In a Time of Trouble

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.

`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