ɳ°ÍÌåÓý¹ÙÍø_2024Å·ÖÞ±­²©²Êapp@ Stu Woolman, Scholar at the Wits Law School

By Jonathan Klaaren 11 September 2024

This blog reflects on Stu Woolman’s scholarship on the occasion of his death the month before last. Stu was a longtime member of the School of Law at the University of the Witwatersrand. It depends how one counts but, at least as of today’s date, Stu was arguably there longer than me. “First!”, as he might have said to me in our nearly-entirely friendly competition and collaboration over the thirty-odd years since we both arrived at Wits in 1993. That was a significant year for South Africa and for two Americans arriving there to begin what neither of them could imagine as three-decades’ long careers in South African academia after USA based law school (Columbia) and undergraduate degrees (Stu at Wesleyan).

That’s enough about me and Stu but not enough about Stu. There are a number of events already held and in the planning – and both virtual and in person – to begin to acknowledge and engage with the complex and brilliant scholar and colleague that Stu was. A number of his friends, family, and colleagues came through to the School after attending his funeral on Thursday 11 July 2024, for refreshments and conversations (I was overseas and unfortunately unable to attend). At least one blog has already been penned and posted. At least two scholarly events organized under the auspices of the Constitutional Court Review (in which the School and its staff will be participating) will be held in the remainder of this year and next. As the WLS knows, it is particularly hard for an academic institution to lose one of its own while they are still active members of staff – Stu was only 60 and was actively teaching and researching within the School. As these first two paragraphs show, it is nearly impossible to write about Stu without entering into the registers of emotion and complexity. That said, this blog is about Stu the scholar – other pieces, places and events will deal with other angles.

Trying to trace and track someone’s scholarship is never a simple thing. While he did set up a couple of websites for his work, including this one, Stu never set up a Google Scholar account. While Stu will now never have such a profile, using that imperfect platform does provide one small window onto his generative scholarship. Running a search with a couple of different versions of his name yields a list of the top ten most-cited Stu journal articles (books and edited collections are discussed below). In order, these are currently:

Woolman, Stu. “The Amazing, Vanishing Bill of Rights.” South African Law Journal 124, no. 4 (January 2007): 762–94. 66 GS citations.

Woolman, Stuart, and Brahm Fleisch. “South Africa’s Unintended Experiment in School Choice: How the National Education Policy Act, the South Africa Schools Act and the Employment of Educators Act Create the Enabling Conditions for Quasi-Markets in Schools.” Education and the Law 18, no. 1 (March 1, 2006): 31–75. 65 GS citations.

Fleisch, Brahm, and Stuart Woolman. “On the Constitutionality of School Fees : A Reply to Roithmayr : Research Article.” Perspectives in Education 22, no. 1 (December 2004): 111–23. 40 GS citations.

Woolman, Stuart, and Dennis Davis. “The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitutions.” South African Journal on Human Rights 12, no. 3 (January 1996): 361–404.25 GS citations.

Woolman, Stuart, Pam Watson, and Nicholas Smith. “Toto, I’ve a Feeling We’re Not in Kansas Any More: A Reply to Professor Motala and Others on the Transformation of Legal Education in South Africa.” South African Law Journal 114, no. 1 (1997): 30–64. 24 GS citations.

Woolman, Stuart. “Out of Order? Out of Balance? The Limitation Clause of the Final Constitution.” South African Journal on Human Rights 13, no. 1 (January 1997): 102–34. 24 GS citations.

Woolman, Stu, Elliot Fishman, and Michael Fisher. “Evidence of Patent Thickets in Complex Biopharmaceutical Technologies.” IDEA: The Intellectual Property Law Review 53, no. 1 (2013): 1–38. 23 GS citations.

Woolman, Stu, Courtenay Sprague, and Vivian Black. “ Why State Policies That Undermine HIV Lay Counsellors Constitute Retrogressive Measures That Violate the Right of Access to Health Care for Pregnant Women and Infants.” South African Journal on Human Rights 25, no. 1 (January 2009): 102–25. 20 GS citations.

Woolman, Stu, and Michael Bishop. “Down on the Farm and Barefoot in the Kitchen: Farm Labour and Domestic Labour as Forms of Servitude.” Development Southern Africa 24, no. 4 (October 1, 2007): 595–606. 19 GS citations.

Woolman, Stu. “A Politics of Accountability : How South Africa’s Judicial Recognition of the Binding Legal Effect of the Public Protector’s Recommendations Had a Catalysing Effect That Brought down a President.” Constitutional Court Review 8, no. 1 (August 2016): 155–92. 17 GS citations.

A couple of points may be in order regarding these articles. It’s remarkable first of all that seven of these top ten articles are collaborations with other colleagues. And perhaps even more remarkable that, other than his long-time collaborator Brahm Fleisch, none of the co-authors appear more than once. Going further down the citation list one would quickly discover a frequency of publications with other long-time collaborators including David Bilchitz, Michael Bishop, Theunis Roux, and Courtenay Sprague to surface just a few names. The frequency of collaboration with top-tier academics indicates both Stu’s ability to work across individual scholarly boundaries and his knack for identifying and articulating a key idea (not only putting it into a memorable title). Second, it’s also worth noting that a scholar certainly best known for the sub-field of constitutional law has a presence in fields such as education and health, testifying to Stu’s healthy disrespect for established scholarly jurisdictions.

ɳ°ÍÌåÓý¹ÙÍø_2024Å·ÖÞ±­²©²Êapp@ citation counts in the constitutional field broadly understood: the Google Scholar citation numbers above indicate the times Stu’s academic works were cited in other academic work. But Stu’s scholarship without a doubt punched even above that weight in a realm he cared about deeply (and cared about so deeply that he was willing to offer fearless critique of): the courts of South Africa, and especially the Constitutional Court. A current quick count of citations to Stu by the judges of the Constitutional Court alone, done for this blog, is a league-leading fifty-eight (58). And the impact of his writings spread throughout the South African judiciary.

Needless to say, the value of scholarship cannot be captured in a simple citation count. In one non-citation register of value, Stu was nearly boundless in his ability to continue and sustain a dialogue over positions and perspectives. And these conversations and exchanges were tremendously productive. For example, Stu had an ongoing direct and personal scholarly conversation with one of the most respected global legal scholars, the Harvard Law professor Frank Michelman, one that spilled over into peer-reviewed print. Likewise, in a second non- citation register of value, I have always cherished the little-cited but, we liked to think, impactful open memorandum regarding an early open question (sorry but Stu would have liked that) of Judicial Service Commission institutional design and transparency.

There are at least two further genres (and perhaps one semi-genre, editing) beyond journal articles that must be surveyed in order to understand Stu’s scholarship: monographs and edited volumes. In the category of monographs, Stu published two sole-authored books, both in (what turned out to be) the latter phase of his career and within a decade of each other. The first was The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law and the second in 2021 was Wrecking Ball: Why Permanent Technological Unemployment, a Predictable Pandemic and Other Wicked Problems Will End South Africa’s Experiment in Inclusive Democracy.

The arc from the one to the other of these two monographs is clear even through the titles. The hopeful tone of the first carries through to the later journal cited above, ‘Politics of Accountability’, where Stu argued in favour of the binding effect of decisions of the Public Protector, a body of Chapter 9 of the Constitution. In the second, while the tone is not dark, Stu puts the threats rather than the promise of constitutional democracy, reflecting on both the COVID-19 pandemic and South Africa’s handling of it as well as the by-then apparent precarious position of South Africa’s less well-off populations in the global economy. We will never hear from Stu in writing about the Government of National Unity (GNU) but one can be sure that the title of whatever writing he did would have had punch and quite likely a pun as well.

Beyond his two sole-authored books, Stu also wrote and published a jointly authored monograph with Brahm Fleisch in 2009, The Constitution in the Classroom: Law and Education in South Africa, 1994-2008. This book is an interdisciplinary effort of friends working in different spheres and collaborating in order to overlap the best of constitutional law with that of empirical evidence in a field crucial to the success of democracy, primary and secondary education. Taking the opportunity to enrich the public debate through scholarship, Stu and Brahm wrote their book on the basis of their prior research and in order to invigorate the rather “desiccated debates taking place in both the education policy community and the legal academy.”

Stu edited a lot. Of editing there is no end. The product of that process includes a variety of works and forms. One form was a foray into editing an American-style casebook, The Dignity Jurisprudence of the Constitutional Court of South Africa, a work that brought together the first sixteen years of constitutional jurisprudence addressing the meaning, role, and reach of dignity in the law of South Africa as a multiracial democracy. Indeed, Stu began his legal editing career at the Columbia Human Rights Law Review during his JD as a Research & Writing Editor.

Three of Stu’s editing works were stand-alone edited collections, two published through PULP at University of Pretoria where Stu taught for a while. The first was with Michael Bishop in 2008: Constitutional Conversations. The second, The Business of Sustainable Development in Africa: Human Rights, Partnerships, Alternative Business Models, was also published in 2008 and was edited with two colleagues from Stu’s time teaching at the Wits Business School: Ralph Hamann and Courtenay Sprague. The third was with David Bilchitz in 2012: Is This Seat Taken?: Conversations at the Bar, the Bench and the Academy about the South African Constitution.

The two collections squarely in the legal field are exemplars of the dialogical model of presentation employed at the South African Institute for Advanced Constitutional, Public, Human Rights & International Law. The first flows from and works with chapters from Stu Woolman, Theunis Roux & Michael Bishop (eds) Constitutional Law of South Africa, 2nd Edition (2008) (on which more below) putting those materials into conversation with leading legal voices. The other (with David Bilchitz) is even more wide-ranging, drawing its core subject matter from a range of law journals and books as well as purpose-written pieces. The editing work to pull all of these voices together into something coherent required innumerable late nights and even more emails.

Without doubt the greatest part of Stu’s editing was his work on The Constitutional Law of South Africa and later on the Constitutional Court Review. In Stu’s words, he was “the creator, primary author and editor-in-chief of the seminal … treatise, Constitutional Law of South Africa and creator and editor-in-chief of the Constitutional Court Review.” Beginning to publish work from 1996, the Constitutional Law of South Africa came in a first and a second edition. Stu co-edited this leading commentary first with Matthew Chaskalson, Janet Kentridge, me, Gilbert Marcus, Derek Spitz and then the second edition with Michael Bishop and, in its early stages, Theunis Roux.

The Constitutional Law of South Africa was a distinctive and constituent part of what one might term the first generation of South African constitutional scholarship, writing on the Constitution in the immediate aftermath of its adoption. This was a generation simultaneously creating and pushing the boundaries and the traditions of their body of knowledge. Stu was at its heart.

Amazingly Stu continued beyond that first generation to play another if different leading role in the second generation of constitutional scholarship. As already noted, he continued to co-edit The Constitutional Law of South Africa treatise in its second edition. Then, in 2008, he founded the Constitutional Court Review, an international journal of record that tracks the work of the Constitutional Court of South Africa. Stu worked with his long-time collaborators as well younger colleagues including Jason Brickhill and Raisa Cachalia to run the CCR and to organize annual authors’ conferences. These events embracing the dialogical model have served to generate and disseminate some of the best – the most insightful and critical articles – in South African constitutional law scholarship over the past 15 years.

Stu was generous with his scholarship, he was generative in terms of the impact of that body of work, and he played a significant and leading role in at least two separate and identifiable generations of South African legal scholarship. Stu has gifted the legal academic community, not only his wisdom and insights, but also his mode of doing legal scholarship. That legacy is set to endure in the Constitutional Court Review and in the generation of younger scholars Stu nurtured and encouraged. In the memories of his older colleagues, it will be his indomitable spirit that survives - his sometimes annoying, always challenging, commitment to observing the highest standards of our profession.