Saturday, May 30, 2009

Dignity, Freedom and South African Constitutional Justice Ackerman: Robson's Saturday Evening Review

 Dignity, Freedom, and the Post-Apartheid Legal Order is a critical volume as well as a tribute to the constitutional jurisprudence of Justice Laurie Ackermann, (pictured below) now retired from the Constitutional Court of South Africa.  
Judge-Laurie-Ackermann
Edited by AJ Barnard-Naude, Drucilla Cornell, and Francois du Bois, the fourteen essaDignity,_Freedom_and_the_Post-Apartheid_Legal_Orderys in this collection provide insights into the relationships between dignity and freedom as constitutional principles, not only in the "new South Africa," but also for those interested in American constitutional law and its foundations and theories.

Several essays might be of special interest to American ConLaw Profs:

Freedom By Any Other Name? A Comparative Note on Losing Battles While Winning Wars,
by Frank Michelman  of Harvard Law School compares the South African constitutional concern with the principle of freedom to "residual liberty" constitutional issues in the United States known - in its most "congenial" phrasing according to Michelman - as substantive due process.  

Toward a Relational Constitutionalism by Peggy Cooper Davis of NYU Law discusses the well-known view that the South African Constitution is reactive to Apartheid, but then disputes the well-known comparison that the United States Constitution is not "reactive."  Cooper argues that the Reconstruction Amendments were reactive and that the US Constitution could (and should) be viewed through their transformative character. 

Both Michelman and Davis discuss the South African Constitutional Court's sexuality decisions - a matter on which the South African Constitutional Court has been at the forefront.  These decisions and their theoretical underpinings are the centerpieces of the excellent contributions by Pierre de Vos and AJ Barnard-Naude.   Socio-economic rights is another area in which the South African Constitutional Court is seen as progressive and the essay by Sandra Liebenberg compellingly connects "freedom" to issues of what Americans think of as "equality."

Drucilla Cornell, an American law professor now holding a chair at University of Cape Town, offers the best introduction to the work of former Justice Laurie Ackerman, including Ackerman's reliance on Kant in his judgments and the importance of dignity as well as uBuntu.  As she does so, she illuminates issues far beyond a single justice or a single nation.  Her piece alone is worth the price of the book.

The book will be launched June 4 at the Book Lounge in Cape Town.  Unfortunately, my visit to the University of Cape Town has ended, but if you are in the neighborhood, it promises to be an event worth attending.

RR


 

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