The Just Judges?

If, as other chapters have argued, justice cannot exist in a racist society, there is an all-important question that presents itself: How could the judges of the apartheid era become more just in and for a post-apartheid South Africa?—a point that is even more pertinent given the importance of the new Constitutional Court. This chapter confronts this matter by focusing on the Court’s key foundational case: that dealing with the death penalty. What is presented is a contextual reconstruction and critical re-interpretation of Justice Arthur Chaskalson’s judgement to strike down capital punishment for murder in The State versus Makwanyane and Another (1995). Specifically, it is advanced that Chaskalson’s judgement was constructed through deference to Dworkinian jurisprudence and the question of human dignity—a move that meant that there was no serious attempt to interrogate how in truth, in South Africa, the death penalty was intrinsically related to the law’s complicity in creating, maintaining, and enforcing systemic racism. This, it is argued, has profound implications for the prospects of transformative constitutionalism.