Freedom, constraint and (the) judging (of) Albie Sachs

Abstract

The central theme of Albie Sachs's most recent book, The strange alchemy of law and life, is that law and life are not separate, but intertwined. In the book he takes readers on an excursus through his colourful life until now and through his body of work as a judge on the Constitutional Court. He shows how, throughout his judicial career, he has been constitutionally unable to do what judges are traditionally required to do - to check life (political convictions, personal hunches of right and wrong, life experiences, passion, likes and dislikes, laughter and intuition) at the courtroom door - and how that incapacity has, to his mind, enriched both his dealings with the law, and his life. Although he does not claim, or set out, to articulate a theory of adjudication, he does come close to expressing one in which judging is presented as a constant interplay between life and law or between passion and reason, one in which, despite most often being in tension, neither of the two diminish or erode each other. His account resonates with another theory of adjudication, developed not by a judge but a legal scholar hailing from far beyond our shores - the account of judging as a constant engagement with the tension between freedom and constraint. In this paper I ask to what extent this interplay between freedom and constraint has operated in Justice Sachs' body of work at the Constitutional Court, and whether it can perhaps be used as a lens through which to make sense of that body of work.