14 S. Afr. J. on Hum. Rts. 146 (1998)
Legal Culture and Transformative Constitutionalism

handle is hein.journals/soafjhr14 and id is 156 raw text is: LEGAL CULTURE AND
TRANSFORMATIVE
CONSTITUTIONALISM*
KARL E KLARE**
'Our function is to interpret the text of the Constitution as it stands. Accordingly,
whatever our personal views on this fraught subject [capital punishment] might be, our
response must be a purely legal one.'
Justice Albie Sachs'
'[Ilt would be foolish to deny that the judicial process, especially in the field of
constitutional adjudication, calls for value judgments in which extra-legal considerations
may loom large.'
Justice J C Kriegler2
FOREWORD
It was a privilege to befriend and work with Etienne Mureinik toward
the end of his life. I am particularly proud that Etienne once lectured at
my university during his sabbatical in the United States. It was a minor
professional engagement for him, but it meant a lot to us. He inspired our
students with a lucid account of the legal changes occurring in South
Africa and with the brilliance, energy, intellectual daring, and uncompro-
mising commitment to justice that fueled his opposition to apartheid and
his contribution to the democratic transition. This essay seeks, doubtless
inadequately, to emulate and celebrate Etienne's example as a legal
scholar and as an engaged citizen.
INTRODUCTION
This essay focuses on adjudication as one branch of the law-making
processes of democratic societies. I take for granted the perhaps contro-
versial assumption that - because adjudicators can never be totally con-
strained by their legal sources, because no one has yet devised or is likely
* This paper grew out of two presentations to CALS Judges Conferences (at Magaliesburg,
respectively on January 23-25, 1995, and January 29-31, 1996). 1 am deeply indebted to the
Centre for Applied Legal Studies for its generous invitations to be associated with it and to
participate in these and other conferences.
** George J. & Kathleen Waters Matthews Distinguished University Professor & Professor of
Law, Northeastern University, Boston, USA.
I State v Makwanyane, 1995 (6) BCLR 665 (CC), at para. 349.
2 Id., at para. 207.

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