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A Bittersweet Heritage: Learning from "The Making of South African Legal Culture"

Stephen Ellmann is a Professor of Law, and Director of the Office of Clinical and Experiential Learning, at New York Law School. This essay responds to Martin Chanock’s argument that race tainted the entire enterprise of South African judging. It seeks to understand how that could have been so, and looks to such driving forces as whites’guilt, denial, identity-building, self-protection, and legitimation for explanations. Then it asks whether an institution so tainted should now be altogether abandoned as part of the rebuilding of post-apartheid South Africa. The essay answers that much should be changed, but that the existence of a judiciary laying claim to a special expertise and responsibility in interpreting law and protecting rights – a key heritage of the old South Africa’s judicial system – is an important safeguard of liberty and should not be sacrificed.

(2010) 28 No 2 Law in Context 76

   
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