Abstract
This chapter considers the future of legal formalism in South Africa. By formalism I mean the broad ideology of Western law which separates the ‘legal’ from the ‘politicar both institutionally and in terms of justification for decision making. Legal formalism amounts in fact to a paradigm in which legal decisions are made according to legal rules and doctrines. Rights and entitlements made according to these rules are seen in turn as different from substantive decisions in which political and other considerations govern.
… (J)udges characteristically do not create law, but kill it. Theirs is the jurispathic office. Confronting the luxurious growth of a hundred legal traditions, they assert that this one is the law and destroy or try to destroy the rest.1
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Notes
R. Cover, Justice Accused: Anti Slavery and the Judicial Process (New Haven: Yale University Press, 1975).
These issues may be pursued in S. Merry, Getting Justice and Getting Even, Legal Consciousness among Working Class Americans (Chicago: University of Chicago Press, 1990)
B. Yngvesson, ‘Inventing Law in Local Settings: Re-Thinking Popular Legal Culture’, Yale Law Journal, vol. 98 (1989), 1689–1709
M. Horwitz, The Transformation of American Law (New York: Oxford University Press, 1992)
H. Corder, Judges at Work (Johannesburg: Juta, 1984), Chapter 1.
C. Forsyth, In Danger for Their Talents (Johannesburg: Juta, 1985)
J. Dugard, Human Rights and the South African Legal Order (Princeton: Princeton University Press, 1978)
D. Davis, ‘Post Apartheid South Africa: What Future for the Legal System’, Acta Juridica (Cape Town: Juta, 1987).
M. Chanock, ‘Race and Nation in South African Common Law’ in P. Fitzpatrick (ed.), Nationalism, Racism and the Rule of Law (New York: Dartmonth, 1994), pp. 265–88.
R. Wacks, ‘Judges and Injustice’, South African Law Journal, 266 (1984), 266–85.
See also A. van Blerk, Judge and Be Judged (Cape Town: Juta, 1988).
S. Burman and W. Scharf, ‘Creating People’s Justice: Street Committees and Peoples Courts in a South African City’, Law and Society Review, 24, 3 (1990), 693–744.
M. Chanock, ‘“Law, State and Culture”: Thinking about Customary Law’, Acta Juridica (1991).
L. White, ‘To Learn and to Teach: Lawyering and Power in South Africa, 1981–85’, Wisconsin Law Review, 699 (1988), 699–769.
The phrasing is derived from John Brigham, The Cult of the Court (Philadelphia: Temple University Press, 1987).
See M. Doxey, The Industrial Colour Bar in South Africa (Cape Town: Oxford University Press, 1961).
For the difference between the liberal discourses related to the ‘rule of law’, and those related to ‘rights’ see M. Chanock, ‘The South African Bill of Rights’ in P. Alston (ed.). Human Rights in the World (Oxford: Clarendon Press, 1994).
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© 1996 Macmillan Press Ltd
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Chanock, M. (1996). Reconstructing South African Law: Legal Formalism and Legal Culture in a New State. In: Rich, P.B. (eds) Reaction and Renewal in South Africa. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-24772-1_5
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DOI: https://doi.org/10.1007/978-1-349-24772-1_5
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