In a Time of Trouble: Law and Liberty in South Africa's State of Emergency

Can the law really protect human rights when they are most under siege? During much of South Africa's state of emergency, the country's highest court grimly rejected efforts to use the law to restrain emergency power. The tide of those decisions has now turned. As this important book shows, these changing judicial trends reveal both the weakness and strength of the law. Although no guarantee of liberty, law and legal traditions can help to slow the march of oppression.

Table of Contents:
Part 1 South Africa internal security law - constitutional framework and statutory designs: Parliamentary supremacy and the constricted field of judicial review of legislation; South African internal security statutes. Part 2 Hurley's case and the doctrinal bases for human rights jurisprudence in South Africa: Hurley and the character of legislative intention in South Africa; the interpretation of intention. Part 3 The Rabie Court and the Judicial Protection of the State of Emergency: the Rabie era; the rights denied. Part 4 The Rabie Court's protection of human rights: the rights not lost; the rights protected; the demands of the emegency against the claims of human rights. Part 5 The Corbett Court and the emergency: the change in the Court's decisions; the common doctrinal ground of the Rabie and Corbett Courts; the immediate causes of the change in the Court's approach. Part 6 Explaining the Court's performance - visions of law in South Africa: the Rabie Court - adherence to law in South African culture; the Corbett Court - the Bar and the Judiciary as carriers of a human rights tradition. Part 7 Lawyers against the emergency: lawyers' moral responsibility for their work; the value of emergency law work.

Review :
`intelligent study.' Robert Fine, Times Higher Education Supplement `This is a book which will be cited for a long time to come ... It is a very important study of the decisions taken by South Africa's Appellate Division during the country's state of emergency during 1985-90, and any future analysis of this period will be found wanting without reference to Stephen Ellmann's meticulous book.' Political Studies `This book is a model of meticulous and thoughtful scholarship. In a very well researched area it offers a number of original insights. It illuminates what no other piece of research has done - what the South African courts retained from a fine legal tradition even while they were denying remedies to the victims of emergency law. The book makes us understand the past so as to better prepare for the future. The book is indispensable for those charged with the daunting task of devising a security system for the emerging new order in South Africa.' A.S. Mathews, James Scott Wylie Professor of Law, University of Natal, South Africa `A landmark study of the role played by legal tradition and practice in an oppresive society.' Gail Gerhart, African Book Editor, Foreign Affairs Magazine `Professor Ellmann's book is a significant contribution to the literature and will be read with interest by those concerned with human rights generally, with emergency laws and practices, with residuary rights theories and with South Africa. Many readers will be surprised to discover that at least the form of independent judicial supervision of emergency powers persisted in South Africa during the 1980s and that limited vindication of rights was possible. Professor Ellmann's understanding of the South African legal system is thorough and deep. The most fascinating part of the book is his discussion of how the English and Roman-Dutch legal traditions have reached an uneasy compromise in South African legal consciousness and what significance this dual heritage has for legitimation of power through the rule of law.' Joan Fitzpatrick, Professor of Law, University of Washington `In A Time of Trouble is a thoughtful, painstaking, yet readable examination of the role of judges and the relevance of the Rule of Law in a legal system aimed at the oppression of human rights and aspirations. Steve Ellmann has produced a most scholarly and thorough study of South Africa's highest court during the recent states of emergency in that country; he has also presented a work that has universal significance for all who are concerned with the ideals of liberty and government under law.' Lawrence G. Baxter, Professor of Law, Duke University `A brilliant book written with elegance and subtlety. Political scientists and their students will be challenged and, I think, persuaded by Ellmann's judicious argument that lawyers and judges have contributed to South Africa's liberation struggle and created precedents for the protection of human rights in the future South Africa.' Thomas Karis, Professor Emeritus of Political Science, City University of New York `In A Time of Trouble is the first book to explore the relation between law and politics during the 1985-90 Emergency in South Africa. It addresses the vital question of the `relative autonomy' of law under the most inhospitable conditions imaginable. Ellmann's thorough, nuanced evaluation of Appellate Division decisions demonstrates that judges enjoy significant room for manoeuvre even where Parliament is supreme and the executive unfettered by a bill of rights. His critique of the judiciary's failures and his praise for its courage should help to guide a post-apartheid South Africa in re-establishing the rule of law.' Richard Abel, Professor of Law, University of California, Los Angeles 'this must be one of the most valuable and important studies of the South African legal system ever made ... calm, deeply researched, and deeply thoughtful yet passionate examination ... Professor Ellman's reasoning is utterly persuasive ... I think that no reading-list on human rights and on the duties of lawyers - whether at a time of trouble or not - can be complete without it.' M.E. Bennun, University of Exeter, Bracton Law Journal `fine and sensitive treatment' Canadian Journal of Law and Society `Ellmann succeeds wonderfully ... He writes authoritatively and clearly - the book is a pleasure to read ... Ellmann's view from afar (New York), coupled with his intimate knowledge of the workings and many of the current `personalities' of the South African legal system and his deep concern for justice through law, make this book an especially valuable contribution to our legal literature and our understanding of ourselves as lawyers and human beings ... this book represents an outstanding achievement.' Hugh Corder, South African Journal of Human Rights `absorbing and provocative analysis of emergency law and human rights in South Africa during the 1980s ... This is a wide-ranging and provocative piece of legal scholarship which draws on a broad range of comparative legal history and is rich in speculations about the relationship between law and state ... Ellmann presents a sweeping and provocative discussion of the importance of law in South African culture ... this engaging book also offers broader insights on the politics of doctrinal innovation, state legitimation, and the institutional power of judiciaries in authoritarian regimes. Thus it should also stir spirited argument within a wider audience of comparative legal scholars.' Law and Politics Book Review `Ellmann's In a Time of Trouble examines the behaviour of the South African Appeal Court Judges in the last years of apartheid. It shows how some judges interpreted the law during a national state of emergency to protect the apartheid state. It is an excellent study of the judicial process and enhances one's understanding of the role played by the South African judiciary in upholding the legal order of apartheid. Its comparative perspective and intelligent insights make it an important addition to the literature on the judicial process.' John Dugard, Professor of Law, University of Witwatersrand , Johannesburg `a fine work ... How fortunate we are that a scholar as talented as Professor Ellmann has devoted so much time and energy to a dispassionate analysis of the near part from which such valuable lessons can be learned for a very different future' South African Law Journal `thoughtful analysis of the record of the Appellate Division ... Contributions such as Ellmann's In a Time of Trouble, because of their penetrating analysis and perceptive insight, are of invaluable assistance to South Africans who are trying to cultivate a vigorous ethic of justification' Michigan Law Review