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14 S. Afr. J. on Hum. Rts. 11 (1998)
Law as Justification: Etienne Mureinik's Conception of Legal Culture

handle is hein.journals/soafjhr14 and id is 21 raw text is: LAW AS JUSTIFICATION: ETIENNE MUREINIK'S CONCEPTION OF LEGAL CULTURE DAVID DYZENHAUS* 'If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification - a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion. Etienne Mureinik was a bred in the bone common lawyer. He loved argument, perhaps more than any other person I have known, and he was always prepared to move to its most abstract levels in order to test a line of reasoning. But argument, he thought, must not be for argument's sake; it has to be driven by practical concerns. Argument must start in some real problem and the test of its cogency is whether it helps to solve that problem. Abstraction is useful only in so far at it has consequences for practice and so abstract inquiry must be firmly bounded. This prag- matic approach to reason - reason in the cause of enlightened practice - is exactly the common lawyer's. Common lawyers, though, divide into two camps. The one with which the common-law tradition is usually associated is anti-theoretical. This camp holds that the common law is a muddle. It is for the most part the law found in various pockets of private law, each consisting of sedimen- ted layers of judicial opinions. One should not expect to disinter a co- herent set of values or principles from any particular pocket, let alone a set which might explain or justify the whole. The reason of the common law is therefore confined to practice because at most its reason can throw light on a particular problem. A quite similar view of the common law is adopted by the most vehe- ment critics of the common-law tradition. Hobbes and Bentham, to take * BA LLB (Wits) DPhil (Oxon), Professor of Law and Philosophy, University of Toronto. I thank Alfred Cockrell, John Dugard, Jonathan Klaaren, Cheryl Misak and Anthony Stein for comments on a draft of this essay. 1 E Mureinik 'A Bridge to Where?: Introducing the Interim Bill of Rights' (1994) 10 SAJHR 31 at 32.