The Impossible Machine: A Genealogy of South Africa's Truth and Reconciliation Commission

Chapter 2. Indemnity and Sovereignty

/ 50 / Chapter 2 Indemnity and Sovereignty 2.1 Dicey often is said to be the main theoretical source of South African jurisprudence in the twentieth century. However, precisely what this means is by no means clear, for Dicey’s main text, his 1885 Introduction to the Law of the Constitution, has been the object of wildly divergent readings in the last century.1 The reading of Dicey in South Africa is no exception. On the one hand, Dicey’s arguments that judges could interpret but not repeal statutes2 and that bad law is still law that should be obeyed in court3 enabled National Party jurists to find in Dicey a main theoretical source, perhaps even their main theoretical source, for the theory of parliamentary sovereignty that enabled the NP to argue against the judicial review of racist legislation.4 On the other hand, Dicey’s insistence that parliamentary sovereignty is inseparable from the second of his two “first principles” of the English Constitution , the rule of law, enabled liberal jurists to criticize the excesses of NP laws and policies—­ without, however, denying that their cruel and unjust character disqualifies apartheid laws from being considered law, and without endorsing the call of the then-­illegal ANC for a revolutionary overthrow of apartheid.5 In 1898, Dicey argued that Benthamite thought had splintered into two, confronting itself in two mutually exclusive guises: liberal individualism and socialist collectivism.6 Less than a century later, the same could be said of Diceyan tradition itself: in 1994, with the end of formal apartheid, Diceyan thought confronted itself not only as the justification for the apartheid security state but also as the justification for the new form of legal liberalism that proposed to replace that state. Albie Sachs, John Dugard, and Martin Chanock, among others, are thus surely right to argue that the criticism of apartheid on Diceyan grounds—­ as a violation of the rule of law—­ is, at best, insufficient.7 If anything, their argument needs to be taken a step further. If it is the case, as Martin Cha- Indemnity and Sovereignty / 51 nock has observed, that the genesis and basis of the apartheid state were always more British than Roman-­ Dutch in the first place,8 and if the rule of law was therefore always a constitutive part of apartheid governance, then we may cast doubt on the notion that the Diceyan criticism of the apartheid state ever constituted a substantive antidote or alternative to its cruelty and injustice. It would be more precise to say that Diceyan jurisprudence functioned as an important cog in the normal operation of the machine of the apartheid state: it was the latter’s preferred form of self-­ correction and self-­criticism.9 But if this is so, then the need to reread and rethink Dicey today is all the more pronounced. For even as South Africa’s new constitution dissolved Dicey’s principle of parliamentary sovereignty by replacing it with the principle of constitutional supremacy, the framers of the new constitution also made a point of reiterating the discourse of the rule of law as one of the central motivations for that process of dissolution, repetition, and difference.10 Unless we have a precise understanding of the way in which Dicey’s emphasis on the rule of law was constitutive of apartheid jurisprudence in the first place, we cannot hope to understand the way this principle has been reiterated—­that is, not only recited, but also, arguably, altered—­in postapartheid South Africa. 2.2 As soon as we turn to Dicey’s text, however, we encounter an unexpected source of difficulty: it is, in part, precisely the simplicity of Dicey’s text (or, at least, its apparent simplicity) that engenders so much confusion about Dicey’s claims. The easiest reading of Dicey’s 1885 text, of course, is that it does nothing more than stipulate two juridical principles,the rule of law and parliamentary sovereignty, which it then binds together through an analysis of those vague but substantial juridical norms Dicey calls “conventions.”11 The trouble with this reading, however, is that it doesn’t isolate with sufficient clarity what in this mix is singularly Diceyan. After all, Dicey was by no means the first British jurist to articulate the principle of parliamentary sovereignty. The more proximate sources of this principle in the English tradition are, of course, John Locke, Edward Coke, and William Blackstone. The same may be said for the principle of the rule...