Politics by Other Means in South Africa Today

Rick Abel's classic Politics by Other Means (1995) used South Africa to argue for law's ‘potential nobility’, but it did so avoiding a heroic mode characteristic of much anti‐apartheid writing. Abel showed how law could, with strenuous exertion, be turned into a defensive shield for the oppressed. As a sword, however, it was ‘two‐edged’. It allowed the powerful to frustrate or overturn hard‐won symbolic victories. Recently, the heroic mode has returned to South Africa. The Constitutional Court, in particular, is lauded for having combated ‘state capture’ under deposed President Jacob Zuma. A closer examination of this period, however, does much to vindicate Abel's earlier scepticism about law's offensive value. The spectacular deployment of law to fight politicians’ crimes has exposed the judiciary to unexpected political threats. Meanwhile, civil society's efforts to entrust judges with administrative duties shirked by the government has inevitably entailed the sacrifice of some rule of law values.