‘n Tentatiewe gemeenskap en die demokrasie wat moet kom – ‘n regsfilosofiese ondersoek (Afrikaans)

Abstract

This dissertation contemplates the possibility of a relationship between democracy and the democracy to come experienced from within an inoperative community of law students. The reason for this contemplation is to ascertain to what extent lawyers and law students in particular can contribute to transformation in South Africa. With transformation I envision the ongoing questioning of well known identities, opening up the structure for discourse on new possibilities of meaning. The relationship envisioned by a democracy in waiting of the democracy to come constitutes transformation. I investigate the radical and transcendental nature of human rights and democracy, to show the potential within these concepts to encompass transformation. The nature of these concepts will however allow misuse and manipulation which will be detrimental to the pursuit of transformation and democracy to come. Due to the legal nature of human rights and their entrenchment in the Constitution of the Republic of South Africa, lawyers will by means of legal interpretation be responsible for the fixture of meaning of these concepts. Even though I do not argue for a definite distinction, I identify two aspects which may influence the way in which lawyers perform legal interpretation: the structure of the law and the cultural aspect of the law or legal culture. The focus is on legal culture, as a form of community of lawyers. Due to the traditionally conservative approach of South African legal culture to legal interpretation, transformative constitutionalism, a project by means of which lawyers partake in social and political projects by means of legal interpretation, is hindered. I argue that the transformation of legal culture in itself can occur at the foundations of legal culture: tertiary legal education. I argue that law students serve as a community in which legal culture is founded continuously by means of confirmation, instead of critical contestation. Law students are unaware of the impact legal culture has on the way they are taught to think and argue about the law. A community of lawyers is therefore created which is unable to critically evaluate the law – a skill which is required to promote human rights and democracy in the pursuit of transformation. I argue for legal interpretation to be orientated towards the needs of the society being served and for meaning of rights and meaning in general to be relational and not individually centred. It is therefore necessary to rethink the idea of community – with regards to the community of lawyers of legal culture, but also with regards to the greater community being served by lawyers. Community in the true sense of the word is however always eluding us which space creates the hope for community. The residue? The inoperative community. The temporary nature of the getting together focuses on the only true common denominator – difference. What we have in common is the fact that we are different. Meaning can therefore only be temporary. I argue that law students can from this perspective create human rights and democracy discourse which can promote transformation. Copyright