Book Review: Law and Sacrifice: Towards a Post-Apartheid Theory of Law
| DOI | 10.1177/0964663906069554 |
| Date | 01 December 2006 |
| Published date | 01 December 2006 |
| Subject Matter | Articles |
BOOK REVIEWS
JOHAN VAN DER WALT, Law and Sacrifice: Towards a Post-Apartheid Theory of Law.
London: Birkbeck Law Press, 2006, 320 pp., £60 (hbk).
DOI: 10.1177/0964663906069554
‘The task of legal thought and legal theory is to retrieve friendship from the
ruins of litigation’ (p. 224)
The Preamble to the Post-apartheid Constitution of the Republic of South Africa
(1966) plainly states that its goal is to ‘lay the foundations for a democratic and open
society in which government is based on the will of the people and every citizen is
equally protected by law’. The Bill of Rights requires it to be interpreted to ‘promote
the values that underlie an open and democratic society based on human dignity,
equality and freedom’ (South African Constitution, 1996: s.39(1)(a)). The Consti-
tution also specifies that the Bill of Rights may well apply to private, as well as public
actors – a practice now commonly known as the horizontal application of constitu-
tional rights (s.8(2)). In both text and spirit, the Constitution requires the recon-
struction of South African law to eradicate apartheid both in law and society. What
would it mean to do this?
This is the question that occupies Johan van der Walt in his brilliant new book,
Law and Sacrifice: Toward a Post-Apartheid Theory of Law. The book is wide-
ranging and ambitious. In searching for a post-apartheid theory of law, van der Walt
complicates his own task enormously in two ways. First, he uses the particular situ-
ation of South Africa’s rejection of apartheid to consider the larger question of what
justice requires in law more generally. The apartheid issue serves as both a historical
setting and a narrative backdrop to the most fundamental questions about the
meaning of justice and its realization in law. The lessons gleaned from apartheid and
the fight to eradicate it therefore bubble over into legal theory in general, making the
author’s insights applicable to any legal system attempting to create a free and demo-
cratic society that treats each person with equal concern and respect. By generalizing
in this way, van der Walt asks us to ‘come to terms with the . . . potential for apartheid
in every political and judicial decision’ (p. 234). Second, van der Walt admires and
uses the analytical techniques of deconstruction, especially those promoted by
Jacques Derrida. Deconstruction, however, is generally used to take texts apart, not
to make normative arguments in favor of justice. How can one argue in favor of a
concept and deconstruct it at the same time?
Van der Walt links these two forms of ambition by highlighting one of the major
innovations of the 1996 Constitution, that is, the choice to protect constitutional
rights not only against state actors but against private actors, at least in some cases.
For example, the constitutional right to equality (South African Constitution, 1996:
s.9) combined with the constitutional rights to property (s.25) and housing (s.26)
might prohibit a landlord from refusing to rent to a family because of their race. It
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(4), 605–613
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