CREOLE LIBERALISM ACCORDING TO DAVIS AND WOOLMER not argue that Creole liberalism is a better option than classical

reole liberalism is a better option than classical liberalism. For

them Judge Sidney Kentridge erred in law in De Klerk v Du Plessis 4 by
unlocking the constitutional right to freedom of expression with a liberal key.
The South African Constitutional Court dealt with the issue of freedom of The authors discuss several flaws in Kentridge’s judgment: his
speech in a somewhat different context. Woolman and Davis1 call the ideology fundamentalist emphasis on the text – without allowing the text to speak for
underpinning the South African Constitution Creole Liberalism. Their Creole itself, the susceptible use of foreign authorities,5 the conservative approach to
liberalism is reminiscent of what Klare calls post-liberalism. One can also call it the role of the Constitutional Court in developing the common law at the hand of
liberalism with a human face, or liberalism with a heart, vis-à-vis classical the Constitution, and finally the judge’s rejection of the horizontal application of
liberalism with its conservative faith in the positive powers of free marketism and the Bill of Human Rights. However, these misdirections of the judge are merely
the almost messianic faith that the market and market power will order society the result of the hermeneutical key that the judge (and the concurring judges of
for the best. the Constitutional Court) uses to unlock the law.
Creole liberalism opposes the pretext of classical liberalism that the
government only has a negative responsibility not to interfere in the private lives Classical liberal political theory and the application of the doctrine
of individuals and only protects the individual from interference of these enunciated by the court in Du Plessis v De Klerk are clearly linked to
fundamental rights. Classical liberalism remains neutral between different one another. Classical liberal theory takes a view of individual freedom
ideologies of the good life. Creole liberalism, on the other hand demands that which depends upon a minimal state refraining from interference in the
the State provides active support to the visions of the good life that are not ‘private’ affairs of individuals, while simultaneously protecting
dominant in society. individuals from such interference by other members of society.6
While Klare is at pains to place his article within a mosaic of interpretive
keys, 2 in other words, within the framework of post-modernist thinking, While the interim Constitution was still uncertain on the position of
Woolman and Davis are clearly moving towards Dworkinian certainty.3 They do horizontal application, the wording of the final Constitution left no uncertainty.
Since the common law still significantly restricts the life choices of many South
1 Africans, and determine their lives, the authors conclude that classical liberal
1996: SAJHR, p 361ff. on p. 385 ff.
2
While he believes in the value of his post-liberal model, Klare states that it is not the only theory does not unlock the intention of the Constitution to transform society into
possibility (supra, p.152). See also his discussion on cultural values p. 160 ff. and legal culture, p.
166 ff. a radical, free society. Consequently, the judgment is wrong, not only because
3
I use the word Dworkinian by lack of a better word to describe the legal philosophy of American
thinker Ronald Dworkin, who maintains that even when the traditional sources of law are the judge or judges erred or misdirected themselves in applying the law, but
uncertain, the law can still provide an answer without allowing judicial discretion to become a
source of law per se. See for example 1967: The Models of Rules, University of Chicago Law
Review, Vol. 35, 1972: Hard Cases, Harvard Law Review, Vol. 88, p. 1057 ff.
However, Davis disagrees with Dworkin on one very crucial point: Dworkin does not leave room 1998: Democracy and Integrity: Making Sense of the Constitution, SAJUR, vol 14, p 127 ff.
for different results in constitutional interpretation. If the judges follows the interpretive rules of on p. 137ff.
4
applies by Hercules, J., even divide between conservative and liberal becomes irrelevant. Right 1996: (3) SA 850 (CC)
5
moral application inevitably leads to correct answers. Davis, on the other hand, maintains that the The authors point to the anomaly that the Court refers to the Namibian Constitution where
a priori application of political model determines the outcome of the interpretation. The horizontal application of the Bill of Rights is clearly determined by the direct words. However,
correctness of the interpretation is as much guaranteed by the correct hermeneutical interpretive when he discussed foreign jurisdictions, Namibia is ignored.
6
keys as by the correct a priori political understanding of the Constitution. See his later article, Op. cit. p. 382

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especially in opting for a specific hermeneutical pretext, in this case, classical judgments of the Courts are based on political theory that is not to be found in
liberal political theory. the Constitution, or when the Constitutional principles are not what the Party
Lastly, the authors pose Creole liberalism as the hermeneutical key to perceived the to be at the sittings of the Constituent Assembly10, the politicians
unlock the Constitution. While they obviously have a personal preference for and the people feel they are cheated by the system.11
7 8
Creole liberalism, their choice is posed by the Constitution itself.
Three useful insights of Woolman and Davis on the one hand and Klare
are important when we look ar Naibian judgments:
- Klare’s thesis that the literal interpreters are no less political than those
who work with a value-based hermeneutics;
- Both Klare and Woolman and Davis’ theses that political theory often
operates as a pretext or hermeneutical a priori in constitutional
interpretation; and
- Woolman and Davis’ insistence that value based judgments are not
discretionary decisions as suggested by post-modernist theorists.
Applying these insights to the Namibian Constitution, it can assist analysts
to understand the opposing views, both of the interpretations of the
professionals, the High and Supreme Court of Namibia, and that of the lay
interpreters, especially the politicians, as opposing political theory rather than a
mere difference of hermeneutics.
The legal debate between the literalists and the value-based interpreters (if
one can call the criticism of the Supreme Court under Chief Justice Mahomed
and the aggressive responses of Justice Brian O’ Linn in his judgments a
debate), of the 1990’s has always been superficial. Applying the insights above
10
to the Namibian situation, can clarify the issue and lift the debate. See the reaction of the SWAPO Party to the judgment of Justice Levy in the first Franck case in
the High Court f Namibia. When Judge Levy ruled in the High Court that permanent same sex
The insights of Woolman and Davis can also assist the analyst to discover relations are recognized by law, Home Affairs minister Jerry Ekandjo commented that the
SWAPO Party never intended to protect homosexuals or lesbians by including the word sex in the
the real frustrations of the lay interpreters, specifically the politicians of the ruling non-discriminatory clause.
11
The so-called moral majority in the United States constantly complain that “reactionary judges”
party. It is bad enough when the application of Constitutional principles frustrates interpret the American Constitution with a liberal framework that the founding fathers never
st
the clear will of the majority party 9 , or the democratic process. When the intended and that the majority of the people in 21 century USA do not want and do not condone.
In an talk show on the TV programme Praise the Lord, broadcast on Trinity Broadcasting Network
Africa on 15 October 2004 at 23h00, Christian celebrity Pat Boone interviewed several Christian
leaders. The intention of the programme was clearly to encourage conservative evangelical
7 th
They propose Creole liberalism as the response to the great ideologies of the 20 Century. See Christians to vote for Pres. Busch in the upcoming elections. Almost every speaker complained
ibid., n106, p. 395. about reactionary judges, a political-inspired bench and the system denying the majority their
8
Ibid., p.400 ff. democratic right to determine policy on issues like same sex marriages, abortion, the name of
9
See the discussion of the Kleynhans case. God in the Pledge of Alliance and prayer in schools and other government institutions.

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