Judge Louis Harms said many things in his judgment on the Zuma appeal matter, but the thrust of it was that political opinion has no place in the work of judges. Judges should limit themselves to the matters of law.

He did not say there was no political conspiracy involving Thabo Mbeki, but only that the matter was irrelevant and Judge Chris Nicholson had no business bringing it into the case, and to do so without affording Mbeki the opportunity to defend himself.

It’s hard to quibble with that. But it is the idea that political opinion has no place in law that I would like to problematise (damn, I hate that word). What Harms did was to elevate to universal principle a particular approach to jurisprudence.

What is even more astonishing is that Harms’s legal positivism ­ the idea that opinion and values have no place in law ­ has gone without any commentary. The truth is that not everyone adopts that approach. The US , generally regarded as the standard bearer of democracy and the rule of law, has a decidedly political approach to law. The appointment of judges, especially judges to the Supreme Court, is an explicitly political affair.

Thus a judge’s opinion on Roe v Wade (which ensured the right of a woman to an abortion) has become the litmus test for Supreme Court appointments. And this does not seem to have done anything to undermine the rule of law in America.

I can hear you say “ this is not America”, or “America is an exception”. I accept these protestations, but neither belies the point that legal positivism is not a universal standard.

Why should this matter? One of the naive assumptions of the positivist approach is that the relationship between the justice minister and the prosecutor is a professional one ­ without the wink-winks and nudge-nudges of everyday politics.

To his credit, Nicholson pointed us to the dangers of what happens when you do not pay enough attention to the role of politics in law. He may have done it clumsily, but methinks he still stands to be vindicated when the truth finally outs *1.

P.S: Before they launch their manifesto, I would recommend Congress of the People leader Mosiuoa Lekota read a book I edited with Gill Marcus, Khehla Shubane and Adrian Hadland, titled Visions of Black Economic Empowerment. In there is probably the best essay on the constitutional foundations of affirmative action. Albie Sachs located affirmative action in section 9 (2), which emphasises its remedial aspects and 9 (3), which prohibits unfair discrimination. It’s easy to see why many blacks would emphasise 9 (2) and many whites 9 (3). But constitutionally speaking, 9 (2) is policed by the prescriptions of 9 (3). I can see Lekota’s conundrum: how do you pack all of that nuance into a manifesto?

With acknowledgements to Xolela Mangcu and Business Day.