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ABSTRACT
Outside South Africa, the South African Constitutional Court is one of the most esteemed high courts in the world. Inside the country, however, empirical evidence suggests that the Court has been unable to build much of a store of popular legitimacy. Some scholars have suggested that the shortfall of legitimacy is of little consequence because the Court has been able to maintain its independence, largely through the largess of the government. My purpose here is to reconsider both the empirical evidence on the Court’s support and the theoretical position that judicial independence can be effectively guaranteed by the government. I find that confidence in the Constitutional Court has indeed grown since its first decade of operation. However, confidence is not the same thing as legitimacy, even if sustained confidence may evolve into institutional legitimacy, so my evidence cannot be taken to suggest that the Court has developed a “reservoir of goodwill” among the South African people. I conclude by identifying some ways in which the Constitutional Court might build its popular legitimacy, at little cost to itself or its policy-making goals. Developing their own political capital ought to be a high priority for all courts aspiring to sustainable independence.
Acknowledgements
This is a revised version of a paper presented at the Conference on ‘Twenty Years of South African Constitutionalism: Constitutional Rights, Judicial Independence, and the Transition to Democracy.' New York Law School, 13–16 November 2014. I also analyse survey data provided to me by the Institute of Justice and Reconciliation. I appreciate very much the assistance with these data of Fanie Du Toit and Kim Wale, both of IJR. I also appreciate the comments and criticisms on the earlier version of the paper from Antonia Drummond, Theunis Roux, Amanda Gouws, Penny Andrews, Heinz Klug and Alicia Salvino. Elif Ozdemir, Tommy Lucas and Alex Chen provided valuable research assistance on this project. The Honorable Dennis Davis, High Court of South Africa, offered a number of comments on this article, none of which was at all useful.
Notes
1 Some variability exists in the names of the top courts in various countries of the world. I will refer to these as ‘Constitutional Courts' but by doing so I do not necessarily make any claims about the mandates or jurisdictions of these courts. I will also refer to these as ‘high courts'.
2 Useful reviews of Legitimacy Theory can be found in Tyler (Citation2006), Gibson and Nelson (Citation2014b), and Gibson (Citation2014). Legal scholars in particular often distinguish between ‘sociological legitimacy' and ‘normative legitimacy' (e.g. Fallon Citation2005; Wells Citation2007). The latter refers to judging an institution by what the individual scholar thinks it ought to do. The former, the focus of this article, concerns empirical, non-normative consideration of the attitudes, expectations and behaviours of citizens towards the institutions that govern them. Throughout this article, I make no normative judgements about whether more or less legitimacy is desirable. For some thoughts about whether it is possible for an institution to have too much legitimacy, see Gibson and Nelson (Citation2014a).
3 I say ‘perhaps' grounded in the rule of law because judicial independences actually means that judges are free to decide however they wish to decide. Those favouring judicial independence typically make the implicit assumption that judges prefer to decide cases in accordance with the rule of law. It must be recognized that independence might also mean that judges are free to decide cases in accordance with their own ideological preferences, irrespective of the rule of law.
4 Moreover, the literature on distributive and procedural justice (e.g. Lind and Tyler Citation1988; Tyler Citation1990) teaches us that those who lose on distributive issues often find losing palatable if the procedures leading to the decision are perceived to be fair (e.g. Baird Citation2001). Similarly, Simon and Scurich (Citation2011) report some interesting findings relevant to the difference between those who are disappointed in a Court decision and those who are not (i.e. winners and losers). Their focus is on judicial reasoning, a process variable. They conclude (Citation2011, 719): ‘Participants were indifferent toward the modes of reasoning when they agreed with the outcome of the judges’ decision, but were differentially sensitive to the judicial reasoning when the judge's decision frustrated their outcome.' This finding seems compatible with Gibson's claim that ‘legitimacy is for losers' (Gibson Citation2014). However, I acknowledge that controversy exists in the literature on the causal relationships among perceived fairness, legitimacy and compliance (see Gibson Citation1989; Tyler and Rasinski Citation1991; Gibson Citation1991; see also Mondak Citation1993).
5 See Daniels and Brickhill (Citation2006) on how the South African Constitutional Court has addressed its ‘counter-majoritarian dilemma'.
6 In South Africa, scholars and practitioners alike have worried that multiculturalism might undermine the fledgling democracy (e.g. Giliomee and Simkins Citation1999). For instance, if elections are nothing more than a racial census (see Horowitz Citation1991) – if political allegiances are strongly and perhaps irrevocably tied to race – then the political pluralism so essential to democratic governance has difficulty emerging (see also Mattes, Taylor and Africa Citation1999, 236; Giliomee and Schlemmer Citation1994).
7 For an analysis of support for the basic institutions and processes of democracy within South Africa's various racial communities, see Gibson (Citation2003).
8 Nearly all of the analysis that follows posits (and finds) that orientations towards South Africa's political institutions are influenced by the race of the respondent. Because race is complicated in South Africa, Appendix A provides further discussion of the issue.
9 On the legitimacy of law and legal institutions under apartheid, see Ellmann (Citation1995).
10 I say ‘directly profit' since it is possible to argue that all South Africans profit from a set of institutions that satisfies the demands and expectations of people. Thus, minorities profit from majoritarian institutions because such institutions keep the majority happy (or, rather, in the absence of such institutions the majority would be very unhappy), thereby contributing to system stability, from which whites profit. But care should be taken with such logic since it can become Panglossian or tautological (one always profits in some way from everything). I could be said to profit from the murder of my wife because, by society punishing the murder, it reaffirms and reinforces the norm that murder is improper, thereby giving me solace and perhaps even reducing the chances of murder – even my murder – happening in the future, which is of course to my benefit.
11 Caldeira and Gibson showed some time ago (Citation1992) that, generally, elites are more likely to base their support for courts (at least the US Supreme Court) on satisfaction with its performance than on some form of institutional loyalty.
12 See http://www.ijr.org.za/political-analysis-SARB.php (accessed November 2, 2014).
13 The stem of the question read: ‘Please indicate how much confidence you have in each of the following institutions? Would you say a great deal, quite a lot, not very much or none at all?'
14 The empirical evidence is that the confidence question is in essence asking citizens whether they have confidence that the court will make decisions of which the citizen approves. Thus, the responses are not exactly retrospective assessments of institutional performance but are rather expectations about future performance. Still, performance assessments, past or future, are more akin to specific than diffuse support.
15 A debate currently exists among scholars on the question of whether evaluations of individual court rulings have much impact on legitimacy. Bartels and Johnston (Citation2013) and Christenson and Glick (Citation2015) argue that they do; Gibson and Nelson (Citation2015a, Citation2015b) argue that they do not.
16 Roughly, having ‘not very much' confidence in the Court corresponds to giving one supportive reply (1.1), while having ‘quite a lot of confidence' corresponds to one and one-half (1.5) supportive replies to the three statements.
17 In the 2001 data, I regressed confidence in the Constitutional Court on satisfaction with its performance and diffuse support. While both predictors are significantly related to confidence, the variance in confidence is considerably more strongly determined by performance satisfaction than by diffuse support. The two betas (standardized regression coefficients) are 0.39 and 0.26, respectively. This analysis confirms that satisfaction reflects performance evaluations to a greater degree than institutional support.
18 In pilot studies with students at Stony Brook University, Woodson, Gibson, and Lodge (Citation2011) found differing effects of judicial symbols depending upon whether the student was American- or foreign-born. So as to avoid that confound in the TESS study, it confined the sample to American-born members of the KN panel.
19 This is not to say that the Constitutional Court was unaware of the value of legal symbols or that they did not try to manipulate them to the advantage of the institution. It is not clear, however, that any systematic research has been undertaken on what sorts of symbols are most likely to resonate with the South African people.
20 The Center for Constitutions Transitions at NYU Law (Citation2014) appropriately refers to judicial independence as ‘relative judicial independence'.
21 For a most useful review of racial categorization under apartheid see Posel (2001).
22 The editor of a special issue of Daedalus focused on South Africa had this to say about the use of racial terms in the articles in the journal: “Many of the authors in this issue observe the South African convention of dividing the country’s population into four racial categories: white (of European descent), colored (of mixed ancestry), Indian (forebears from the Indian subcontinent), and African. The official nomenclature for ‘Africans’ has itself varied over the years, changing from ‘native’ to ‘Bantu’ in the middle of the apartheid era, and then changing again to ‘black’ or, today, ‘African/black.’ All of these terms appear in the essays that follow.” See Graubard (Citation2001, viii).