constrain the process of hearing and deciding cases and that are, ultimately, a part of the larger rule of law itself – the path of the law.
Finally, in light of this understanding of the role of constitutional judges, the article turns to the question of law schools’ role in preparing students for their responsibilities as lawyers and judges in a constitutional state. The article argues that the practice of law is itself a constitutional function, so that properly understanding what to do as a lawyer entails the study of the constitution – a point South Africa’s far-reaching constitutional doctrines underline. But responsible practice, again, is not just a matter of skill and knowledge. The article maintains that what prepares students for the moral responsibilities of judging is to begin to take responsibility themselves, and concludes with a call for increased use of clinics and similar teaching approaches to guide students’ apprenticeship in practice.
Keywords: judging, values, emotions, South Africa, Constitutional Court, clinical legal education, Brown v. Board of Education
Suggested Citation: Suggested Citation
Ellmann, Stephen, Marking the Path of the Law. Constitutional Court Review, Vol. 2, p. 97, 2009; NYLS Clinical Research Institute Paper No. 10/11 #12; NYLS Legal Studies Research Paper No. 10/11 #24. Available at SSRN: https://ssrn.com/abstract=1847805