Humility, Michelman's method and the Constitutional Court : rereading the First Certification Judgment and reaffirming a distinction between law and politics

The article has pressed a deceptively simple brace of propositions. First, the spirit in which both Professor Michelman and the Constitutional Court proceed with their work - academic, collegial, professional - is imbued with a remarkable humility. That humility cashes out in the ensuing manner. Neither Professor Michelman nor the Constitutional Court set out to impose a deep, substantive vision of a just political order on others. Instead, they attempt, in their overlapping spheres of justice, to create a strong, rational foundation for political mobilisation and rigorous academic analysis by other actors who operate within their closely related domains of influence and power. Second, this humility underwrites the contention that a meaningful distinction between law and politics can be maintained: even if no hard and fast lines can ever be drawn given the derivative and multi-sourced nature of the law. Again: the proposition on offer here is that the Constitutional Court's unique approach to its role (and the manner in which it functions) is one grounded in the virtue of humility. While that proposition may provoke some, it's worth noting that legal theorists and political philosophers who differ substantially on the form a just social order ought to take - from Joseph Raz to Michael Walzer to Tony Judt - can still agree that de minimus Lockean-like views about law are one thing, and a fully fleshed out theory of distributive justice are quite another. Law qua humility thus sets for itself modest aims. It seeks to maintain a baseline of acceptable standards - that the same general laws apply to the governors and governed alike - even as it encourages other branches of government and various private actors to meaningfully engage one another over the content of our most fundamental normative commitments. If you can hold law and politics apart, in the dynamic tension suggested in these pages, and, simultaneously, can recognise that a Constitutional Court might wish to subordinate the particular views of its eleven members to the stances taken by a multitude of parties, politicians, citizens and the various subpublics that appear before the Court, then law qua humility might have some purchase. Ex Parte Chairperson of the Constitutional Assembly in re Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC) and later cases provide some evidence for the proposition that Michelmanian methodological principles - humility, interpretive charity, aggressively learning from others - dovetail with a legitimate desire to maintain some degree of separation between law and politics. At the same time, the Constitutional Court has attempted to assist other actors in our still nascent democracy in the long, arduous task of "state-building" so that citizens might enjoy the more mundane benefits of living, day-to-day, in a constitutional democracy. Call it law, or some garden variety form of justice, but it is, for most people, what they want, on a regular basis, from the state that serves them.