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Race, Law and the ‘Incomplete’ Transition
Just because everything is different doesn’t mean anything has changed.1
The emancipation did not take place. Legal emancipation is not emancipation. Legal emancipation is only the perfection of slavery. Legal emancipation is the repetition and intensification of the original appropriation that created the masters and the slaves, the haves and the have nots, the propertied and the helpless. Slaves, being legal property, know that emancipation requires emancipation from property and from legality. Emancipation is a red and black tomorrow.2
Introduction
This chapter offers an account of the afterlife of colonialism and apartheid. It is a survey of the current social, political and legal landscape of post-1994 South Africa, and specifically of the extent to which race, racial politics and racism are still definitive of that landscape. The central aim here is to set up the context in which Biko’s thought will be employed to intervene in the discourse on race in South Africa. I contend that Biko’s thought finds application in the present South Africa in large part because the society he wrote of and spoke against is continuous with the one we live in today. The official institutional shift from colonial-apartheid to the “new South Africa” has not been conterminous with the economic, political and social situation of the majority of South Africans.3
Part of the blindspot in South African race discourses (which in turn undergird human rights law and equality jurisprudence) is an insistence on the belief that since the de jure end of apartheid in 1994, whites and Blacks now equally enjoy formal legal rights and that, therefore, the law is no longer instrumental in the marginalisation and exclusion of Blacks and in perpetuating deep racial inequalities. This is evidenced by the popular use of the phrase “previously disadvantaged group” to refer, among others, to Blacks. The erasure implied in describing historical racial disadvantage in such terms as “previous” (as if it is something of the past) stems from a failure to see that racism is so deeply embedded in society that racist practices engendered by law and legal institutions can exist long after the abolishment of the laws or the replacement of the government that enacted those laws.4 For the purposes of this chapter, I suggest that a post-1994 critical race theory grounded in the philosophy of Black Consciousness should problematise these discourses, which are heavily informed by legal liberalism and also by a reluctance to fully account for the racist brutality and structural violence of colonial-apartheid.
This chapter is structured as follows: I shall first sketch out in broad terms two dominant approaches to race and law in contemporary “post”-apartheid discourse, namely the liberal legalist and critical political approach, with the aim of setting out the theoretical and political background that informs this study. Having argued in favour of the critical political approach, I shall draw on literature confirming the veracity of such an approach by pointing out the continuing inequalities and injustices of colonial-apartheid that have persisted into the so-called “post”-apartheid era.
While the accounts I will refer to below harbour quite different attachments to the post-1994 dispensation – ranging from critical optimism to outright rejection – they underscore the continuity of settler-colonial white supremacy at the level of the underlying “structuring dynamics” of South African society.5 This is in line with the temporal metaphor of the afterlife and highlights that the institutional and legal shifts that transformed apartheid South Africa into a constitutional democracy have not translated into substantive socio-economic, cultural and existential change. It is furthermore most sharply along the axis of race, though always subtended by a multiplicity of other social categories, that colonial-apartheid power relations, material conditions and mindsets have endured and persisted. Under these conditions of stasis and inertia, South Africans remain racialised in terms of the political ontology that evolved out of conquest, colonial rule and apartheid. The utilisation of law (human rights, constitutionalism and transitional justice) as the central medium and technology of change has turned out to be incapable of fully grappling with and responding to the nature and depth of historical injustice. As Black lives have not yet experienced the transcendence of the dehumanising social realities of suffering, inequality, violence and exclusion, they remain in radical exteriority to the hegemonic society that celebrates itself as “post-apartheid”.
Current approaches to race and law in the post-1994 context
Aside from some nuances and variations, there are broadly two jurisprudential strands or approaches that inform current engagements with the relationship between race and law in South Africa. These are the “liberal legalist” or “constitutionalist” approach – which is the approach I take to be the dominant, mainstream or traditional one – and the “critical political” or “leftist” approach. Since my own theoretical methodology in this study proceeds from the “critical political” approach and argues explicitly against the “liberal legalist/constitutionalist” one, some delineation of their underlying assumptions and meaning, and illustration of the core ideological and practical divergences between them is necessary.
The liberal legalist/constitutionalist approach
As the name suggests, the liberal legalist approach to race and law is rooted in a traditionally liberal jurisprudence. Liberal jurisprudence presumes the legitimacy of a state in which we are all guaranteed equal protection before the law, and in which rights are said to facilitate individual freedom. In the liberal imagination, the law and the state are figured as technically neutral to competing social and moral interests and claims, and this technical neutrality is evidenced both by the liberal state’s protection of free-market capitalism and private property rights and its exaltation of the rational, willing, self-possessed autonomous individual as the basic social unit.6 Power, in the liberal conception, is mostly limited to the lawful exercise of state authority. To be sure, legal liberalism marks the “legal” and the “political” as the exclusive if not primary sites of power, completely eliding (and often naturalising and treating as personal) the workings of domination and the production of subjects in the spaces designated as cultural, social, economic or private.7 Colonialism and apartheid in this approach come to appear mostly as a deprivation of basic civil and political rights and a violation of Black people’s claims to equality and liberty – with the restoration of those abstract rights posited as the solution.8 Cultural, epistemological and psychological domination as well as the decimation of familial and affective ties caused by labour migration and forced displacement for example would not figure prominently into the picture, and certainly not as requiring legal and political redress.
At the level of its social ontology, liberalism centers on the individual subject – framed as self-made, self-possessing, fully agentic and bearing complete responsibility for itself. This translates into a conception of personhood, citizenship and identity as neutral. The autonomous subject of liberalism – consequent to her capacity for self-making – can choose her identity and need not be categorised or straitjacketed into identity categories not of her choosing.9 That these identities are historical and political productions appears to be irrelevant in the liberal imagination as it does not discriminate between identities imposed for purposes of domination and those articulated in the name of liberation. Nor does liberalism appear to distinguish consistently between identity categories with deep social materiality and visibility (such as race, class, gender and sexuality) and those which, although not completely apolitical, are formed through subjective desire, interpersonal relations, voluntary association, recreational preferences and affect and are not primary sites of power and resistance.10
Declaration of Originality
Summary
Dedication
Acknowledgements
1 Introduction
1.1 Problem statement
1.2 Motivation and background
1.3 Research questions
1.4 Overarching theoretical framework: race, time and the “afterlife”
1.5 A note on approach, politics and method
1.6 Chapter overview
2 Race, Law and the ‘Incomplete’ Transition
2.1 Introduction
2.2 Current approaches to race and law in the post-1994 context
2.3 “Race trouble”: living in strange places while lost in transformation
2.4 (Blocked) passages to freedom and reconciliation: a denial of justice
2.5 Sovereignty, historical justice and “the constitutionalisation of injustice”
2.6 Conclusion: the impossibility of being “post-”apartheid
3 Biko as a Critical Theorist of Race: Reading Black Consciousness as Social and Political Philosophy
3.1 Introduction
3.2 Biko as theorist and philosopher
3.3 Black Consciousness: the history of an Idea
3.4 The philosophy of Black Consciousness: themes and concepts
3.5 Locating Biko: reclaiming the rebel tradition
3.6 Conclusion
4 “Who’s Afraid of Critical Race Theory”: Blackness, Revolt and the African Diaspora
4.1 Introduction: bridging and breaching divides *
4.2 Cutting the border, crossing the Atlantic: notes on the “Ties that Bind” *
4.3 Africa as memory and symbol of black radicalism
4.4 Critical Race Theory today
4.5 Critical Race Theory and beyond: South African (re)visions
4.6 Conclusion
5 Reading Biko Jurisprudentially (or, Towards a Jurisprudencen of Liberation)
5.1 Introduction
5.2 Black Consciousness and “general jurisprudence”: race (in)justice and the social
5.3 “A subjectivity against the law”: Biko in the courtroom
5.4 Towards a critique of “post”-apartheid reason
5.5 Critique, liberation and reimagining jurisprudence: Biko’s prophecy
5.6 In place of a conclusion: on the possibility conditions for a jurisprudence of liberation
6 Coda: Black Consciousness and the “Counter-aesthetics” of “Post”-apartheid Law
6.1 Beginning, ending: in the time of Biko
6.2 Retracing the “jurisprudence of Steve Biko”
6.3 Black Consciousness as/and the counter-aesthetic
6.4 Ending, beginning: Biko’s last word?
Bibliography
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