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February 2, 2010

Uncommon Interview with Justice Albie Sachs

As a young man, Albie Sachs vigorously advocated for the rights of those oppressed by apartheid in South Africa both as a political activist and as a lawyer. After being jailed and tortured for his work against the apartheid system, he left South Africa, but while living in exile in Mozambique, a car bomb planted by the South African government exploded, costing him an arm and sight in one eye. Sachs eventually returned to South Africa, where he helped write the South African Constitution. He was appointed to the South African Constitutional Court by President Nelson Mandela, and served on the Court for 15 years. He sat down with the MAROON to talk about his new course at the U of C, getting blown up, and the fiery relationship between reason and passion in law.

Chicago Maroon: You've taught at several other universities throughout your career. What do you think of teaching at the University of Chicago, and of being a part of this community?

Albie Sachs: I’ve usually taught in law faculties. Here I’ve been teaching in the College. That’s been new for me. It's been beautifully organized. [With college students] there’s still an openness and an eagerness. It’s particularly challenging and inviting. I’m overexperienced and they’re underexperienced. I like to feel I still have the eagerness I had when I was their age.

CM: Your course is based on your new book, Reason and Passion: The Strange Alchemy of Life and Law. What is the course about and how is it structured?

AS: It deals a lot with the way judges function. The formal [academic] approach is that judges are completely detached, objective, and apply formal rules to factual situations to get inevitable legal consequences. The reality is far more complex, far richer. There’s almost a kind of loving combat between reason and passion. Reason is abstract. Passion is empathy—the meaning of law for people out there. It makes the process of judicial decision-making far richer, far more complex, than the story of complete detachment would have it.

Then I look at the way very intense personal life experiences have fit into my working as a judge. I think these processes are universal. In my case, they are melodramatic: going to jail, being blown up, losing an arm. This is not a normal career path for a judge. But the relationship between empathy and reason apply to all judges everywhere. The debate when Sonia Sotomayor was confirmed raised all these issues.

CM: Why did you decide to become a lawyer?

AS: It was in my last year of high school. I don’t know what triggered it. I was going to be a doctor, I was going to be a doctor, and suddenly I decided I was going to study law. I was influenced by a book called [Clarence] Darrow for the Defense. And there was so much patent injustice in South Africa. The direct contact to the struggle for justice appealed to me.

CM: Do you see your role as a lawyer and a human rights advocate as separate or intertwined?

AS: Inseparable. [There's a lot in my book about] the contradictions I felt as a student, how torn I was between the beautiful phrases I was learning in law school and the struggle for justice of desperately poor people whom I would meet in study groups by candlelight at night.

CM: You saw first-hand the evils that law is capable of perpetrating and yet you used it to bring positive change through law. Why do you still believe in law?

AS: Law in itself is not necessarily good. It can be used to divide people, to separate people. Law can be enormously helpful for establishing equality and respect for human dignity.

CM: I read in an interview that you first started to really support a constitutional model of jurisprudence while living and working in the United States. What impressed you about the American system? Do you think there are ways in which the South African Constitution and the way the South African Constitutional Court functions are improvements on the American model?

AS: I think what America gave to the world was a constitution of written concepts that provide certain points of reference for expressions of public power and a bill of rights that would be foundational to the basic rights of everybody. But the United States document was drafted in the end of the 18th century. We were developing a document for two centuries later with the benefit of all the experience of humanity to assist us. Certain bases then are carried forward. Separation of powers, defined roles of branches of government, protection of fundamental rights. Our constitution builds on and enriches the American Bill of Rights... by building in strong gender rights and the rights of the child. It also controls social and economic rights such as access to health care, communal housing and education. To be realistic, [we have to expect] progress within available resources.

CM: In the U.S. there’s a lot of talk about whether using the courts to create social change is effective or positive. How powerful do you think courts can be? How powerful should they be?

AS: In South Africa we refer to our Constitution as a constitution for transformation. The Constitution envisages and calls for an activist Court. And so the text will always guide us but the context is one of a society of patterns of gross inequality based on race and gender. Our judiciary would fail if its pronouncements did not promote measures designed to further the principles of non-racism and non-sexism. When the Constitutional Court was established 15 years ago we in fact drew heavily on the jurisprudence of the U.S. Supreme Court, starting with Brown v. Board of Education. The more conservative positions of the majority of the United States Supreme Court in recent years have been less helpful to us.

CM: You're quoted as saying that “judges are the storytellers of the 21st century.” What does that mean?

AS: There are many ways of telling the story. The one is just the deciding of the particular case before the court. But the other is, another is the implications for the whole of society, the symbolical meaning. Judges write in different ways. Each has his or her own voice. Some are technical in the extreme--but even that tells a story. Others give more overt expression to what I call judicial passion. Society listens to and takes account of these stories. Each judicial opinion both resolves a particular dispute between particular parties and at the same time serves as a parable. Judges should acknowledge their oracular power, neither giving way unduly to it, nor pretending it doesn’t exist.