THE POLITICS OF PRINCIPLE: THE FIRST SOUTH AFRICAN CONSTITUTIONAL COURT, 1995-2005. Theunis Roux. (1) Cambridge: Cambridge University Press. 2013. Pp. xvi + 433. $130.00 (cloth), $59.00 (paper).
One current controlling paradigm of American constitutional theory is that in order to function properly, the Supreme Court must have enduring public support.' Working within this paradigm, Theunis Roux in his new book offers an account of the South African Constitutional Court's (hereinafter: SACC) adjudication in the first decade of its existence. Yet Roux encountered a puzzle. The SACC functioned properly without possessing enduring public support. Rather than abandoning the American paradigm, Roux attempted to somehow reconcile the reality of the SACC's low public support with the logic of this controlling paradigm. In this review I argue that Roux's findings justify narrowing the scope of the paradigm and acknowledging that a national high court can function properly without public support so long as the executive branch views the Court as an expert. Moreover, I argue that this revisionist position has ancient roots in Alexander Hamilton's Federalist No. 78. (4) explain that only with the rise of public opinion polls did the notion that the United States Supreme Court needs public support to function properly ascend to the level of a controlling paradigm.
I begin by presenting Roux's thesis as an application of the controlling legitimacy paradigm. After exposing the roots of this paradigm in the peculiar history of the United States Supreme Court, I explore Roux's actual findings as verifying a different theory, the Hamiltonian one that explains courts' power and legitimacy as based on their expertise. According to this theory, the SACC could function properly even without public support since the executive believed that the Court held expertise, i.e., the governing elites believed that the judges are constitutional "doctors." Before concluding, I examine Roux's portrayal of the SACC's judges. According to Roux, the judges behaved as strategic players, i.e., they were cognizant of the basic idea of the legitimacy paradigm and acted strategically in order to recruit public support. Based on his description, I show that belief in legal expertise was prevalent among judges and the legal elites during the Chaskalson Court era.
THE CONTROLLING PARADIGM AND ROUX'S THESIS
Roux has written a magnificent book. Many texts that aim to explain the work of national high courts offer either an account of courts as strategic players or a thick description in which courts are part of larger political and cultural arenas. (5) Each type of account is prone to a set of problems. Scholars who produce accounts according to the strategic line of thought reduce complex human beings to the figures of "players," who act solely according to their calculation of gains and losses. (6) Under such a worldview, belief in ideas, such as truth, independent of its instrumental strategic value does not exist. (7) Scholars who produce thick descriptions attempt to avoid reductionism by purporting to capture reality in its fullness. (8) Yet absent a narrative, without an organizing idea, the data they collected would be unmanageable. Thus, these types of accounts are prone to disregard data that do not fit their narrative or narrate the data in a manner that fits the organizing idea through which the scholar views reality.
Well aware of these limitations, Roux covers the SACC's work from both vantage points. He acknowledges that one cannot collapse one framework into the other without losing something substantial (p. 124). Thus, he adopts a "two-pronged approach" that explains the SACC's work in "rational choice terms" but also in terms of "ideas, personalities, traditions and broader social processes" (p. 124). This approach, coupled with his intellectual honesty, leads Roux to present data that discredit one vantage point but ensure a full presentation of the other.
Roux is writing under what he calls the "legitimacy theory" (p. 37) and what I dub the "legitimacy paradigm." The difference in titles is significant. A theory still needs to be tested. Roux never doubts the legitimacy "theory." He assumes its validity. He then applies it under more stringent conditions as if he was working within a scientific paradigm.9
According to the legitimacy paradigm, "a certain level of public support is a precondition for whatever else a constitutional court may hope to achieve" (p. 37). The method of assessing public support, under this paradigm, is public opinion polling. In other words, in order to function properly, the SACC must possess enduring public support as measured in opinion polls. Yet, Roux cannot deny that "the South African case appears to defy this rule" (p. 37). There were "certain brute facts about the Chaskalson Court's institutional legitimacy" (p. 34) that could not be squared with the legitimacy paradigm. Surveys conducted by James Gibson and Gregory Calderia in 1996-1997, 2001 and 2004 showed that the Court never cultivated enduring public support. (10) No other opinion polls covering the first ten years of the SACC exist, as the Institute for Justice and Reconciliation (IJR) began measuring public confidence in the SACC only in 2006. (11) "[T]he Court," writes Roux, "handed down a number of decisions in politically controversial cases, all of which were enforced, and none of which triggered a debilitating attack on the Court" (p. 3). However, as Roux acknowledges, "the Court never built much institutional legitimacy (in the sense of 'diffuse support')...." (p. 4). He thus concludes that "the interesting thing about the Chaskalson Court is that it was able to play its constitutionally assigned veto role from the very outset, and that it continued to play this role without ever building much institutional legitimacy" (p. 4; see also pp. 15, 37-38). By examining the Chaskalson Court's adjudication, Roux attempts to explain this puzzle. He endeavors to show how the Court's adjudication during its first ten years of existence does not contradict the legitimacy paradigm.
Yet, Roux does not raise the possibility that his work disproves the controlling American paradigm and that in certain circumstances national high courts do not need public support to function properly. Instead, Roux in part capitulates to the controlling paradigm. He does not view the ten first years of the Court as a complete success since "the Court never built the kind of public support that is ordinarily taken to be the mark of a successful constitutional court" (p. 391). This partial capitulation is surprising since Roux acknowledges the uniqueness of the American case that triggered the rise of the legitimacy paradigm. He explains that
In most mature constitutional democracies, where the legal-professional culture is premised on a relatively strong attachment to the ideal of adjudication according to law, and where all major political actors support the need for judicial independence, the tension between law and politics recedes to the background, arising only in isolated cases when a particularly controversial case brings it to the surface (p. 89). In a footnote he notes that "[t]he major exception is the United States" (p. 89 n.30; see also p. 102). Indeed, in the American public discourse, belief that legal expertise resolves constitutional questions has eroded, making the partisan aspect of the Court's adjudication much more salient. (12) But if the United States Supreme Court presents such a sui generis case, why assume that the paradigm through which it is studied will fit the SACC?
David Robertson provides a potential explanation in his comparative study of several national high courts. Robertson suggests that the approach to the study of courts worldwide was devised based on the very unique context of the United States Supreme Court as a result of American academic dominance in the field of social science. (12) This American-based approach, so says Robertson, should not be exported so easily to other countries. (14) Similarly, Gibson and Caldeira, two of the most prominent scholars of the "legitimacy paradigm," admit in their article on the South African Constitutional Court that while "legitimacy theory is widely accepted by scholars ... it is unclear that extant findings, mostly on the U.S., are generalizable to other political and legal systems." (15) While Roux acknowledges the influence of the American way of thinking on his work (p. 17), he cannot break free from this American paradigm. Since for Roux this paradigm is necessarily true, he writes that "the Court could not escape the fact that its institutional role and thereby also its institutional independence was premised on the Court's capacity to sustain the public's faith in the impartiality of its interpretive practices." (pp. 206-207).
ROUX'S REVOLUTIONARY FINDINGS
FLAWS IN THE LEGITIMACY PARADIGM
Many American scholars present the controlling legitimacy paradigm as a paraphrase of Hamilton's argument regarding the judiciary's limited power in Federalist No. 78. (16) This lends the paradigm an aura of a timeless truth. For example, in their work "On the Legitimacy of National High Courts," Gibson, Caldeira, and Baird write that "[n]ot even the most powerful courts in the world have the power of the 'purse' or 'sword'; with limited institutional resources, courts are therefore uncommonly dependent upon the goodwill of their constituents for both support and compliance ... courts, more than other political institutions, require a deep reservoir of goodwill." (17) The authors then use public opinion polls to measure that "reservoir of goodwill." However, the Federalist No. 78 reads differently. Alexander Hamilton proclaimed there that "[t]he judiciary on the contrary has no influence over either the sword or the purse ... It may truly be said to have neither Force...