"The government should be in the dock, not me," said Nelson Mandela. In State vs Mandela in 1962 he objected to being tried by a white supremacist court and called on the magistrate to recuse himself. The magistrate declined: "There is only one court today and that is the White Man's Court."

In asserting that the apartheid state could not dispense justice in any legitimate sense, Mandela is supported by international law: apartheid, a crime against humanity, violated the settled core of international principles which no state may violate. Judges who upheld apartheid joined in criminal governance.

Yet some dismiss Mandela's lawyerly arguments and international law alike as mere rhetoric which the Truth and Reconciliation Commission should ignore as it investigates, and reports on, the legal profession.

The Democratic Party says the commission is heading for a quagmire of contradictions in judging the legal profession: apartheid judges could not act in conflict with the laws made by Parliament since there was no supreme law, such as the present Constitution, against which to test Parliament's handiwork.

But under the old constitution, judges could and did act against the apartheid parliament, particularly in the 1950s. The fact that the judges in the 1950s did not do more, that the Nat-packed bench refused to invent constitutional and other challenges, that judges refused to invent activist challenges based on international law - these were moral and professional failings.

Unquestioning deference to the doctrine of parliamentary sovereignty in the absence of that doctrine's vital ingredient - universal franchise - was a moral and political choice requiring moral and political justifications.

Later, Mandela and his Rivonia co- trialists, in refusing to plead guilty explicitly refused to acknowledge moral guilt. "All right, let us forget about moral guilt," responded pro-apartheid prosecutor Percy Yutar.

The commission must choose between these creeds. Yutar's creed sees the doctrine of parliamentary sovereignty as the end of debate on judicial morals, not the beginning. Mandela's creed realises that, particularly in a repressive system, legal philosophy is a branch of ethics.
As United States legal realist Felix Cohen wrote in The Ethical Basis of Legal Criticism in 1931: "The problem which the judge faces is, in the strictest sense, a moral problem."

Apartheid judges cannot escape moral
responsibility by claiming to have been "bound" by law, particularly when they deliberately dismissed the innovative arguments of activist-lawyers and embraced the reasoning of the apartheid bosses who appointed them.

As Richard Abel's Politics By Other Means demonstrates, many lawyer-activists challenged apartheid. Some succeeded, but more were defeated by judicial criminals. Other lawyers - Yutar is only the most obvious - vigorously advocated criminal governance for professional and personal gain.

Similarly, among the judiciary, one cannot always lump innovators like John Didcott with compliant pro-apartheid blackletter judges. Some suggest that the only moral choice was whether to stay on the bench or not - a subject hotly debated in South African law journals of the 1980s.

Yet whatever position one takes on whether it was morally defensible to remain on the apartheid bench, questions persist about the differing moral conduct of those judges who stayed. Even if one thinks it was by definition atrocious to stay, there remained degrees of atrocity.

Participation in the apartheid judiciary was a personal, moral and political choice and can be judged as such. Such joiners cannot, as judges often do elsewhere, justify their individual actions by reference to the overall legitimacy and morality of the system.

Apartheid judges who claim to have subordinated their individual moral opinions to a legislature that was busy with its crimes against humanity, merely increase their difficulties.

Judges owe the commission more than broad- brush theoretical explanations, irrelevantly imported from legitimate political systems. They owe the country a moral and political evaluation of their willing participation in an illegitimate system.

Certain judges, or categories of judges, will have more defensible stories to tell than others. Such differentiation, in the commission's final report, could not be called a witch-hunt, since there is no question of persecution, of removal from the bench.

At the Rivonia Trial, Mandela doubted that there could be a normal judiciary in an abnormal society. He doubted that the classic judicial role - obeisance to the law as laid down by Parliament - could apply in apartheid conditions.

This argument cannot be met, in circular fashion, by repeating the traditional story about judges in ordinary systems, by ignoring the extraordinary nature of apartheid.

In the most routine legal acts, even in legitimate legal systems, "judges deal pain and death", says legal historian Robert Cover. Even in legitimate systems, debates rage about when, if ever, judges really lack moral choice in deciding cases.

A judge who says "I can't have decided otherwise" is never quite in the position of one who says: "I can't walk: my legs are broken." Alleged judicial incapacity is never quite the same as brute physical inability, particularly in appellate courts.

Apartheid judges could have listened to activist lawyers. Some did. The others should not be allowed to pretend otherwise.

Ronald Suresh Roberts is co-author of Reconciliation Through Truth:A Reckoning of Apartheid's Criminal Governance and author of Clarence Thomas and the Tough Love Crowd:Counterfeit Heroes and Unhappy Truths.