Dugard’s Question: South Africa, Latin America, and Judicial Complicity in Evil Regimes

Independent judges seldom challenged, and often supported, the injustices of apartheid. South Africans have long attributed this to judicial positivism or formalism, a belief tracing back to a 1972 article by John Dugard. Dugard’s article was brave politically but flawed factually, not least in accepting positivism as an explanation for judicial behavior under National Socialism when Germans had long rejected this argument. Clearing things up matters partly because Dugard’s argument affects South African legal culture to this day. But in addition, the confidence in the German parallel, together with other chauvinisms, has prevented South Africans from looking to other examples, including strong parallels to the judiciaries of the (semi-)authoritarian states of Latin America. Does the shared interest in transformative constitutionalism today have its roots in shared past experiences of judicial complicity in evil?