From a young age, Justice Albie Sachs played a prominent part in the struggle for justice in South Africa. As a result he was detained in solitary confinement, was subject to sleep deprivation, and eventually blown up by a car bomb that cost him an arm and the sight in one eye. Later, he returned to play an important part in drawing up South Africa’s post-apartheid Constitution, and served as a member of the Constitutional Court for fifteen years. As his time on the Court comes to an end, he has put together a book called The Strange Alchemy of Life and Law, which combines personal reflections with extracts from some of his key judgements. In the excerpt below, Sachs talks about his early life and the ways in which the dual strands of his life – ‘as lawyer and as outlaw’ – were eventually drawn together.
Life prepared me in a most bizarre way for becoming a judge. If judicial office had been my goal I was doing everything right… eight years of study and three degrees including a doctorate in law, a decade of busy practice as an advocate at the Cape Town Bar, and, later, earnestly teaching law in three continents and publishing several books, some scholarly, others autobiographical. Yet as far as the actual impact of the law on my life was concerned, everything was wrong: as a student my home was raided before dawn by the police and I was subjected to what was called a ‘banning order’ that restricted my movements and activities; while at the Bar I was twice placed in solitary confinement by the security police, first for 168 days and later for 3 months, during which I suffered torture by sleep deprivation; when I completed my doctorate I was living as a stateless person in exile in England; and some years later while doing legal research in Mozambique I was blown up by a bomb placed in my car by my country’s security agents, losing an arm and the sight of an eye.
The fact is that for much of my life I lived simultaneously as lawyer and as outlaw. Anyone who has been in clandestinity will know how split the psyche becomes when you work through the law in the public sphere, and against the law in the underground. Yet the causes were easy to understand and the resolution as obvious to predict—only when we ended apartheid and realigned the law with justice, could I become whole again. Less dangerous but more disturbing was a deeper disquiet at the centre of my legal soul, one that was aggravated by the grotesqueries of apartheid, but that had a more profound and more problematic genesis.
I first became aware of it when I was a student at the University of Cape Town. The sun streamed into our lecture rooms as I listened dutifully to professors speaking on what I have since heard described as the beautiful abstraction of norms. To pass exams I would repeat elegant textbook phrases about the rule of law, basic rights and the independence of the judiciary. Then at night, in a shack lit by flickering candles, I would conduct study classes and see the expressive eyes and mouths of desperately poor people incandescent with determination to give all their energies, even their lives, for justice and freedom. I would be deeply animated by a vitality and laughter that seemed vastly more meaningful for the achievement of justice than any of the erudite but passionless phrases of my law school. Two worlds in the same city, yet totally apart, joined by pain rather than by hope, and I did not live completely in either. For more than thirty years of my life as a lawyer I battled with this divided self. Unexpectedly, it was the bomb that blasted the schism away. The bomb literally hurled me out of my legal routine, and freed me to recreate my life from the beginning. I learnt to walk, to stand, to run… and to prepare for the writing of South Africa’s new Constitution. Suddenly, joyously and voluptuously, the grand abstract phrases of the legal text books united with and embraced the palpable passion for justice of the disenfranchised. And far from the law constituting a barricade of injustice that had to be stormed and torn down for freedom to be achieved, it became a primary instrument for accomplishing peaceful revolution. In the months and years of constitution-making that followed, the formerly contradictory influences of my life were able to synergise. If the process of making of a new basic law helped my country to heal itself, it also resolved my own deep internal contradiction.
And so it came to pass that if some people are born to be judges and some achieve judicial office, I was one of those that had judicial office happily thrust upon him. And what extraordinarily rich and intellectually exciting years have passed since the day fourteen years ago when newly-elected President Nelson Mandela appointed me and ten colleagues as members of South Africa’s first Constitutional Court.
I never took my being a judge as something natural, preordained, and unproblematic. The intensely contradictory nature of my earlier relationship to the law would not have allowed this. Furthermore, being involved in socio-legal studies in my years of exile led one to observe and interrogate what I and my colleagues were actually doing. And then I was constantly being pressed by universities and legal groups throughout the world to explain what they saw as the miracle of the establishment of a constitutional democracy in a country destined for a racial bloodbath. If you want to give credit to the miraculous without believing in miracles, you are compelled to search with particular diligence for rational explanations. How did the transition take place, and what role was I now playing as a judge?
I found myself giving presentations all over the globe on questions that were raising similar controversies in the most varied jurisdictions. The lectures, repeated over the years in places as far apart as New York, London, Delhi, Cambridge and Chicago, were collected for a possible book of essays. The bundle lacked connecting texture, so to add some starch I began to mix in extracts from judgments that had been delivered in my Court, some by myself, some by colleagues. At the very least this would show an interesting contrast between the more accessible and personalized cadences of a lecture, and the oracular and disinterested voice of a judgment. I noticed, however, that the compare-and-contrast effect of conjoining narrative text with judgment excerpts was beginning to provide my imagination with something more exciting—glimpses of a fascinating and not very obvious chemistry between my non-judicial life experiences and my decision-making as a judge. And in this way a totally new book began to construct itself within the innards of the manuscript.