but it may well adopt many discriminatory measures, and the country may remain bitterly polarised for decades to come. South African history offers many lessons for Americans and others around the world who are dismayed by such developments, and Arthur’s story in particular offers lessons about the feasibility and the value of legal struggle to protect human rights, struggle that may well take a generation or more to prevail, and then only after many, many disappointments and much suffering.
Arthur’s story speaks to South Africans and to citizens of many other nations, but it is also a powerful human story, telling us about ourselves regardless of nationality or political affiliation. What is it that makes a great judge? That question has two different meanings, and Arthur’s life helps answer it in both those senses. One version of the question is: what are the characteristics of a great judge? Judges often seem inherently conservative, establishment figures, and in countries where law’s work is largely in the ongoing protection of long-recognised values and rules, that appearance may be appropriate and real. But the work of the law can be much more dramatic than that. In South Africa, the post-apartheid judges’ task has been to contribute to the transformation of their country, not a conservative assignment at all. The same can be true in countries whose law seems more settled – as Brown v. Board of Education and many other cases of the modern United States Supreme Court attest. For these decisions, the judges we need must still be judicious; they must even be dispassionate; yet they must be passionately committed to the building of a new world. Arthur was such a judge.
The other version of the question is: what causes a person to develop these characteristics? Or we might put the question more broadly: what causes someone to devote his or her life to seeking the transformation of an unjust society, first as a lawyer and then as a judge – as Arthur did? In another world, I think, Arthur Chaskalson might have become a comfortable member of a legal establishment – but that was not the life he came to lead, and one of the most important tasks of the book will be to trace the roots of his character. Born in 1931, he entered law study as a very smart, quite privileged, white and Jewish young man. He opposed apartheid already, but had not made that position the theme of his life. When Arthur became a co-recipient of the Gruber Justice Prize in 2004, the award said of him that if a life could be mapped, his ‘would surely appear as a straight line starting from a commitment to human rights, and leading, without deviation, to the bench of the Constitutional Court of South Africa and the position of Chief Justice. It is a long line, but an unwavering one.’1 I do not think Arthur ‘wavered’, but I also do not think his life moved along a simple straight line as this image would have it.
As he grew into adulthood, his focus on the injustice around him sharpened. His own father had died when Arthur was a small child; now he became very close to a senior lawyer, Bram Fischer, whose commitment to the fight against apartheid was absolute and self-sacrificing. In 1961, at the age of 30, he married a fiery, 19-year-old woman whom he loved for the rest of his long life. Lorraine Chaskalson was a charismatic English professor, a poet, a lover of art and beauty, mother to the Chaskalsons’ two sons, and Arthur’s moral compass, part of every decision he made as he shaped his life in the years to come. The state grew harsher; Chaskalson bravely resisted, joining his older mentor in representing Nelson Mandela. After Mandela’s trial, he might have chosen to join a political party, above ground or underground, or he might have chosen to leave the country. He did none of these. Instead he remained, practising law, earning a reputation on all sides for formidable integrity. What that meant and what it cost him – how this man of integrity shaped a life in the law when law and justice were so rarely aligned – will also be a central concern of the book.
There is more to be said on all these questions. This book is a biography, rather than a work of social science. I do not propose grand theories of the law, or of human development; instead, I will tell Arthur’s own story in detail and seek to draw from the moments of his life more nuanced, though more individual, answers than broader accounts can generate. Along the way I will also be telling some of South Africa’s story. For readers not familiar with modern South African history, I will try to provide the context that will illuminate the particular moments in Arthur’s life.
But even those who know South African history well may not know the aspects of it that were most salient for Arthur, and so to write this biography I must also be to some extent a historian. The book will look closely at the dramatic events of the Rivonia trial, in which Nelson Mandela was sentenced to life imprisonment; this trial is well known but I believe that a focus on it from the perspective of the decisions that the accused, including Mandela, and their lawyers, including Arthur, made will still shed new light. Fifteen years later Arthur began building the Legal Resources Centre (LRC), which became in the years before the end of apartheid the leading public interest law group in South Africa; understanding Arthur’s work at the LRC is important in itself but also important for an understanding of this significant institution. Arthur’s next role was in the negotiation of the first post-apartheid Constitution; here, too, much has already been written, but a focus on the particular contribution Arthur made will illuminate what that negotiation process actually was. Perhaps most strikingly, looking at Arthur’s role in the creation and first decade of the Constitutional Court will tell us a lot about the court itself as well as about Arthur. Finally, Arthur’s efforts to publicise and criticise the world’s counter-terrorism programmes, in the years after he left the Constitutional Court in 2005, are an important element of Arthur’s own career, but they turn out to have potentially chilling relevance to the state of world liberty today. The product of all these stories, I hope, will be a picture of the role of law in South Africa’s victory over apartheid, and in the world’s struggles against injustice, and a picture of an extraordinary lawyer, judge and man, Arthur Chaskalson.
I am grateful, first of all, to the Chaskalson family, and to the informal advisory committee that helped in the process, for inviting me to write this biography. Arthur’s widow Lorraine was the person who emailed me to make the invitation; at a time when she did not find daily life easy, she welcomed my wife Teresa and me to stay with her on our research trips to South Africa, and spoke readily and in detail about the events of Arthur’s life and her own. All of the Chaskalsons have supported my work on this book, talking with me at length about Arthur and their family, and helping me to connect with others who knew him and to get access to vital documents. And at the same time they have been careful to support my writing the book that feels right to me.
The invitation to write Arthur’s biography meant a lot to me personally, because I had valued my friendship with Arthur very much. But it had an additional meaning for me, one that went back much further in my life. My father, Richard Ellmann, was a biographer; he wrote two volumes on the poet William Butler Yeats, a definitive biography of James Joyce, and at the end of his life a widely (and rightly) admired biography of Oscar Wilde. He and my mother, one of the first feminist literary critics, inhabited a world of literature and humanities that I loved but that I left in order to first practise and then teach law. I don’t regret that choice, but the chance to write a biography of Arthur was for me a chance to square the circle, by becoming – in my mid-sixties – a biographer after all.
In a classic irony of life, at almost the same moment that the Chaskalsons’ invitation arrived, I was diagnosed with cholangiocarcinoma, a rare cancer arising from the bile duct that can be particularly insidious and lethal. The Chaskalsons might have chosen to withdraw their invitation, but they did not. Instead, when my oncologist told me that I could make a two-year work commitment, I told the Chaskalsons that I would write the book that I could write in that time, and they accepted this plan and have been sensitive to my health throughout the process of writing. I’m very happy to say also that so far I have been one of the lucky ones medically; I received my diagnosis in November 2015 and am still, in early 2019, going strong. For that I’m very grateful to the dedicated physicians and staff at Memorial Sloan Kettering Cancer Center, and to the sustaining community that has arisen within the Cholangiocarcinoma Foundation. And in another surprising
