Legal Realism, Transformation and the Legacy of Dugard

John Dugard’s courageous inaugural lecture drew on American realism, modern natural law and South Africa’s liberal tradition to argue that judges might better serve the ends of justice if they recognised their creative role, and replaced their subconscious prejudices and preferences with liberal values of the common law. This turn to legal realism to understand South Africa law was a significant intellectual development. However, its implications remain undeveloped within the theory and practice of law in South Africa. (Critical )legal realism raises significant questions about the nature of law and its role in sustaining public and private power. The lessons of legal realism in relation to the dominant legal method (formalism) and the nature of private law were not really taken up by lawyers and legal academics under apartheid. This meant that South African lawyers were ill-prepared for the challenges of transformation in the legal system, especially in relation to legal method, the form and content of private law and the development of law under ss 8 and 39(2) of the Constitution. Moreover, while progressive lawyers have always recognised the political nature of law – especially under apartheid – this has not always translated into a deeper understanding of how the form and content of our democratic Constitution is contested, and how law and politics seep into one another