And Justice For All. Stephen Ellmann

       Preface

      And Justice For All: Arthur Chaskalson and the Struggle for Equality in South Africa is a story of the role of law in epochal social change, and of a remarkable life lived in fidelity both to law and to the struggle for social justice. The social change it describes is the victory over apartheid, which captured the imaginations of people all over the world. That victory was won on many fronts and through the efforts of people in many nations, but one of those fronts, and an important one at that, lay in the courts of South Africa itself. Arthur Chaskalson’s story embodies the story of law in the struggle against apartheid. At the same time, his story is not only emblematic but individual, the story of the shaping of the moral intelligence of a lawyer and a judge, not through long inculcation in the values of a stable society but through the fires of a lifetime’s opposition to a society’s injustice. In understanding Arthur Chaskalson, we understand better the roles lawyers can play in social change and the achievement of a just social order, while we see more clearly the interplay of upbringing, experience and character that shapes a person first into a cause lawyer and then into a path-breaking, and foundation-laying, judge.

      In telling this story, I am telling the story of a man who was a friend and a mentor to me – and someone whom I admired very much. Readers will find that I appear in this book from time to time, I hope in ways that help to present Arthur’s story rather than diverting attention from it. We met in late 1987, the fall semester in the United States, when we co-taught a seminar on ‘Legal Responses to Apartheid’ at Columbia Law School. This was the second time I had co-taught the course; the first time was also a special opportunity for me, as I worked with Dikgang Moseneke and Sydney and Felicia Kentridge. Teaching with Arthur was exciting and challenging, and so was the trip I made to South Africa at Arthur’s invitation in mid-1988 (Columbia’s summer vacation, South Africa’s mid-winter). Then and on later trips, with Arthur’s help, I got to know some of the outstanding people, many of them lawyers, who were, like Arthur, working within South Africa to challenge the system of apartheid. I had done somewhat similar work as a public interest lawyer at the Southern Poverty Law Center in Alabama – but in Alabama we had a constitution on our side, and did not face the implacable opposition of a reactionary government’s security apparatus. So I understood, broadly, what Arthur and his colleagues were doing, and how hard it was to do, and how important. Those connections long ago, before the end of apartheid, led me to a lifelong scholarly interest in South African law, to lasting ties with a number of South Africans (who also make appearances in this book), and to a friendship with Arthur that continued until he passed away in 2012. I am grateful that his family invited me to tell his story.

      This is a South African story, and an important one. The victory of the South African people over apartheid is now receding into memory, or oblivion, as an entire generation of South Africans has been born since the end of that evil regime. What happened in that struggle needs to be remembered. That South African law was part of apartheid is undeniable – and Arthur Chaskalson would have been the last to deny it. That some South African lawyers, Arthur prominent among them, and some South African judges managed to use South African law as a weapon with which to undercut apartheid and to protect clients and litigants in great need is equally important, and gives us a sense – one we should not be quick to surrender – of the potentials of law. Lawyers have been active on behalf of human rights in many unsympathetic settings, and Arthur’s experience offers a striking reminder that these struggles may not be quixotic; instead they may contribute to victory, in the form of short-term courtroom success and long-term national revival.

      Certainly these efforts by lawyers were far from a substitute for political challenge or the development of a liberation movement, but there was no contradiction between protecting human rights and assisting the anti-apartheid struggle. Many of Arthur’s cases, including his representation of Nelson Mandela in the Rivonia trial of 1963–4, were fought on behalf of leaders of those struggles. Others, notably cases Arthur brought for the Legal Resources Centre, the premier public interest law firm he co-founded in 1978–9 and then led for many years, managed to undercut important legal ‘pillars’ of apartheid, such as the exclusion of blacks from metropolitan areas through ‘influx control’ and the forced removal of black communities from supposedly white areas. At the same time these legal efforts helped keep alive for South Africans living under apartheid the idea of a just rule of law, protecting human rights, an ideal that had never altogether disappeared from view and that might one day prevail. This foundation became the basis for the post-apartheid nation that would – to the world’s surprise – become a reality in 1994. Both constitutional negotiators (among whom Arthur played a prominent role) and then constitutional judges (led by Arthur, as the first President, then the Chief Justice, of the newly created Constitutional Court) devoted themselves to building on it as apartheid ended and democracy began. Despite their efforts, South Africa, having emerged from the long ordeal of apartheid, has found itself infected by a new blight of corruption – but the rule of law, and the institutions protecting it, have been a crucial if incomplete bulwark against this new peril.

      This is not only a South African story. In fact, it is part of at least two stories that have echoes around the world. One is the story of the transition from authoritarian rule to democracy in many different nations, and the role that law can play in such transitions. The other is the story of what happens when the happy picture of democratic progress becomes marred. What might have seemed just a few years ago to be a strong and stable democratic consensus in the nations of the West – and a swelling tide of democratisation in other parts of the world as well – does not look so reassuring today. Arthur Chaskalson died in 2012, but before he died he had expanded his focus from South African law to the protection of rights around the world. As the leader of the Eminent Jurists Panel of the International Commission of Jurists, he studied the world’s counterterrorism programmes and found in them frightening evidence of the breakdown of human rights principles in many countries, and in particular in my own country, the United States.

      His warnings now seem all too prescient. In the United States, a President with little commitment to many of the rights guarantees that have guided American life for decades is also using his power over judicial appointments to reshape the underlying contours of American law. The United States will not adopt apartheid – that is, a system in which a small racial

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