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Journals Collection, Juta's/Acta Juridica (2000 to date)/Acta Juridica/2015 A transformative justice: Essays in honour of Pius Langa/Part III Reflections on themes in
Justice Langa's judgments/Articles/On the reciprocal relationship between the rule of law and civil society
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On the reciprocal relationship between the rule of law and civil society
2015 Acta Juridica 374
Stu Woolman*
And I'm driving a stolen car, down on Eldridge Avenue.
Each night I wait to get caught, but I never do.
She asked if I remembered the letters I wrote, when our love was young and bold.
She said last night she read those letters: and they made her feel one hundred years old.
I'm driving a stolen car, on a pitch black night, and I'm telling myself – I'm gonna be alright.
But I ride by night, and I travel in fear, that in this darkness, I will disappear.
Bruce Springsteen 'Stolen Car' The River
The reciprocal relationship between a robust rule of law culture and a truly civil, civil society is much like the relationship between the characters in
this song. Neither can subsist, meaningfully, without the other. When it works, the bond is bold. When the connection falters, no easy
rapprochement exists. How to create both – and the union between them – ab initio? That's a big ask. But it's a complex endeavour worth
undertaking. The success of South Africa's democratic project rests upon its realisation. Fail: and into that darkness, we shall disappear.
Section 1(c) of the Constitution refers to the '[s]upremacy of the constitution and the rule of law' as some of the values that are
foundational to our constitutional order. The first aspect that flows from the rule of law is the obligation of the state to provide the
necessary mechanisms for citizens to resolve disputes that arise between them. This obligation has its corollary in the right or entitlement of
every person to have access to courts or other independent forums provided by the state for the settlement of such disputes. The obligation
on the state goes further than the mere provision of the mechanisms and institutions referred to above. It is also obliged to take reasonable steps,
where possible, to ensure that large­scale disruptions in the social fabric do not occur in the wake of the execution of court orders, thus
undermining the rule of law.
Chief Justice Pius Langa,
President of the Republic of South Africa and Others v Modderklip Boerdery
2015 Acta Juridica 375
I Catch and release
I stopped at a red traffic light the other night.
Remarkable? Well, yes, given the sketchy part of Johannesburg that I was driving through that evening. Under normal circumstances, with no
cars crossing my path from any direction, I would have rolled that light. To be sure, I will do so again in the future. Life here is a moveable
feast. And one either moves or is moved.
But not that night, and not at that light.
'Why?' I asked myself, as I stopped and waited for the green robot to grant permission to proceed. What had broken my pattern of non­
compliance with the law in circumstances where I knew that the law would likely be of little or no assistance?
Three recent experiences.
Three times during a two week period in late October 2013, Johannesburg Metropolitan Police Department Officers (JMPD) directed me to
stop and to pull over. I had not trespassed. On the first occasion two officers walked up to my car. They asked for my licence, and they
checked the validity of my disc. After noting my driver's licence was about to expire, and giving me a friendly exhortation to get it sorted out,
they sent me on my way.
The following evening, at the exact same spot, another officer pointed at me and asked me to pull over. She approached from behind the left
side of my car, looked at the licence disc, said hello to my partner's two schnauzers and asked their names ('Ernie' and 'Ernestina'). She wished
me, and the dogs, a good evening.
A week and change later, after being waved through four different catchment zones, a JMPD patrol car pulled me over on the M1 just before
the Corlett Drive off ramp. They noted the manner in which my licence plate was affixed to the rear of my car. Duct tape: it had been knocked
loose by an overzealous taxi driver a day earlier. They checked my disc. Fine. They asked for my licence. This document I had absent­mindedly
left in my wallet at my partner's home in Melville. The officers were not impressed. A call to my partner likewise failed to convince. Then an
inspired moment! My publisher had just sent me additional copies of my recent monograph – The Selfless Constitution. The box lay in the trunk. I
exited the car, opened the boot and tore open the parcel. I turned to the inside back cover. It contains a photograph of me and a short bio –
including my current station in the world. The officer took it all in. He said: 'You're a big man – a university professor.' I said: 'No! You are a big
man – you enforce the law! I just write about it.' With that proof of my identity established, and our mutual admiration confirmed, he and his
partner bid me 'adieu'. Or more likely, since the emotions didn't quite rise to Casablanca heights, I received a handshake and a 'Shap, shap'.
2015 Acta Juridica 376
When I rehearsed the entire set of experiences to my partner – a sociologist who has had the opportunity to engage and to study the police
first hand – she noted that recent studies have found that when individuals have two or more positive experiences with law enforcement
officials, they tend to have a more favourable view of the police (as well as courts and other agents of the state.) It therefore occurred to me
that my recent civil engagement with local constables had, in all likelihood, led me to obey the law – at a red robot on a pitch black night in Alex
– when others might not have done so when similarly situated.
The remainder of this article provides a theoretical framework for what occurred over that month and draws its power from a number of
related disciplines (ie, sociology, social psychology, political theory, ethics and political science). Part II engages the four master narratives that
inform our understanding of the rule of law in South Africa today. It suggests how they remain incomplete and require supplementation. Part III
develops the primary thesis of this article: that a reciprocal relationship between the rule of law and civil society must be developed if the
manifold aspirations of our constitution are ever to be realised. Given the difficulties of moving from an authoritarian apartheid regime to a polity
grounded in a substantive notion of the rule of law, the remedies on offer are invariably incomplete. Part IV introduces Tom Tyler's procedural
fairness account of the rule of law: namely, that citizens consider the state 'legitimate' if the institutions which govern society treat citizens
equally, irrespective of the outcome in a given matter or most matters. Tyler has vetted this thesis, after beginning in Chicago, around the
world. Not surprisingly, while procedural fairness is undoubtedly nice to have, it does not account for what citizens in other nations deem to be
critical for the realisation of a rule of law culture in a legitimate state. Some societies emphasise common mores. Others societies stress the
efficacy of bureaucratic administration. No two countries and no two domains are alike – and none cleave to the rather arid conception Tyler
developed 25 years ago. Part V brings us back to South Africa – and the sociological studies carried out in that last few years on what South
African citizens believe the rule of law to require. It first demonstrates how the rule of law, when inextricably connected to civil society, to our
constitutive attachments and to what social capital we possess, is a necessary requirement for the pursuit of a life worth valuing in a modern,
radically heterogeneous polity such as our own. Procedure alone is insufficient. Part V goes a step further. It then demonstrates that it is the
internalisation of norms such as dignity and equal concern and respect – by governors and governed alike – that enable the rule of law to
function both vertically and horizontally. That is, we must learn to treat one another as equals without the imposition of coercion. In short,
when
a and
reciprocal
internalised
civil society,
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constitutive attachments and to what social capital we possess, is a necessary requirement for the pursuit of a life worth valuing in a modern,
radically heterogeneous polity such as our own. Procedure alone is insufficient. Part V goes a step further. It then demonstrates that it is the
internalisation of norms such as dignity and equal concern and respect – by governors and governed alike – that enable the rule of law to
function both vertically and horizontally. That is, we must learn to treat one another as equals without the imposition of coercion. In short,
when a reciprocal internalised relationship exists between the rule of law and civil society,
2015 Acta Juridica 377
the need for procedural fairness diminishes. Only once we have internalised the rules that govern one another, are we able to cooperate,
economically, socially and politically, in a manner that enables all denizens of a society to pursue lives worth valuing. Part V shows that the
convergence of views across a range of scholarly domains (and public fora) over the past several years provides cautious optimism about
building a rule of law culture, once we recognise the inextricable link that must exist between a rule of law culture and a civil society. Trust,
mutual respect, dignity, affinity, loyalty and mutual care and concern are slowly coming to be understood as central and essential features of
both. Put it this way: law enforcement officials are us, and we are them. When we realise that, and act accordingly, we create a virtuous circle
that enhances the rule of law and the flourishing of all South Africa's citizens.
II The rule of law and four South African master narratives
My adherence to the law at the red robot cannot easily be squared with the four current master narratives regarding the rule of law in South
Africa.
We are all well acquainted with the first master narrative: the Constitutional Court's foundational (and steadfast) commitment to the rule of
law. Although the capaciousness of this term of art is captured in Chief Justice Langa's ruminations above, its humdrum characterisation in Bato
Star continues to reflect the legal community's general understanding: 'Under our new constitutional order the control of public power is always
a constitutional matter.' 2 As Frank Michelman and others have noted, given the structure of our Constitution, that humdrum understanding of
the rule of law applies with equal force to both public relations and to private relations. Formally, no law and no conduct (public or private) fall
beyond the reach of the basic law. That tentacular reach is now (structurally) beyond dispute: the Constitutional Court, elevated to the
position of South Africa's highest court, possesses specific jurisdiction over a relatively small cohort of matters and effective general jurisdiction
over all disputes. 3 (As we shall see, and Michelman would surely agree, when we
2015 Acta Juridica 378
talk about the rule of law, we are concerned with far more than rationality review and jurisdiction.)
The second master narrative is the stuff of daily headlines. No less an SACP stalwart and Tripartite Alliance member than then Deputy
Minister of Public Works Jeremy Cronin railed against 'rogue' civil servants acting in 'cahoots' with 'dodgy service providers' that had swindled the
government out of billions of rand. 4 However, this master narrative extends beyond the fourth estate's regular reports of government
malfeasance. The Public Protector, the Auditor General and the Special Investigations Unit have all produced reports on widespread corruption. 5
No one banging the drum of this master narrative thinks our state (or our society) meets the threshold standards of a rule of law culture:
At a bare minimum, the point of the rule of law – and its great contribution to social and political life – is relatively simple: all actors should be
constrained by, and people should be able to rely on, the law when they act. Ideally, that requires that there be no privileged groups or
institutions exempt from the scope of the law; that in general the law be of a particular character, such that 'people will be able to be guided by it';
that institutions apply the law according to plausible legally grounded interpretations of its public terms; and that rule of law expectations and
values pervade social expectations, to a considerable extent. . . . There is more to it than this, but there is at least this much: you have a good
measure of the rule of law when the law in general does not take you by surprise or keep you guessing, when it is accessible to you as is the thought
that you might use it, when legal institutions are relatively independent of other significant social actors but not of legal doctrine, and when the
powerful forces in society, including the government, are required to act, and come in significant measure to think, within the law; when the limits
of what we imagine our options to be are set in significant part by the law and where these
2015 Acta Juridica 379
limits are widely taken seriously – when the law has integrity and it matters what the law allows and what it forbids. 6
From top­slicing on major deals, to more mundane skewing of public tender processes, to the more frightening feature of daily life in which large
portions of the population must negotiate interactions with law enforcement officials with sexual favours, daily life in South Africa is rife with
surprises.
The third master narrative is the 'WE' discourse to which we have been subject since the advent of constitutional democracy in 1994. Jeremy
Cronin's recent work has taken dead aim at this fictional 'we' and produced the corpse. 8 For example, in 1999, Nelson Mandela wrote:
For a country that not many years ago was the polecat of the world, South Africa has truly undergone a revolution in its relations with the
international community. The doors of the world have opened to SA, precisely because of our success in achieving things that humanity as a whole
holds dear. 9
The grammar of Mandela's language leads, and is meant to lead, its readers to accept two propositions: (1) we were all polecats under
apartheid; and (2) because we have implemented universally adhered to values, most especially the rule of law, we now live in a relatively
normal world. If one views Mandela's words as 'exceptional', then one might be inclined to read them as the words of the most creative
respondent to the depredations of apartheid. That is, he needed to co­opt every South African, irrespective of hue or class, in order to ensure
that they would – at the very moment of transition/revolution – understand South Africa as one nation faced with a legion of problems for which
we all are now responsible.
Others have not earned Mandela's pass. The language of the Truth and Reconciliation Commission (TRC) speaks to a more pernicious form of
amnesia, and an equally dangerous fantasy. The TRC, in attempting to build a rule of law regime that constitutes 'a bridge from the past to the
future', (or a bridge of authority to a bridge of justification), writes:
2015 Acta Juridica 380
Ordinary South Africans do not see themselves as represented by those the Commission defines as perpetrators, failing to recognise the 'little
perpetrator' in each one of us. . . . It is only by recognizing the potential for evil in each one of us that we can take full responsibility for ensuring
that such evil will never be repeated. 1 0
Are 'we' to conclude that we were all 'perpetrators'? Issues of 'relative' moral equivalence don't even begin to feature in this skewed
asymmetrical version of history, or the rule of law culture to which the Constitution – in its opening stanza – commits us.
The TRC's Final Report ought to be understood as nothing more than the very beginning of a reckoning with our shared past, in which the
actual victims of apartheid would be seen as victims (and, where possible, clearly distinguished from perpetrators and collaborators). An open
and ongoing conversation between former adversaries might ultimately result in a legal regime where all are treated with equal concern and
respect. South Africa is nowhere close to reaching its first staging post: a robust rule of law culture (along with, political accountability and an
effective bureaucracy).
We seem stuck. In an address to Parliament in 2013, Trevor Manuel stated that: '[t]he first task of the National Development Plan (NDP) is to
unite all South Africans around a common programme, of all our people around the common goal of fighting poverty and inequality.' 1 1 But do we
have a common goal of fighting poverty and inequality? To be sure, no one would declare openly that they were in favour of living in a country
with the world's highest Gini­coefficient and the worst levels of sexual and interpersonal violence in a country not wracked by a civil war. 1 2
However, the economic structures that served apartheid and colonial rule remain virtually untouched. We cannot truly expect that these
structures alone (or as they stand) would somehow reorient themselves – via the rule of law – to serving 'all of us'. Despite the cogency of
Manuel's address, the text of the NDP itself is wholly out of touch with just how far away we remain from the very first staging post. It opens
with a bizarre invocation in the first person plural:
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Now in 2030, we live in a country which we have remade . . . We feel understood . . . We feel needed . . . We feel trusted . . . We feel
accommodative . . . We feel accommodated . . . We are traders. . . . We are inventors. . . . We are workers. We create companies. . . . We set up
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stalls.
. . . We are
studious.
. . . We are gardeners. . . . We feel a call to serve.
The authors of the NDP are surely right to think that we are at least 17 years away from our first staging post. The first stanza becomes
with a bizarre invocation in the first person plural:
2015 ACTA 381
Now in 2030, we live in a country which we have remade . . . We feel understood . . . We feel needed . . . We feel trusted . . . We feel
accommodative . . . We feel accommodated . . . We are traders. . . . We are inventors. . . . We are workers. We create companies. . . . We set up
stalls. . . . We are studious. . . . We are gardeners. . . . We feel a call to serve. 1 3
The authors of the NDP are surely right to think that we are at least 17 years away from our first staging post. The first stanza becomes
substantially more suspect when it presumes that regular successful action will create the kind of social capital necessary to produce a virtuous
cycle of improvement upon improvement. It takes little notice of the fragmentation that besets us (and the disorder and disintegration in the
world around us), and how difficult such fragmentation is to overcome in radically heterogeneous societies. 1 4 On the truly odd stanza, what
can one say: that the South Africa of 2030 will look like an optimised version of the highly stratified society in which we currently reside? That
traders, venture capitalists, mine workers, multinationals, street vendors, college graduates and gardeners – as they exist in the present – will
all earn a living wage and be content with their lot seventeen years on? Cronin is right to skewer this last rule of law fairy tale. It's no more
than the rhetoric of the ruling party and business elites in our one party dominant democracy. Such a conception of 'we' is dysfunctional now.
Why would 'we' expect it to work in a score of years, or for the distribution of jobs to look roughly identical to our current economic
arrangements? We shouldn't. Nobody actually does.
Where Cronin's crisp critique runs off the rails is his buy­in to a different kind of political fantasy: agonistic democracy. 1 5 To be fair, it's also
the dominant discourse in the academy because we like to talk and believe, incorrectly, that talking is the source of the solution to most
problems. Egg­heads tend to over­valorise conversation – and, consequently, the ideals of democratic deliberation and direct political
participation.
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Call them 'we­whimsies'. 1 6 These 'we­whimsies' frustrate our efforts to first put in place the scaffolding that constitutes the primary purpose of
our Constitution: a genuine, robust rule of law culture. 1 7 The fourth master narrative possesses the coolest, most incisive eye in so far as it is
keyed to local conditions. It views states such as South Africa through the prism of recent political science literature on the fate of post­
authoritarian constitutional democracies that came into being after the fall of the Berlin Wall. 1 8 For these comparative constitutional law
scholars, the pathologies of rent­seeking behaviour and clientelism flow, largely, from extended one­party dominance. This one party dominance
not only constrains any given constitutional court from vouchsafing the barest commitments to the rule of law, it places the very project of
democratic constitutionalism at risk. From Hungary to South Africa to Venezuela to Tunisia to Moldova, the song remains largely the same. Sam
Issacharoff has recently written incisively about the 'to be expected arc' of South Africa's constitutional democracy when refracted through the
lens of comparative constitutionalism:
After a period of relative quiescence as to democratic governance, the Constitutional Court appears to be entering a third period, one whose
progress is far from set, but meriting of notice. The defining feature of this latest phase is that the ANC is now the established and dominant
political force in the country and, thus far, faces no significant political opposition. As is often the case when electoral competition recedes, the
dominant party becomes the centre for all political and economic dealings with the government, and an incestuous breed of self­serving politics
starts to take hold. In this third period, the Court is confronting some of the efforts of the ANC government to place itself beyond customary forms
of legal and democratic accountability. The
2015 Acta Juridica 383
political transcendence of the ANC limits the ability of the political system to correct course or, at the very least, has frustrated many efforts to
date. . . . Gauged from afar, the question is now whether the Court will be, and perhaps whether it can be, a restraining influence on excessive
consolidation of political power. 1 9
Although he writes quite self­consciously in the patois of comparative constitutionalism, Theunis Roux's path diverges somewhat when it comes
to possibilities and prescriptions:
Is a . . . conversion to a more populist strategy, one focused on building the Constitutional Court's institutional legitimacy, now both desirable and
possible? . . . Fortunately for the Court, the prospects for pursuing this sort of strategy have improved. As much as the ANC's descent into
factionalism threatens the Court, it also provides an opportunity to distinguish itself from the governing party. 2 0
To be stuck is not to remain stuck. Roux's conclusions are extremely modest: '[L]aw is . . . capable of shaping and constituting judicial
preferences, and in this way acting both as a significant constraint on judicial decision­making and also as a source of legitimacy.' 2 1 However,
that truth is contingent on the particularities of a given constitutional order and the unique circumstances of the polity in which it is situated,
at any given moment in time. Roux's question above – 'Is a . . . conversion to a more populist strategy . . . both desirable and possible?' – must
be taken seriously. His question anticipates concerns raised here. How much can we reasonably expect an apex constitutional court, on its own,
to contribute to the creation of a reciprocal relationship between a rule of law culture and a thicker civil society? One possible interpretation of
his question is that our expectations ought to be quite modest. 2 2 My purpose in setting out these four master narratives regarding the rule of
law in South Africa has not been to tear them down. Quite the opposite. A substantial degree of truth obtains in all four. The overall effect
should be cumulative. In acknowledging my substantial agreement, along with my occasional doubts, I hope to have set the stage for
introducing two
2015 Acta Juridica 384
additional narratives into our discussion of the rule of law in South Africa. In a moment, we'll see how Tom Tyler has, over the last 25 years,
connected the strength or the weakness of a rule of culture with a citizenry's views on the 'procedural fairness' of a state's law enforcement
institutions (from the police to the courts to administrative agencies.) Before I introduce Tyler's ideas, I wish to present some of my own views
on the reciprocal relationship between a robust rule of law culture and the internalisation of norms that govern the interactions between
members of a genuinely civil, civil society. This introduction regarding that reciprocal relationship is then used to test what I believe to be some
of the limitations of Tyler's profoundly important body of work.
III On the reciprocal relationship between the rule of law and civil society
This article offers a rather modest (and incomplete) remedy to the difficulties of moving from an authoritarian apartheid regime to a polity
grounded in a substantive notion of the rule of law. It starts with six basic axioms.
First, interactions that build mutual trust, concern, care and loyalty in individual relationships and within more formal networks and
institutions can, cumulatively, create a set of subpublics and a state identified with a deep commitment to the rule of law.
Second, a stable and procedurally fair rule of law culture and a 'civil' civil society – neither of which yet obtain in South Africa – each benefit
from this bottom­up account. If constantly tweaked, then we might eventually see state structures that enjoy greater legitimacy and a
strengthening of the various associations, networks and subpublics that constitute civil society and that provide us with (a) the better part of
life's meaning and (b) our own everyday run­of­the­mill sense of justice.
Third, it is no accident that in post­authoritarian constitutional democracies we often witness a cycling downwards both in respect for
ostensibly now legitimate makers and enforcers of law, and in the vibrancy of a civil society that had, under conditions of repression, found the
strength to reach across political divisions to bring about the demise of an illegitimate regime. Why? The historically dispossessed (or their
putative representatives) find the state, through governance and control of the public till, to be the most the immediate form of redistribution
(to a relatively limited clan). The result is rent­seeking behaviour and extractive arrangements which places the governors above the rule of law
and the governed below as supplicants. Civil society, on the other hand, finds itself fractured, post­liberation, because its driving force –
liberation – no longer obtains. The cohesion between groups joined in revolt against an authoritarian state dissipates. Various networks,
associations and communities within
2015 Acta Juridica 385
civil society that had collaborated so well together often find themselves thrown back into those narrow subpublics: to their surprise, they are
not yet members of the egalitarian pluralist social order promised by the new constitutional dispensation. What then is to be done about this
rather depressing, if common, post­authoritarian, new constitutional democracy states of affairs? Some answers can be culled from recent
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civil society that had collaborated so well together often find themselves thrown back into those narrow subpublics: to their surprise, they are
not yet members of the egalitarian pluralist social order promised by the new constitutional dispensation. What then is to be done about this
rather depressing, if common, post­authoritarian, new constitutional democracy states of affairs? Some answers can be culled from recent
literature around (a) procedural fairness mechanisms as rule­of­law development processes and (b) the still nascent body of work on how trust,
loyalty and mutual care and concern generate the large stores of social capital that animate pulsating civil societies.
Out of these two bodies of literature comes this article's fourth axiom. From a bottom up perspective, the new 'obeying the law' theories and
more mature notions of 'social capital' suggest that two or more 'positive' interactions that individuals have with law enforcement, or
bureaucratic officials, or the gatekeepers of communities and subpublics, will reinforce the commitment to the rule of law and respect for other
constituencies in a civil society. But an order of priority exists that cannot be lightly dismissed. It is true that the rule of law is essential as a
background condition for the 'civil' civil society that we, who live in radically heterogeneous cosmopolitan countries, so rightly desire.
It's false to say that the rule of law comes first (save perhaps in its coarsest Hobbesian form.) The relationship, as Krygier makes
transparently clear, is one of reciprocal effect:
At a bare minimum, the point of the rule of law – and its great contribution to social and political life – is relatively simple: all actors should be
constrained by, and people should be able to rely on, the law when they act. Ideally, that requires that there be no privileged groups or
institutions exempt from the scope of the law; that in general the law be of a particular character, such that 'people will be able to be guided by it';
. . . and that rule of law expectations and values pervade social expectations, to a considerable extent. . . . There is more to it than this, but there is
at least this much: you have a good measure of the rule of law when the law in general does not take you by surprise or keep you guessing. . . .
In doing so, the rule of law makes possible something else which is impossible without it: civil society itself, as a durable, routine state of affairs. Legal
institutions and legal rights are central to an established civil society: for it to be able to moderate – stably, routinely, and effectively – the powers
of government and the powers of each other and to mediate between government and citizens and between citizens themselves. The rule of law
is not only important for securing the infrastructural strength of states. It is also crucial for social strength. 2 3
In short, a robust rule of law relies upon and provides support for a healthy civil society. A robust civil society invests the rule of law with a
democratic
2015 Acta Juridica 386
solidarity which no more than a handful of polities have made real. Now why should that be so? The obvious answer is that democracy in its
most basic form is really no more than half a century old (and not even that in the 93 of 200 odd nations on the planet that claim that mantle).
Even if Krygier and I remain reluctant to offer a blueprint, a sketch is at hand:
Where power is routinely and reliably constrained by law, and where law counts as an integral frame and constituent of what is doable and what
is thinkable in the society, then, important conditions of civility – in particular, a lessening of fear of arbitrary power – have been attained. . . . [A]t
the horizontal level of relations among citizens, the rule of law enables and facilitates confident interaction and co­ordination among non­
intimates, which are central conditions of a modern civil society in good shape . . . It establishes fixed and knowable points in the landscape, on
the basis of which the strangers who routinely interact in modern societies can do so with some security, autonomy, and ability to choose. And so
it provides a foundation and scaffolding for the building of 'civil' relations between state and citizens and among citizens themselves. They can
begin to rely upon, rather than merely fear, the state and law. Apart from causal relationships, there is, I would suggest, a real affinity between
rule of law and civil society. Causal links are sometimes hard to trace, but a polity in which the rule of law has a deep hold is one in which restraint
is, to that extent, a cultural norm. So too respect. . . . [R]estraint and respect are norms of civility as well. So civil society and the rule of law go
well together . . . with pylons firmly planted on both sides of the divide and input moving in both directions. Or so it is when the rule of law is a living
presence in society, part of the cultural understandings of everyday life, part of the frame which bounds what is doable and even thinkable. I am
conscious that this is an idealization of virtually any legal order, but it is one approached more closely by some than others. 2 4
There then is our relationship of reciprocal effect. No one, to my knowledge, has put it better. But Krygier has seen too much, and knows better,
than to offer pat theories regarding how we might go about erecting the scaffolding for the rule of law or more detailed plans regarding the
architecture of a truly civil society. Indeed, he completes his analysis with a warning:
[T]here are two mistakes commonly made about thresholds [regarding the rule of law and civil society], or what Selznick calls 'minimum conditions
of survival'. . . . One is to ignore them. . . . But the other mistake is to overgeneralize the bearing of these conditions. Once they are satisfied, they
typically don't tell us how the phenomenon, whose basic conditions of survival have been secured, might thrive, or even what it is for it to thrive.
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This explication of the reciprocal relationship between the rule of law and civil society is critical for this paper for two reasons. As we shall see,
behavioural and legal sociologists such as Tyler have tended to approach the rule of law by asking a simple question – 'Why do people obey the
law?' The answer, oversimplified for now, is that short of pure coercion, individuals and groups obey the law when they believe that the law is
being enforced in a 'procedurally fair' fashion. That's interesting, and borne out by extensive surveys in some jurisdictions.
Krygier's analysis, as well as my own, suggest that something is missing from Tyler's important set of insights. Krygier, above, and I
elsewhere, 2 6 describe what might be called a substantive view of the rule of law, as opposed to its more desiccated, mere rationality­based
cousin. Krygier and I connect the rule of law, as we roll it out, to a thick set of ethical relationships between individuals, groups and subpublics
(in civil society), and bureaucrats, law enforcement officials and politicians (in the rest of the state apparatus.) Krygier and I do not demand
more for us than we can imagine. Nor does he demand more of the rule of law and civil society than can already be seen here and there, in
pockets, around the world. If we stop short of sketching a blueprint for the creation of a political community committed to a substantive vision
of the rule of law married to a vibrant civil society, then it is entirely understandable. No such blueprint exists – nor can it. Like pornography, 2 7
only better, we know it when we live it.
Sixth. The three catch and release interactions that I had over a two­week period – and the reflections to which they led – strongly suggest
that the internalisation of norms is not a process that occurs during our earliest, formative years and simply ends there. Unfortunately many
legal theorists writing in this space suggest that the normative world that we inhabit is predominantly static, rather than fluid. This
presupposition
2015 Acta Juridica 388
is simply not so. Throughout our lives, we invariably move back and forth between psychological positions – and moral vantage points – as the
world continually disrupts our existence in innumerable ways. 2 8
The ongoing internalisation of the norms derived from one's political community can be seen to be both fluid and palpable in my three catch
and release experiences. In all three instances, the police officers and I hoped to be treated with a certain degree of dignity, as well as mutual
care and respect. When this reciprocity – a view of the other as a genuine end­in­himself – occurred, the ambivalence we shared about our
respective place in the world dissipated. More importantly, our insecurity about the normative shape of the environment that we each inhabited
shifted. My subsequent stop at a red robot in a sketchy part of town (a shift in my behaviour) suggests that I had internalised norms about
respect for both the law and others. After all, robots are not just means of coordination (a traffic circle can accomplish the same end). They
reflect a communal desire to safeguard the well­being of others.
Similarly, as part of the internalisation of norms, I experienced a degree of 'pleasure' in the kind, professional manner in which the police
officers treated me. 2 9 In Kleinian terms, I overcame my anxiety about the degree of security that I required, found my concerns regarding law
enforcement in South Africa to diminish, and experienced satisfaction from the possibility of similar treatment in the future. I have little doubt
that the officers in question felt similarly. They saw themselves as equals in conversation after a transaction often experienced as fraught by
both parties. Only in a relationship between respectful equals – and not fawning subordinates, or manipulators of state power – would both
parties walk away feeling as if they had further internalised the norms of dignity and equality upon which our political community is predicated.
In my last encounter with the police, the internalisation of norms of mutual respect was quite palpable and deepened over the course of the
exchange. From the beginning we shared a basic commitment to the rule of law. My licence plate was affixed by duct tape after being knocked
loose by a taxi. I deserved to be pulled over. I possessed no appropriate form of identification. The phone call to my partner was, rightly,
deemed insufficient. All parties appeared willing to accept the appropriate outcome: a ticket for failure to carry proper identification. However,
when I
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exchange. From the beginning we shared a basic commitment to the rule of law. My licence plate was affixed by duct tape after being knocked
loose by a taxi. I deserved to be pulled over. I possessed no appropriate form of identification. The phone call to my partner was, rightly,
deemed insufficient. All parties appeared willing to accept the appropriate outcome: a ticket for failure to carry proper identification. However,
when I
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produced my monograph confirming my identification – my name next to my photograph – the officer read the back cover in its entirety and
acknowledged that I was in fact who I claimed to be. No negotiations of an instrumental nature took place – no hints, no whiffs, not a scintilla
of line­crossing often experienced by others. Instead, we each sensed a mutual acknowledgement for who we are as individuals and the
respective roles that we play in our community. The fact that he takes care of me (occasionally) and others (regularly) and that I take care of
educating members of our community deepened our respect and care for one another. Again: The deepening of such mutual care and concern
reflects (a) the internalisation of the legal norms of the community of which we are both apart and (b) the modest beginnings of building a
robust rule of law and the ushering in of a truly 'civil society'. As Krygier and Klein both note, the two are inextricably linked. The police officers
and I share the same society. The more we recognise (and fully internalise) our shared constitutive attachments the closer we come to
reaching our first staging post.
Does anyone reading this article really deny that the primary source of our ethical orientation toward the world flows from our early family
environs, the social endowments provided by the communities into which we are born, and the political environment that we inhabit (and that
largely dictate our life outcomes)? Only diehard members of the chattering classes might think so. But as the poor, the devoutly religious, the
clannish, the decidedly domestic and the rich will readily concede, their lives are cabined and their views determined by their immediate
networks, long­standing belief sets whose content and contours have been shaped by others, and the opportunities that affluence affords and
destitution denies. So? Despite how radically determined our lives may be, we simultaneously possess the critical resources for change. 3 0
Moreover, such change and internalisation do not occur through deliberation but, as Wittgenstein writes, through 'regular, successful action'. 3 1
Do we need to know our Freud and Klein, our Putnam and Marx, our Tyler and Krygier to understand why we blow through red lights (posing a
danger to ourselves and others), pay bribes to police officers (undermining the very system of law that we hope will provide us with a degree of
security) or shoot dead our neighbours with a bullet through the head for no more than a flat screen television? No. We know that others have
not had their basic needs met. We know insufficient state or social structures exist to enforce the law. We know that we often care little for
others because they have failed to show us the minimum level of concern and
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respect. Under such circumstances, we fail to internalise the norms associated with the rule of law and the associations and communities that
exist in a 'civil' civil society. Without rough equality, a nascent sense of procedural justice associated with the rule of law, and the trust, loyalty,
friendship and shared ways of being in the world associated with the communities that form civil society, it's simply impossible to expect
individuals to place a value on the lives of others. 3 2
IV Tyler on why people obey the law
(1) Early Tyler
For over two decades, Tom Tyler has continually posed a question whose answer seems so obvious at first glance, but clearly isn't. Why do
people obey the law?
Put police on the streets, keep the robots in order, and people will generally comply with the law because they prefer compliance to jail or to
hefty fines. There's certainly something to the notion that most people obey the law because they don't want to spend a night in lock­up or
years in a state penitentiary as a fellow inmate's consort. A large number of contemporary authors still, and with some merit, believe that 'fear',
'terror' and 'state violence' drive compliance and give the law its authority. Peter d'Errico contends that the very framework of our system of
laws is designed to perpetuate its own power: 'The concept of civil rights . . . has meaning only in the context of an over­arching system of
legal power against which the civil rights are supposed to protect.' 3 3 Writing in a similar vein, Peter Kropotkin rather sardonically observes:
'Whatever this law might be,' since 'The Terror' of the guillotine­happy French Revolution 'it [has] promised to affect lord and peasant alike; it
proclaimed the equality of rich and poor before the judge.' 3 4
As should be clear from the four master narratives delineated at the outset, and my own contribution above, the rule of law is far from a
fraud. The rule of law, properly understood, is both a necessary requirement and a constitutive condition for the pursuit of a life worth valuing in
a modern, radically heterogeneous society. I have, at the same time, noted that the four master narratives, and my own gloss on the subject
are incomplete. If so, is there something else at work?
2015 Acta Juridica 391
That 'something else' could be one way of understanding one of Tyler's original findings that 82 per cent of his rather large sample believe the
following statement to be true: 'People should obey the law even if it goes against what they think is right.' 3 5 However, as Tyler notes early on,
coercion and fear only get the state so far in a reasonably free (but not perfect) society. Fear and force are resource intensive and require the
state to be present in every nook and cranny. Most 'functional' contemporary states (even with ever accelerating electronic surveillance, and
diminishing privacy) do not function in this manner. The United States, with all its Wiki­leak associated problems and police­initiated homicides,
still does not possess law enforcement machinery that operates like the military­mercantilist junta that runs China.
Given the absence of state machinery to punish every breach of the law or to prevent its very occurrence, what then explains the '82 per
cent'? Tyler begins his explanation (circa 1990) as follows:
The Chicago study's examination of legitimacy and compliance suggests several reasons why people obey the law. One is their instrumental
concern with being caught and punished: people typically think it quite likely that this will happen if they commit serious crimes. . . . Obedience to
the law is also strongly linked to people's personal morality. The data suggest a general feeling among respondents that law breaking is morally
wrong. A similarly strong feeling emerges in the case of the perceived obligation to obey the law. Most of the respondents interviewed felt obliged
to obey the law and the directives of legal authorities. In contrast to the strong normative commitment found in studying personal morality and
perceived obligation to obey the law, support for the police and courts was not particularly high, and neither were evaluations of their
performance. This does not mean, however, that dissatisfaction with the police or the courts is widespread. 3 6
Given that non­instrumental reasons or deeply substantive moral explanations do not appear to explain the high levels of obedience to and
compliance with the law, Tyler suspects that 'something else' is going on. Moreover, this 'something else' must be able to account for subtle
distinctions that the participants in this study – conducted in largely urban Chicago – drew between systemic unfairness and unfairness as
experienced by the subject. Tyler writes:
A similar distinction between general judgments and feelings about the self can be found in responses to questions about discrimination. When
respondents were asked whether the police treated citizens equally or favored some citizens over others, 74 percent said there was favoritism;
72 percent made the same statement about the courts. When asked whether people like themselves were
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discriminated against, however, most respondents said no (75 percent for the police, 77 percent for the courts). People see widespread
unfairness, yet do not see themselves as being discriminated against. 3 7
These numbers are enlightening.
In a city such as Chicago, the number of African­Americans in a representative study will invariably be quite high. Moreover, everyone in the
United States knows that a staggering one out of three African­American males passes through the criminal justice system. One out of three.
Yet the vast majority of individuals in this study neither felt personally discriminated against nor did they believe that the existence of some
systemic discrimination is grounds for disobedience. Tyler now has a bead on our $64,000 question. Why, when the police are not everywhere,
and the system is seen to favour whites over blacks, rich over poor, do people still continue to obey the law? Why, for example, did the author
of this article sit at a red robot in a sketchy part of town where no law enforcement officials or surveillance cameras were likely to be found?
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describes procedural fairness (or procedural justice) as follows:
Yet the vast majority of individuals in this study neither felt personally discriminated against nor did they believe that the existence of some
systemic discrimination is grounds for disobedience. Tyler now has a bead on our $64,000 question. Why, when the police are not everywhere,
and the system is seen to favour whites over blacks, rich over poor, do people still continue to obey the law? Why, for example, did the author
of this article sit at a red robot in a sketchy part of town where no law enforcement officials or surveillance cameras were likely to be found?
Tyler's answer, in short, is the procedural fairness (or procedural justice) as experienced by the individuals in the study themselves. Tyler
describes procedural fairness (or procedural justice) as follows:
Theories of procedural justice or [procedural fairness] suggest that people focus on court procedures, not on the outcomes of their experiences. If
the judge treats them fairly by listening to their arguments and considering them, by being neutral, and by stating good reasons for his or her
decision, people will react positively to their experience, whether or not they receive a favorable outcome. 3 8
This explanation possesses more than a patina of plausibility. Individuals who arbitrate cases, and who mainly serve to provide recommendations
as opposed to decisions, will recognise how 'listening' to others often changes the entire temperature of an informal proceeding. When people
are gently asked their account of what happened and why, and are treated with dignity, they tend tell their story as best as they possibly can
and express appreciation for being given the opportunity to be heard.
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These two notions of 'fairness as listening' share much in common – at least on the surface. Deep listening – whether it occurs in the
classroom, in the courtroom, on a psychoanalyst's couch or in a police station – can have a profound effect on how the person responds to
judgements by law enforcement officials or observations offered in counselling or in the classroom.
(2) What Tyler's (early) account misses: Constitutive attachments, social capital and the internalisation of norms
The profound effect described above emanates from the seriousness – the dignity, the care, the respect, the concern, the tolerance, the trust,
the loyalty and the recognition of the other individual as an end in herself – with which the police officer or the analyst or the professor or any
deep listening interlocutor acknowledges the subject. In the course of an exchange, a relationship is formed. If properly structured, that
relationship deepens over time. The ongoing reciprocal effect of the relationship between the analyst and analysand, the teacher and the
student, or the more mundane and perhaps fundamentally more important day to day listening relationships between colleagues, friends, or
neighbours, generates ever increasing amounts of social capital. This social capital – made up as it of loyalty, concern, trust, friendship, dignity
and mutual respect – enables us to sustain the communities, associations, institutions, networks and relationships where virtually all meaningful
action takes place. How constitutive attachments and social capital relate to the rule of law and procedural fairness are taken up in the next
two subsections.
(a) Constitutive attachments
It is trite to note that outside society, individual flourishing is a meaningless notion. Only within the various practices, forms of life, or language
games that social groups provide do we become anything that remotely approximates what we understand to be human.
Here is a somewhat more expansive account. We often speak of the social practices, endowments and associations that make up our lives as
if we were largely free to choose them or make them up as we go along. It just ain't so. Michael Walzer writes that there is a 'radical givenness'
to our social world and the practices that make it up. 3 9 What he means, in short, is that virtually all of the practices that constitute the
setting for individual lives are involuntary. We don't choose our family. We generally don't choose our race or religion or ethnicity or nationality or
class or citizenship. Moreover, even when we appear to have the space to exercise
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choice, we rarely create the practices available to us. The vast majority of our practices and forms of life are already there, culturally
determined entities that pre­date our existence or, at the very least, our recognition of the need for them. Finally, even when we overcome
inertia and do create some new practice (and let me not be understood to underestimate the value of such overcoming and creativity), the
very structure and style of the practice is almost invariably based upon an existing rubric. Corporations, marriages (irrespective of sexual
orientation), co­edited and co­authored publications are modelled upon existing associational forms. Even in times of radical transformation,
mimicry of existing social practices is the norm.
Perhaps Walzer's most interesting challenge flows from his invitation to think of what it might mean for individuals to lack involuntary
associational ties, to be 'unbound, utterly free?' 4 0 One image might be that of wild horses. But this very image is the antithesis of what makes
us human. We are human, and not feral, because of the involuntary practices into which we are born and which have been sustained and
developed over time. Even schools designed to enable us to make the most of our 'freedom' do not let us do whatever we so wish. We have to
learn to be free. It is more accurate to say that we must learn how to flourish. Even assuming that we could learn all that which might make us
fully human, we would never cross over into the domain of the undetermined and unconditioned. Flourishing would remain predicated upon
practices that were and continue to be involuntary in important respects. 4 1
This account of the involuntariness of social life is not meant to undermine the importance of the rule of law and procedural fairness for
individual and group flourishing in any truly complex, radically heterogeneous, democratic society. How the rule of law and procedural fairness
plays out in our law enforcement system must be constantly negotiated and renegotiated. Moreover, it is the strength of a rule of law culture
that enables us to continue enjoying the benefits of the communities, associations and subpublics of which we are members.
There can be no end when it comes to the effort necessary to sustain the relationships that bind us in associational life and to maintain the
rule of law that creates a system of governance that makes those relationships possible. Moreover, we've seen that the relationships within rule
of law institutions and practices take a similar form to those relationships found
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in other forms of life: they require trust, equal concern, care, dignity and loyalty that flow in both directions.
The emphasis on involuntariness in social life is, therefore, only meant to partially bracket Tyler's early account of the 'why people obey the
law' and what gives a rule of law culture its legitimacy. A reasonably equal and democratic society must mediate the givenness of our social life,
and the aspirations all of us have to gravitate towards those social forms of life which still fit and away from those which do not. It is often the
case, however, that not choosing to leave an association, but to stay, is what we truly cherish as freedom. The rule of law – and procedural
fairness – must protect such decisions. Indeed, as Walzer suggests, we ought to call such decisions to reaffirm our conditioned commitments
'freedom simply, without qualification.' 4 2 It is, for the most part, he concludes, 'the only "freedom" that free men and women can ever have.' 4 3
The reason, then, that we so highly value procedural fairness is that law enforcement officials and citizens committed to the rule of law protect
those aspects of freedom and civil society that we value most.
(b) The relationship of social capital to the rule of law and procedural fairness
Social capital is – and is a function of – our collective effort to build and to fortify the things that matter. It is our collective grit and elbow
grease, our relationships and their constantly re­affirmed vows. Social capital emphasises the extent to which our capacity to do anything is
contingent upon the creation and maintenance of forms of association which provide both the tools and the setting for meaningful action. Social
capital is often treated as ephemera. That makes sense. It is so hard to see. In fact, it is this elusive quality that makes social capital so
fragile. It is made up, after all, not of bricks and mortar, but of relationships and commitments, and the trust, respect and loyalty upon which
they are dependent. In Bowling Alone, Robert Putnam provides a helpful distinction: 'Whereas physical capital refers to physical objects and
human capital to the properties of individuals, social capital refers to social networks and the norms of reciprocity and trustworthiness that arise
from them.' 4 4 Social capital can be understood to buttress my insistence on an inextricable link between a rule of law culture and a vibrant civil
society.
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Social capital is what keeps our intimate, economic, political, cultural, traditional, reformist and religious associations – as well as our legal
order – going. Without it, nothing works. Social capital recognises that we store the better part of our meaning in fundamentally involuntary
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associations.
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Social capital is what keeps our intimate, economic, political, cultural, traditional, reformist and religious associations – as well as our legal
order – going. Without it, nothing works. Social capital recognises that we store the better part of our meaning in fundamentally involuntary
associations. Squander that social capital, and nothing that matters can continue to exist. Social capital takes seriously the threat of various
kinds of compelled association. Trust, respect and loyalty have no meaning where the association is coerced. These several virtues can be
earned, but never commanded. No trust, respect or loyalty: no social capital. 4 5 No social capital: none but the most debased forms of (social)
life, and no room for building the kind of robust rule of law culture that our aspirant constitutional democracy envisages.
However, not all social capital formations possess the same structure: some take the form of bonding networks, others take the form of
bridging networks. Putnam puts the difference between these two distinct forms of social capital networks as follows:
Some forms of capital are, by choice or necessity, inward looking and tend to reinforce exclusive identities and homogeneous groups. Examples of
bonding social capital include ethnic fraternal organizations, church­based women's reading groups, and fashionable country clubs. Other
networks are outward looking and encompass people across diverse social cleavages. Examples of bridging social capital include the civil rights
movement, many youth service groups, and ecumenical religious organizations. . . . Bonding social capital provides a kind of sociological superglue
whereas bridging social capital provides a sociological WD­40. 4 6
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One way to distinguish the two networks would be, as Halpern notes, to 'contrast the strong bonds of reciprocity and care that are found inside
families and small communities (what we might call normative bonding networks) with the [at least initially] self­interested norms that tend to
predominate between relative strangers . . . and through which relative strangers can co­operate successfully (what we might call normative
bridging networks.)' 4 7 But that's just a start.
High bonding communities tend to feature well­established, historically entrenched belief sets, shared assets and rather rigid rules regarding
membership, voice and exit (as well as mechanisms for the use of those rules). Bridging networks are often extra­communal and bring together
rather diverse groups of individuals in the pursuit of singular, generally self­interested ends. Membership, voice and exit tend to be both more
flexible and more formal in bridging networks. On this account, rule of law institutions play an essential role in maintaining bonding networks,
mediating disputes between bonding networking and facilitating the growth of strictly formal relationships in bridging networks into something
deeper and more meaningful.
(c) The antecedence of the internalisation of norms
To understand the reciprocal relationship between rule of law and civil society, it's worth fleshing out that last sentence. First, the rule of law
plays a critical role in ensuring that citizens have relatively equal access to bridging networks – especially those networks that create access to
basic goods. Once the rule of law enables us to meet as relative equals in
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bridging networks, we can form new bonding networks that create an even more vibrant civil society.
We can now link Tyler's concern with procedural fairness to something deeper: 'civility'. What ties citizens to the law – and to respect the
judgment of the others – is parasitic on the respect that they accord one another, in both the public sphere and the private sphere. In a robust
rule of law culture and a vibrant civil society we place our trust in the hands of others because we expect them to treat us as ends, and
never solely as means. The expectation that we shall be seen as ends­in­ourselves – and never solely as means – explains why Krygier links the
development of a robust rule of law culture to the emergence of a vibrant civil society.
(3) Why Tyler's initial insistence on neutrality as the psychological basis for procedural fairness appears incomplete
The priority of dignity, of mutual concern and respect, of loyalty, of care, of friendship, of reciprocity in the civil sphere throws something of a
large question mark over Tyler's initial insistence that neutrality is the primary driving factor or psychological basis for procedural fairness.
Consider your average beat cop. She walks a neighbourhood and gets to know the people in the community. Such a relationship is reciprocal
in nature. The beat cop – all things being equal – wants the community that she guards to be safe and free of anxiety so that they can go
about their normal daily activities. The members want much the same from this custodian of their lives. Over time, the beat cop and the
members of the community come to understand that their interests are largely co­extensive. They assist one another in both preventing crime
and responding to problems before they become crimes or even mere nuisances.
My three experiences with three different sets of Johannesburg Metropolitan Police Officers suggest the same kind of reciprocal relationship. I
need them to keep the streets safe – and regular license and disk checks suggest that they are trying to do so. Our interactions reflected
mutual respect and dignity. I never contested the manner in which they discharged their responsibility: when I was able to establish that I was
in fact who I claimed to be, I was accorded the respect and the dignity that I expected as a member of the community whose rules they
enforce. The regular experience of mutual respect, friendliness, trust, dignity and even loyalty over a short span of time led me to reconceive
the legal environment about me as both fair and legitimate. I stopped at the red robot.
Let's not over­egg the pudding. South Africa experiences extraordinarily high levels of violence and the world's highest level of sexual
violence in a country not at war or riven by civil war. The police services have been unable to put a significant dent in those figures. Moreover,
as reports from
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oversight agencies such as the Public Protector and Auditor General have shown, our security services remain plagued by corruption.
48
All that being said, my response to proper police conduct seemed, upon reflection, to be consistent with their treatment of me as end­in­
myself entitled to equal concern and respect, dignity, friendliness and care – call it civility. From this vantage point, Krygier's explanation for the
relationship between the rule of law and civil society seems somewhat more compelling. Neutrality seems too weak to capture the reciprocal
nature of these interactions.
Moreover, even the participants in Tyler's survey would appear to diverge, somewhat, with his characterisation of the police and court
systems that serve them. On his own account, they don't trust the system to be even­handed or neutral. They believe that the system is in
fact going to favour some individuals and groups over others – be it in terms of class, race, gender, ethnicity or public power.
What Tyler's initial survey does reveal is that the 82 per cent of people who said one should obey the law have not themselves been the
object of discrimination, nor do they expect to be. It's not so much the system that they trust to be neutral, but the lived experience of having
been treated as an object of mutual concern, care and consideration.
I don't mean to deny that Tyler shows that the participants in the Chicago survey do not have some reasonable expectation (a) that 'all
citizens, and the governors and the governed alike are going to be subject to the same set of rules' and (b) that this expectation of procedural
fairness leads them to obey the laws and consider the legal order to be largely legitimate. What my analysis and Tyler's own subjects reflect is
that there is an antecedent psychological relationship between (a) members of the community who are only members of civil society and (b)
members of the community who are also members of the law enforcement mechanisms of the state. Let's call that shared psychological
relationship 'civility'. Once we describe this relationship in terms of civility (and not neutrality) it becomes possible to see the reciprocal effect
between building a rule of law culture and the creation of a vibrant civil society more clearly.
V General developments in Tyler's work and its application to South Africa
(1) Recent studies and some apparent changes in the psychological underpinnings of Tyler's analysis in England and Wales
In a 2012 study conducted in England and Wales called 'Why Do People Comply with the Law?', Tyler (along with four fellow authors) sought to
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determine whether his findings and his conclusions in the United States had purchase in another country. Although the United States, England
V General developments in Tyler's work and its application to South Africa
(1) Recent studies and some apparent changes in the psychological underpinnings of Tyler's analysis in England and Wales
In a 2012 study conducted in England and Wales called 'Why Do People Comply with the Law?', Tyler (along with four fellow authors) sought to
2015 Acta Juridica 400
determine whether his findings and his conclusions in the United States had purchase in another country. Although the United States, England
and Wales have similar legal traditions, they employ different political institutions, and, more importantly, possess dramatically different historical
narratives as peoples and nations. 4 9 The study's conclusions are not that surprising – given my analysis of Tyler's work on its own terms.
However, as I note below, the real surprise does not flow from different responses to the same study protocols.
Unlike the US­based studies, the England/Wales study showed that procedural fairness was not the dominant consideration for the citizens'
compliance with the law. The England/Wales study revealed that (a) procedural fairness and (b) the moral/normative alignment of the
community and the behaviour of various law enforcement officials played an equally strong role with respect to an overall sense of the legal
system's legitimacy by the English and the Welsh.
That should come as little surprise given the manner in which society, polity and history more readily map on to one another in England and in
Wales. One member should reasonably expect another member of those same communities to behave in the same manner – ethically, legally, and
socially. 5 0 All members of the various communities that make up England and Wales share a similar sensibility. It means something to be 'English'
or 'Welsh' in a way it does not for someone to be 'American'.
Here then is the critical difference between Tyler's original US­based studies and the study conducted in England and Wales: the general
population expected that the police and other law enforcement officials would operate within the same ethical framework as those they
governed. Failure to do so would result in the refusal to comply with the law and its consequent diminishment in legitimacy. For the English and
the Welsh, the law is embedded in a complex matrix of social relations and expectations that provide ties understood to bind the governed and
the governors alike.
A careful reader might now be inclined to say that these findings probably suggest that Tyler hasn't genuinely appreciated (or foreseen) my
argument nor accounted for them in his data in two distinct jurisdictions. Had Tyler and others done so, the US and England and might not look
so different. No. Tyler did appreciate some of the significant differences in the two jurisdictions. However, had he and his acolytes read this
piece
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earlier, then they might have asked different questions that revealed underlying commonalities and ongoing differences.
(2) Recent studies and some apparent changes in the psychological underpinnings of Tyler's analysis in sub­Saharan
Africa
Given the relative fragility and apparent fragmentation of many sub­Saharan countries over the last two decades, one might expect that their
short histories would not ground or legitimate the legal system in the same manner as such established jurisdictions as the United States and
the United Kingdom. That would be right.
But it would not mean that prima facie grounds for legitimacy and for compliance with the law might not otherwise exist. Post­colonial and
post­authoritarian rule has given way to generally popular democratic sovereignty. Of course, self­rule is not a free pass, however much the
new political elite might want it to be. Trust must still be earned.
Those two poles, the legitimacy of self­rule and the legitimacy that flows from trust, became, by and large, the basis for Tyler and company's
first venture into Africa. What Margaret Levi, Audrey Sacks and Tom Tyler found in 2009 might come as some surprise. By and large, citizens in
Sub­Saharan Africa count their governments as trustworthy. Here are the numbers: 'The average respondent has a predicted probability of 74%
of accepting the tax department's authority, a probability of 82% of accepting the police's authority, and a probability of 78% of accepting the
court's authority.' 5 1 (South Africa happens to fall in the middle of the Afrobarometer numbers (used in the Levi­Sachs­Tyler study) for 2013.)
The acceptance turns on the broad notion of a 'trustworthy government'. Trustworthiness is, in turn, a function of several factors: (a)
administrative competence, (b) enforcement and monitoring of regulations and laws, (c) procedural fairness, and (d) honesty and tolerable
levels of corruption, cronyism and clientalism (to use Issacharoff's alliterative troika.)
The authors' shift to 'trustworthiness' rather than neutrality is consistent with my emphasis on the reciprocal relationship between building
the rule of law and the creation of a civil society. Read carefully what the authors had to say:
A trust evaluation depends on assessments of the intentions of the governors, the quality of government performance, and its administrative
competence. Government leaders who credibly commit to serve the welfare of the whole population improve their capacity to elicit confidence in
the government they manage. Governments that provide services and protections that bolster citizen welfare
2015 Acta Juridica 402
or are demonstrably developing the capacity to do so should be more likely to elicit the willing deference of citizens. 5 2
Exploitation under colonial or authoritarian rule is no longer a dominant driver of citizens' concerns in sub­Saharan Africa. What they want, quite
clearly, is a government that allows them to get on with their lives by providing those public goods that facilitate their own conceptions of lives
worth valuing. The better able the government demonstrates itself to be in delivering the basic framework of a well­ordered society – one that
allows people to pursue their desired ends – the more likely the government is to secure the trust of the people – and thus its legitimacy.
There, in short, is your reciprocal relationship between the rule of law and civil society. So long as individuals and groups perceive the state
as enabling them to flourish, they are more likely to view the government as doing more than discharging the requirements of a minimalist
conception of the rule of law. Instead, they will perceive the state as committed to a set of reciprocal responsibilities that bear substantially
greater heft. Recall again that trust is a capstone of social capital and civil society theory. It comes as little surprise that citizens now feel that
their fellow citizens qua governors should look out for and care for the well­being of citizens qua governed. 5 3
Here then is that beautiful cycle of virtue: the more the government provides the conditions under which its citizens can flourish, the greater
the trust and legitimacy of government. And the greater the trust and legitimacy of government, the more the state will be able to do for its
citizens because they are, in fact, complying with the law. The state and the constituent members of civil society will get on with pursuing (a)
justice and (b) various visions of the good life.
(3) Groups and communities in Tyler's later work
Although procedural fairness remains the lynchpin of Tyler's work, he has not been afraid to determine the extent to which his original studies
both captured all that might be going on with respect to legitimacy and the rule of law and the extent to which his original analysis in the US
required modification in other jurisdictions. His study of England and Wales, for example, required a shift from 'neutrality' to something that lies
at the heart of civil society and social capital theory – a kinship in which the governed members of a community have an expectation that law
enforcement officials and judges will share a view of the world largely consistent with their own. We have seen in his study of sub­Saharan
2015 Acta Juridica 403
Africa that 'trust' – another lynchpin of social capital and civil society theory – displaces 'neutrality' and 'procedural fairness' as the dominant
drivers of legitimacy and compliance. Instead, we see an expectation that in post­colonial, post­authoritarian societies, the new agents of the
state are understood to be part of, and not outside of, or above, the communities that they must govern. Both studies, and a spate of other
recent works, show that although Tyler has a predisposition to view 'obedience' from the perspective of procedural fairness, he is not tone deaf
to the relationship of the legitimacy of legal orders to the communities in which they are situated. Moreover, he seems increasingly aware of
how groups, voluntary associations, 5 4 community self­identification 5 5 and shared historical and ethical frameworks play a role in how citizens
view the manner in which the law is enforced.
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VI Barolsky on South African responses to the behaviour of the security services and the extension
recent works, show that although Tyler has a predisposition to view 'obedience' from the perspective of procedural fairness, he is not tone deaf
to the relationship of the legitimacy of legal orders to the communities in which they are situated. Moreover, he seems increasingly aware of
how groups, voluntary associations, 5 4 community self­identification 5 5 and shared historical and ethical frameworks play a role in how citizens
view the manner in which the law is enforced.
VI Barolsky on South African responses to the behaviour of the security services and the extension
of Tyler's work into South Africa
It's important to note that Tyler's team of researchers – conducting polls amongst the masses – are not the only academics providing insight
into average citizens' views on the rule of law and the legitimacy of those entities charged with executing the law. Vanessa Barolsky's extensive
exploration of these subjects – through focus groups – deserves a hearing.
By and large, the voices captured in Barolsky's focus groups reflect a deep­seated mistrust of the 'people of the law'. As a member of the
'Zamdela Informal Settlement Focus Group' put it: 'The law people are not right.' 5 6 As to jackboot policing, a 'Focus Group Respondent on the
Police in Alexandra Township' put matters thus: 'As the people of the law, they should be telling us and teaching us about law. But if they take
the law and put it under their boots, the boots are heavy and the law heavy too.' 5 7
However, as Barolsky demonstrates, the actual nature of policing is not nearly as black and white as the quotations above would allow. In
focus group after focus group, what emerges are the myriad forms in which ordinary citizens must negotiate their way through the justice
system. The
2015 Acta Juridica 404
most pernicious practices embrace the obligation of women to provide sexual services in return for assistance and protection. (It's a transaction
as old and as rank as humanity itself.) The responses generally trend toward the excessive use of force – partly for perverse pleasure, partly to
extract currency – during everyday interactions. What makes these interactions even more textured, if no less brutal, is that police officers are
often members of the communities that they have taken an oath to serve.
Although Barolsky does not draw the following conclusion, the absence of the state, its structures and its representatives in focus group
after focus group suggests that the police are often viewed as 'the State'. While the police may bounce back and forth from supine and
lethargic to ruthless and inhumane, it's hardly surprising that they extract various forms of taxation from the communities that they govern.
They are, for many South Africans, the Leviathan.
Yet within the wreckage, a trunk full of gold can be found. Barolsky's analysis of her focus groups demonstrates that after two or more
positive experiences with the police, the positive attitudes toward the legitimacy of the legal system and the trustworthiness of the police force
generally increases dramatically. That's significant: For these findings are consistent with the intuitions that animated this article – my three
interactions with the police. Most people wish to be treated with respect and accorded dignity. The police, and the members of the communities
that they serve, are no different.
Barolsky's insights, and those gleaned from her fieldwork, find support elsewhere in recent literature. In a contemporaneously published Tyler­
based work by Bradford, Huq, Jackson and Roberts, the authors acknowledged that the creation of a rule of law culture and a vibrant civil
society faces unique challenges in South Africa:
Significant numbers of citizens believe their social identities, cultural values, or material interests are in conflict with those of others around them.
Divided societies face distinctive problems in maintaining public order and security against crime, with police activities struggling to cohere around
commonly accepted means and ends. 5 8
While recognising the calls by others for 'effectively investigating violent crime and providing rapid and fair interventions whenever citizens call
for help in emergencies,' 5 9 the authors found that 'legitimacy' and respect for the rule of law flowed in large part from 'strong associations
between
2015 Acta Juridica 405
personal contact with officers'. 6 0 That personal contact returns us to theories of social capital that identify trust, loyalty, mutual respect and
bonding networks of varying types as critical for the formation of both a vibrant civil society and a strong, internalised, rule of law culture.
'Personal experience matters', Bradford and company write, 'and, arguably, mundane encounters between police and public, and people's
assessments of the probity of the police, offer the best chance for improving legitimacy.' 6 1
Trust. Mutual Respect. Dignity. Care. Loyalty. Concern. These critical features of the reciprocal relationship between a rule of law culture and
a strong civil society are, finally, beginning to displace 'neutrality' as the core features of 'legitimacy' in Tyler­based analyses. The authors are
quick to note that reliance on such features constitutes a double­edged sword. Barolsky's focus groups reflect manifold instances in which
these features do not obtain. Yet Bradford, Huq, Jackson and Roberts, as well as Barolsky, support my contention that the more positive face­
to­face (reciprocal) interactions citizens have with the police, the more positive the public's view of our law enforcement system will be.
VII Conclusion
62
The convergence of views across a range of scholarly domains (and public fora) over the past several years provides cautious optimism for this
2015 Acta Juridica 406
article's contention that a reciprocal relationship exists between a rule of law culture and a 'civil' civil society. Trust, mutual respect, dignity,
affinity, loyalty and mutual care and concern are slowly coming to be understood as central and essential features of both rule of law cultures
and burgeoning civil societies. Put it this way: law enforcement officials are us, and we are them. When we realise that, and act accordingly,
we create a virtuous circle that enhances the rule of law and the flourishing of all the state's citizens.
* Professor of Law and Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand, Johannesburg; BA
(Hons) (Wesleyan) MA (Columbia) JD (Columbia Law) PhD (Pretoria).
1 2005 (5) SA 3 (CC) (emphasis added).
2 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Another 2004 (4) SA 490 (CC) para 22. See also Ex Parte President of the Republic of
South Africa: In re Pharmaceutical Manufacturers Association of South Africa 2000 (2) SA 674 (CC) para 33; Affordable Medicines Trust and Others v Minister of
Health and Another 2005 (6) BCLR 529 (CC) paras 24 and 108.
3 The 17th Amendment turned the Constitutional Court into our apex court with respect to all matters of general jurisdiction. On how matters stood prior to the
17th Amendment, and remain largely unchanged, see F Michelman 'The rule of law, legality and the supremacy of the Constitution' in S Woolman & M Bishop
(eds) Constitutional Law of South Africa 2 ed (2008) 11–10 to 11–11 citing Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) and Phoebus Apollo Aviation
CC v Minister of Public Security 2003 (2) SA 34 (CC).
4 T Mokone 'Public works spends R200 to hire a glass – State being swindled out of billions' The Times 19 September 2013 at 1–2 (quotes Jeremey Cronin on
the subject of graft and corruption in both the public and private sectors).
5 See Auditor­General Report on a Performance Audit of Service Delivery at Police Stations and 10111 Call Centres at the South African Police Service 2007–
2008 (March 2009) 2, available at http://pmg.org.za/files/docs/09061010111_2.pdf (accessed on 28 May 2015); Public Protector Report Number 33 of 2010/2011
Against the Rules: Report on an Investigation into Complaints and Allegations of Maladministration, Improper and Unlawful Conduct by the Department of Public
Works and the South African Police Service Relating to the Leasing of Office Accommodation in Pretoria (2011), available at
http://www.pprotect.org/library/investigation_report/2011/Report%20no%2033%20of%202010–11.pdf (accessed on 28 May 2015); T Mokone 'More dodgy
tenders found: SIU tells Parliament that it uncovered serious irregularities in the building of 33 police stations which cost the country R330,000' The Sunday
Times (30 March 2011); P Craven 'COSATU welcomes SIU fight against corruption' available at http://www.cosatu.org.za/show.php?ID=4706 (accessed on 28
May 2015); E Ferreira 'SIU uncovers massive state corruption, says Hofmeyr' Mail & Guardian (31 March 2011) available at http://mg.co.za/article/2011–03–31­
siu­uncovers­massive­state­corruption­says­hofmeyr (accessed on 28 May 2015). See also S Woolman 'Security services' in Woolman & Bishop (n 3) chap 23B;
Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC).
6 M Krygier 'The quality of civility: Post­anti­communist thoughts on civil society and the rule of law' in A Sajó (ed) Out of and into Authoritarian Law (2002)
221. See also J Raz 'The rule of law and its virtue' in J Raz The Authority of Law (1979) 213; J Locke Second Treatise on Government: An Essay Concerning the
True Original Extent and End of Civil Government (1690) chap 6, s 57 ('[H]owever it may be mistaken, the end of law is not to abolish or restrain, but to
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preserve
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7 Surprises often function as veiled forms of aggression. See S Freud Jokes and Their Relation to the Unconscious (1905).
May 2015); E Ferreira 'SIU uncovers massive state corruption, says Hofmeyr' Mail & Guardian (31 March 2011) available at http://mg.co.za/article/2011–03–31­
siu­uncovers­massive­state­corruption­says­hofmeyr (accessed on 28 May 2015). See also S Woolman 'Security services' in Woolman & Bishop (n 3) chap 23B;
Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC).
6 M Krygier 'The quality of civility: Post­anti­communist thoughts on civil society and the rule of law' in A Sajó (ed) Out of and into Authoritarian Law (2002)
221. See also J Raz 'The rule of law and its virtue' in J Raz The Authority of Law (1979) 213; J Locke Second Treatise on Government: An Essay Concerning the
True Original Extent and End of Civil Government (1690) chap 6, s 57 ('[H]owever it may be mistaken, the end of law is not to abolish or restrain, but to
preserve and enlarge freedom.')
7 Surprises often function as veiled forms of aggression. See S Freud Jokes and Their Relation to the Unconscious (1905).
8 I am entirely indebted to Jeremy Cronin for his insights and for sharing them with me. His presentation at the Wits/SAIFAC Conference on Egalitarian
Liberalism (October 2013) shapes this section.
9 Cronin (n 8).
10 Cronin (n 8).
11 T Manuel Speech before Parliament (September 2013).
12 JD Gass et al 'Intimate partner violence, health behaviours and chronic physical illness among South African women' (2010) 100 South African Medical
Journal 582; ME Hoque & SB Kader 'Prevalence and experience of domestic violence among rural pregnant women in Kwazulu­Natal, South Africa' (2009) 24
South African Journal of Epidemiological Infection 34; S Mathews et al 'Every six hours a woman is killed by her intimate partner: A national study of female
homicide in South Africa' (2004) Medical Research Council Policy Brief No 5; KL Dunkle, RK Jewkes & HC Brown 'Prevalence and patterns of gender­based
violence and revictimization among women attending antenatal clinics in Soweto, South Africa' (2004) 160 American Journal of Epidemiology 230.
13 National Planning Commission National Development Plan: Executive Summary (2012) 11, 13 and 16 available at
http://www.gov.za/sites/www.gov.za/files/Executive Summary­NDP 2030 – Our future – make it work.pdf (accessed on 28 May 2015).
14 See F Fukuyama Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy (2014); H Kissinger World Order
(2014); S Issacharoff 'Constitutionalizing democracy in fractured societies' (2004) 82 Texas LR 1861. See, further, T Judt 'On intellectuals and democracy' (March
2012) The New York Review of Books 7 ('If you look at the history of nations that maximized the virtues that we associate with democracy, you notice that what
came first was constitutionality, the rule of law, and the separation of powers. Democracy almost always came last. If by democracy we mean the right of all
adults to take part in the choice of government that's going to rule over them, that came very late – in my lifetime in some countries that we now think of as
great democracies, like Switzerland, and certainly in my father's lifetime for other European countries like France. So we should not tell ourselves that
democracy is the starting point.')
15 See C Hubner Mendes Deliberative Democracy in New Constitutional Democracies (2013).
16 See S Woolman The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa's Basic Law (2013) 505–6 ('The path to
democracy is never straight. . . . [T]he kind of egalitarian pluralist democracy so often held out in South Africa as an oh­so­proximate ideal is quite often the
very last staging post, much as the final emotion to crawl meekly out of Pandora's box is hope.')
17 See S Woolman 'South Africa's aspirational Constitution, chastened: Constraints on change and the basic law as scaffolding' (2015) New York Law School LR
(forthcoming); S Woolman 'South Africa's aspirational Constitution, chastened: The basic law as scaffolding and problems of collective action' (2015) 31 SAJHR
(forthcoming).
18 See D Landau 'Abusive constitutionalism' (2013) 47 University of California, Davis LR 189; T Ginsburg & A Simpser (eds) Constitutions in Authoritarian
Regimes (2015); H Klug The Constitution of South Africa: A Contextual Analysis (2010); H Klug 'Finding the Constitutional Court's place in South Africa's
democracy: The interaction of principle' (2010) 3 Constitutional Court Review 1; S Choudhry ' "He had a mandate": The South African Constitutional Court and
the African National Congress in a dominant party democracy' (2009) 2 Constitutional Court Review 1; R Hirschl Towards Juristocracy: The Origins and
Consequences of the New Constitutionalism (2004). See also S Woolman 'My Tea Party, your mob, our social contract: Freedom of assembly and the
constitutional right to rebellion in Garvis v SATAWU (Minister For Safety & Security, Third Party) 2010 (6) SA 280 (WCC)' (2011) 27 SAJHR 346; S Woolman & J
Swanepoel 'Constitutional history' in Woolman & Bishop (n 3) (2008) chap 2.
19 See S Issacharoff 'Constitutional courts and democratic hedging' (2012) 99 Georgetown LJ 961; S Issacharoff 'The democratic risks to democratic
transitions' (2013) 5 Constitutional Court Review 1 at 2–3.
20 T Roux The Politics of Principle: The First South African Constitutional Court, 1995 to 2005 (2013) 392. See also T Roux 'Principle and pragmatism on the
Constitutional Court of South Africa' (2009) 7 International Journal of Constitutional Law 106.
21 T Roux 'The South African Constitutional Court's democratic rights jurisprudence: A response to Samuel Issacharoff' (2013) 5 Constitutional Court Review
20 at 46–7.
22 S Woolman 'Humility, Michelman's method and the Constitutional Court: Re­reading the First Certification Judgment and reaffirming a distinction between
law and politics' (2013) 24 Stellenbosch LR 284.
23 Krygier (n 6) 221 (emphasis added).
24 Krygier (n 6) 221 (emphasis added).
25 Krygier (n 6) 221.
26 See Woolman The Selfless Constitution (n 16); Woolman 'Humility' (n 22); Woolman 'South Africa's aspirational Constitution, chastened' (n 16); S Woolman
'Is xenophobia the right legal term of art? A Freudian and Kleinian response to Loren Landau on the violence in South African townships' (2011) 21(2)
Stellenbosch LR 285. What is missing from Tyler's procedural fairness account is a sense of the predicate conditions necessary for any viable legal regime
committed to the rule of law. A variety of predicate conditions may work to secure a sense of a working rule of law regime. However, part of what Krygier and I
claim is that a fecund rule of law regime does not sit at the apex of other relationships. It's not that 'a better civil society' or a 'better bureaucracy' generates a
greater degree of commitment to the rule of law. No. What Tyler misses, as we shall see, is that you do not get one without the other. Tyler's question has law
floating (somewhat blind) above other social phenomena. It ain't so. As I shall discuss later on, without thick social and ethical relations, and other functional
parts of the state in place, even a think embrace of the rule of law is hard to get off the ground.
27
See Jacobellis v Ohio 378 US 184 (1964) 197 (Stewart J famously wrote: 'I shall not today attempt further to define the kinds of material I understand to be
embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture
involved in this case is not that.')
28 M Klein 'Notes on some schizoid mechanisms' in J Mitchell (ed) The Selected Melanie Klein (1946) 175; M Klein 'Love, guilt and reparation' in M Klein Love,
Guilt and Reparation and Other Works, 1921–1946 (1976) 306; S Freud The Taboo of Virginity (1917); S Freud Group Psychology and the Analysis of Ego (1921);
S Freud Civilization and its Discontents (1929); M Ignatieff A Warrior's Honour: Ethnic Cleansing and the Modern Conscience (1997); Woolman 'Xenophobia' (n
26).
29 S Freud Two Principles of Mental Functioning (1911); S Freud Beyond the Pleasure Principle (1921).
30 I argue this point at length elsewhere. See Woolman (n 16) 147–86.
31 L Wittgenstein Philosophical Investigations GEM Amscombe ed (1953); Woolman (n 16) 33 and 116–17.
32 As I have argued at length elsewhere, we are simultaneously hard­wired to care for others in deontological, utilitarian, relational and even transcendental
modes of thought. Woolman (n 16) 140 and endnote 159. See also P Churchland Braintrust: What Neuroscience Has to Tell Us about Morality (2011) 75.
33 P d'Errico 'The law is terror put into words' in J Bonsignore et al (eds) Before The Law: An Introduction to the Legal Process (2006) 246 at 247.
34 P Kropotkin 'Law and authority' in Bonsignore et al (n 33) 158 at 159.
35 T Tyler Why People Obey the Law (1990) 485.
36 Tyler (n 35) 57.
37 Tyler (n 35) 56.
38 Tyler (n 35) 6 (emphasis added). Alternative definitions of procedural fairness, to which Tyler himself draws attention, also exist. Thibaut and Walker's
instrumental view of procedural fairness (as part of a control theory of law) turns on (a) the ability of individuals to influence decisions taken by law enforcement
officials and (b) the general positive outcomes of legal encounters. See J Thibaut & L Walker Procedural Justice: A Psychological Analysis (1975); J Thibaut & L
Walker 'A theory of procedure' (1978) 66 California LR 541. Tyler himself allows for some slippage between 'procedural fairness' as largely process driven and
thicker systems of distributive justice.
39 M Walzer 'On involuntary association' in A Gutmann (ed) Freedom of Association (1998) 64 at 67.
40 Walzer (n 39) 70.
41 Stop for a moment before you resist this account. To play the piano well requires years and years of practice in a fashion that is centuries old – and
mastery of this wonderful instrument is not something that the individual determines. You may play the piano well or poorly: you and everyone else can hear the
difference. Or take advanced mathematics – a practice several millennia old. Difference and creativity occur at the very margins of this form of life: to master
the rules in mathematics is to already be in agreement, to judge things in the same manner.
42 Walzer (n 39) 73.
43 Walzer (n 39) 73. See also M Oakeshott 'Political education' in M Oakeshott Rationalism in Politics and Other Essays (1962) 130 ('Our determination to
improve our conduct does not prevent us from recognizing that the greater part of what we have is not an incubus to be thrown off, but an inheritance to be
enjoyed. And a degree of shabbiness is joined with every real convenience.')
44 R Putnam Bowling Alone: The Collapse and Revival of American Community (2000) 19. Putnam does offer a better definition of social capital elsewhere –
one more congenial to the purposes of this article: 'Features of social life – networks, norms and trust – that enable participants to act more effectively together
to pursue shared objectives. . . . Social capital, in short, refers to social connections and the attendant norms and trust.' R Putnam 'Tuning in, tuning out: The
strange disappearance of social capital in America' (1995) 28 Political Science and Politics 1, 20. See also N Lin Social Capital: A Theory of Social Structure and
Action (2002) 24–5 ('[S]ocial capital may be defined operationally as the resources embedded in social networks accessed and used by actors for actions. Thus,
the concept has two important components: (1) it represents resources embedded in social relations rather than individuals, and (2) access and use of such
resources reside with actors. The first characterization, socially embedded resources, allows a parallel analysis between social capital and other forms of capital.
. . . The second component of social capital . . . must reflect that [the] ego is cognitively aware of the presence of such resources in her or his relations and
networks and makes a choice in invoking the particular resources.') See also D Naravan 'Bonds and bridges: Social capital and poverty' Poverty Group, World
Bank (July 1999) ('Increasing evidence shows that social cohesion is critical for societies to prosper and for development to be sustainable. Social capital is not
just the sums of the institutions that underpin a society – it is the glue that holds them together.')
45 A Baier 'Trust and antitrust' in A Baier Moral Prejudices: Essays on Ethics (1995) 95.
46 R Putnam Bowling Alone: The Collapse and Revival of American Community (2000) 22–3. As De Tocqueville was first to note, medium to large scale
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that there is a direct correlation between (a) the availability (or the unavailability) of social capital, (b) the presence (or absence) of bonding networks and
. . . The second component of social capital . . . must reflect that [the] ego is cognitively aware of the presence of such resources in her or his relations and
networks and makes a choice in invoking the particular resources.') See also D Naravan 'Bonds and bridges: Social capital and poverty' Poverty Group, World
Bank (July 1999) ('Increasing evidence shows that social cohesion is critical for societies to prosper and for development to be sustainable. Social capital is not
just the sums of the institutions that underpin a society – it is the glue that holds them together.')
45 A Baier 'Trust and antitrust' in A Baier Moral Prejudices: Essays on Ethics (1995) 95.
46 R Putnam Bowling Alone: The Collapse and Revival of American Community (2000) 22–3. As De Tocqueville was first to note, medium to large scale
democracies only flourish in an environment with a rich associational life. A de Toqueville Democracy in America (1835). Social theorists have come to recognise
that there is a direct correlation between (a) the availability (or the unavailability) of social capital, (b) the presence (or absence) of bonding networks and
bridging networks and (c) the virility (or the sterility) of political life. This syllogism is not the product of armchair philosophers. As David Halpern and colleagues
have demonstrated, Nordic countries – such as Sweden, Norway and Denmark – often possess social capital or mutual trust ratios of over 65 per cent. See D
Halpern Social Capital (2005). That means, in short, that two­thirds of the citizens of these countries tend to 'trust' – and thus be able to work effectively with –
fellow citizens. Even the US, the land of the free, autonomous (allegedly fragmented and isolated) individual, boasts social capital or mutual trust ratios of over
50 per cent. South Africa posts a dismal 15 per cent. Brazil – with an equally long history of social strife – is one of the few democracies to advertise a lower
mark: 2 per cent. The other danger to social capital in any open society is capture. Concerns about what I call 'capture' lie, like 'constitutive attachments', at the
very heart of associational life. Indeed, concerns about capture are, essentially, a function of – one might even say a necessary and logical consequence of – the
very structure of associational life. In short, 'capture' refers to and justifies the ability of associations to control their association through selective membership
policies, the manner in which they order their internal affairs and the discharge of members or users. So long as the association, and its members, as currently
constituted possesses a figurative and/or real sense of ownership, so long as there is real social capital at stake, a court (and the state) must cede to most
associations a significant level of control over entrance, voice and exit. For more on this discussion of capture, see S Woolman 'On the fragility of associational
life: A constitutive liberal's response to Patrick Lenta' (2009) 25 SAJHR 280; S Woolman & D Zeffertt 'Judging Jews: Court interrogation of rule­making and
decision­taking by Jewish ecclesiastical bodies' (2012) 28 SAJHR 196; S Woolman 'Seek justice elsewhere: An egalitarian pluralist response to David Bilchitz on
the distinction between differentiation and domination' (2012) 28 SAJHR 273.
47 D Halpern Social Capital (2005) 20.
48 S Woolman 'Security services' in Woolman & Bishop (n 3) (May 2011) chap 23B.
49 J Jackson et al 'Why do people comply with the law? Legitimacy and the influence of legal institutions' (2012) 52 British Journal of Criminology 1051.
50 See DJ Smith 'New challenges to police legitimacy' in A Henry & DJ Smith (eds) Transformations of Policing (2007) 273 (on the usefulness of the myth of a
unity of values and purpose, as well as what occurs when some sectors of society begin to question the extent to which they belong).
51 M Levi, A Sacks & T Tyler 'Conceptualizing legitimacy, measuring legitimating beliefs' (2009) 53 American Behavioral Scientist 354, 370 (emphasis added).
52 Levi, Sacks & Tyler (n 51) 570 (emphasis added).
53 S Woolman 'Freedom of association' in Woolman & Bishop (n 3) (2008) chap 44; B Rothstein Social Traps and the Problem of Trust (2005).
54 A Biel et al Cooperation in Modern Society: Promoting the Welfare of Communities, States and Organizations (2013).
55 J Sunshine & T Tyler 'Moral solidarity, identification with the community, and the importance of procedural justice: The police as prototypical representatives
of a group's moral values' (2003) 66 Social Psychology Quarterly 153.
56
V Barolsky Zamdela Informal Settlement Focus Group (2013) (transcript on file with author). See also V Barolsky 'Glenister at the coalface: Are the police
part of an effective independent security service?' (2013) 5 Constitutional Court Review 377.
57
V Barolsky Focus Group on the Police, Alexandra Township (2013) (transcript on file with author). See also V Barolsky 'Citizenship participation within public
institutions: A community's police' (Human Sciences Research Council, October 2013).
58 B Bradford et al 'What price fairness when security is at stake? Police legitimacy in South Africa' (2013) Regulation & Governance 1 at 16.
59 J Steinberg 'Establishing police authority and civilian compliance in post­apartheid Johannesburg: An argument from Egon Bittner' (2011) 22 Policing and
Society 481.
60 Bradford et al (n 58) 17.
61 Bradford et al (n 58) 17.
62 Subsequent to the time of writing, the Khayelitsha Commission released its report. Khayelitsha Commission Towards a Safer Khayelitsha: The Report of the
Commission of Inquiry into Allegations of Police Inefficiency and a Breakdown in Relations Between SAPS and the Community of Khayelitsha (2014). The
Commission drew on a number of articles and submissions that largely tracked Tyler's theories regarding the relationship between procedural fairness,
obedience to the law and the rule of law. See, eg, J Steinberg Submission to the Khayelitsha Commission of Enquiry (May 2014); G Newham Submission to the
Commission of Inquiry into Allegations of Police Inefficiency in Khayelitsha and a Breakdown in Relations between the Community and the Police (May 2014); A
McLean Submission to the Khayelitsha Commission of Inquiry (May 2014); A Faull Performance Measurement in Police Agencies: A Report Written for the
Khayelitsha Commission of Enquiry (May 2014) (all reports available at http://www.khayelitshacommission.org.za/2013–11–10–19–36–33/2014–03–05–07–56–
34/witnesses­appearing­in­phase­two.html (accessed on 28 May 2015)). My quarrel with the Commission's analysis and conclusions occur at the very margins of
the report. But they are not marginal for the purposes of this article. The Commission correctly endorses the 'daffodil principle' that underpinned a former SAPS
members' approach to his station's everyday engagement with the public. Towards a Safer Khayelitsha (n 62) 441. The former officer notes that just as a field of
daffodils, for all its beauty, only comes into being through the patient planting of one daffodil at a time, so too do good relationships between the police and the
community come into fruition one interaction at a time. However, the Khayelitsha Commission draws an incomplete – and therefore only partially correct –
conclusion from this flowery analogy: 'The "daffodil principle" reminds us that each interaction between a SAPS member and a civilian has the capacity to foster
or undermine the relations between SAPS and the community. Each interaction communicates to the civilian how SAPS values him or her – as a person worthy of
equal respect, or not.' Ibid. What's missing? The manner in which the police themselves are treated by the public. Respect, dignity, loyalty and trust are all two­
way streets. At the outset of this article, I described three instances in which the police officers that I engaged treated me cordially and respectfully while
enforcing the law. But as important as their treatment may have been for me, I would contend that my cordial and respectful acknowledgement of their station,
their authority and, above all, their humanity elicited a positive response from the officers that had a knock­on effect in subsequent interactions with other
members of the community. These relationships blossom only when police officers themselves are treated as 'persons worthy of equal respect'. Another troubling
feature of the Commission's account of the 'daffodil principle' is its top down approach. As I have maintained from the outset, that's not how rule of law cultures
and vibrant civil societies develop. Citizens must learn to stop at red robots and pay TV licences. These two relatively simple tasks are part of a life­long process
of the internalisation of acceptable norms. Citizens need to 'own' their responsibility for discharging their legal obligations for more than instrumental reasons of
coordination. The internalisation of norms means that citizens understand that they have responsibilities toward one another that they themselves must
discharge. When individuals decline to treat one another in terms of civility, dignity and mutual security, no amount of daffodil policing can prevent a spiral
downwards into chaos. The Commission is at least partially alive to the horizontal dimensions of the rule of law when it emphasises the centrality of trust – an
interpersonal feature of relationships – and not just institutional legitimacy. It concludes: '[T]he manner in which policing is performed is at least as important as
the successful achievement of crime prevention targets in building relationships of trust between a community and a policing agency. The research suggests that
not only does treating members of a community fairly and with respect foster a good relationship between police and a community, as one would expect, but it
also fosters respect for the rule of law itself.' Towards a Safer Khayelitsha (n 62) 441 citing, in part, J Sunshine & T Tyler 'The role of procedural justice and
legitimacy in shaping public support for policing' (2003) 37 Law and Society Review 513. However, while trust – a non­neutral lynchpin of both a rule of law
culture and a cohesive civil society – appears in the Commission's analysis, it remains cabined (and thus limited) by Tyler's emphasis on procedural justice.
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