Law and Revolution in South Africa: uBuntu, Dignity, and the Struggle for Constitutional Transformation

Law and Revolution in South Africa: uBuntu, Dignity, and the Struggle for Constitutional Transformation

Drucilla Cornell
Copyright Date: 2014
Published by: Fordham University
Pages: 224
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  • Book Info
    Law and Revolution in South Africa: uBuntu, Dignity, and the Struggle for Constitutional Transformation
    Book Description:

    The relation between law and revolution is one of the most pressing questions of our time. As one country after another has faced the challenge that comes with the revolutionary overthrow of past dictatorships, how one reconstructs a new government is a burning issue. South Africa, after a long and bloody armed struggle and a series of militant uprisings, negotiated a settlement for a new government and remains an important example of what a substantive revolution might look like. The essays collected in this book address both the broader question of law and revolution and some of the specific issues of transformation in South Africa.

    eISBN: 978-0-8232-5759-1
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Preface
    (pp. xi-xx)
    Drucilla Cornell
  4. Introduction: Transitional Justice versus Substantive Revolution
    (pp. 1-18)

    The defeat of apartheid and the establishment of the “new South Africa” were hailed throughout the world as a miracle. A country ripped apart by the worst kind of racialized violence, the brutalization of the majority population by the apartheid state, and even the very idea of apartheid as a militant state-enforced degradation would hardly have seemed the likely candidate for such a miracle. Indeed, perhaps the very use of the word “miracle” is an insult to the heroic struggle in which millions of people sought to assert their dignity as human beings and their political rights as citizens.¹ It...

  5. I Should Critical Theory Remain Revolutionary?
    • 1 Is Technology a Fatal Destiny? Heidegger’s Relevance for South Africa and Other “Developing” Countries
      (pp. 21-33)

      In recent years we have all heard of the dire fate we will endure if we do not do something about global warming. And the steps that we must take, we are advised, are not small—a little recycling here or there will not solve the problem. We must change our way of living in the world with all of our electronic toys and horrifically wasteful oil-burning devices such as the massive SUVs that crowd our roads and highways. Of course, we must do something big to grapple with the problem of industrial waste. More generally, industrial consumption and destruction...

    • 2 Socialism or Radical Democratic Politics? On Laclau and Mouffe
      (pp. 34-44)

      When Ernesto Laclau and Chantal Mouffe’sHegemony and Socialist Strategy: Towards a Radical Democratic Politicsappeared in 1985, many committed socialists like myself hoped to find new insights into the meaning of socialism and its continued relevance to any notion of democracy.? Twenty-five years later, we are still—and by “we” I mean radicals on the Left—profoundly in their debt, for their searing critique of the economism of the European Marxist parties, and, more specifically, for their fundamental insight that the struggle for socialism is always a political struggle, and not one that is in any way determined by...

  6. II The Legal Challenge of uBuntu
    • 3 Dignity Violated: Rethinking AZAPO through uBuntu
      (pp. 47-74)

      In 2006 I was asked to contribute to a volume on the legacy of theAZAPOcase.¹ TheAZAPOcase was then, and remains today, one of the most controversial cases in the new South Africa, because it upheld that in certain circumstances, the Truth and Reconciliation Commission could grant conditional amnesty, and that this would override the rights of citizens of the new South Africa to seek both criminal and civil redress from the courts. I will discuss the legal arguments surrounding this case shortly. When I was first asked to write this essay, I was critical ofAZAPO,...

    • 4 Which Law, Whose Humanity? The Significance of Policulturalism in the Global South
      (pp. 75-90)

      In this chapter, I will address one of the most pressing questions of our time: how can we respect the fact that there are widely divergent ontologies and ways of life that must be articulated in international law, within the constitutions of nation states, and ultimately in continental communities such as the European community and the African community? InThe Law of Peoples, John Rawls boldly argued that recognition of ontologically different world views (particularly in relation to religion) would necessarily entail that a law of the peoples could not be rooted in liberal principles, particularly in a specific conception...

    • 5 Living Customary Law and the Law: Does Custom Allow for a Woman to Be Hosi?
      (pp. 91-104)

      We often hear it bandied about that customary law is premodern and inevitably patriarchal. The case I discuss in this chapter should show that this view of customary law is completely misguided. TheShilubanacase addresses the decision of the Valoyi royal authorities to appoint a woman as a hosi or chief, and to do so because it was mandated not by the Constitution alone, but by their law.¹ This case provides an excellent opportunity to discuss the complexity of customary law in South Africa, and the debates of exactly what is the “living” customary law. The question is not...

  7. III The Struggle over uBuntu
    • 6 uBuntu, Pluralism, and the Responsibility of Legal Academics
      (pp. 107-123)

      Pluralism is often reduced to a simple proposition. There are, in any given nation state, a number of competing social, cultural, and individual values, and these must be tolerated within an overarching sovereign order that both encompasses them all and allows them a degree of independence. Indeed, as John and Jean Comaroff have eloquently argued, there is a dialectic between neoliberal capitalism and the proliferation of values taken as facticity by our global society, because the hegemony of the Washington Consensus seemingly eclipses all the big ideals that once claimed to stand in for the ideal of humanity. Famously, one...

    • 7 Rethinking Ethical Feminism through uBuntu
      (pp. 124-148)

      Transnational feminism, as both an ethical ideal and an actual struggle to form political alliances, raises some of the most difficult and burning issues of what it means to challenge profound Eurocentric biases that have often stood in the way of such a coalition. In this chapter, I will address how and why such a transnational alliance actually demands of us that we open ourselves to rethinking some of our most cherished feminist ideas, such as freedom and equality, without giving up on those ideals. That is, in a profound sense, the challenge of how we rethink the feminist project,...

    • 8 Is There a Difference That Makes a Difference between Dignity and uBuntu?
      (pp. 149-168)

      In South Africa, legal and philosophical scholarship frequently draws sharp contrasts between dignity and uBuntu. In this chapter I want to challenge some of the assumptions that underlie these sharp contrasts. I will also argue, however, that there is adifference that makes a differencebetween uBuntu and dignity, and that this difference is important in the continuing struggle for a truly new South Africa, particularly in efforts to challenge the neoliberal policies of the African National Congress (ANC) undertaken on a daily basis by on-the-ground movements. Legally, uBuntu is important, as would be expected, in the arena of socio-economic...

    • 9 Where Dignity Ends and uBuntu Begins: A Response by Yvonne Mokgoro and Stu Woolman
      (pp. 169-176)

      In the decade or so in which Professor Cornell has engaged South Africa’s jurisprudence, her name has become synonymous with academic discourse about and around the values of dignity and uBuntu. As colleagues and collaborators, it is often hard to know where Drucilla Cornell’s thoughts on these subjects end and one’s own ruminations begin.¹ What follows is an amplification of, or a riff upon, Professor Cornell’s “Is There a Difference That Makes a Difference between Dignity and uBuntu?” Contestation is not in the cards. But emotion is. Adjudication and academic scholarship in the social sciences—as much as any other...

  8. Conclusion: uBuntu and Subaltern Legality
    (pp. 177-184)

    The value of uBuntu is disputed in South Africa. In all the burning debates, uBuntu is often deployed on both sides of the question. Part of the reason that uBuntu is used in the streets as well as the courts—and I have argued this elsewhere—is that it remains an ethical force in the day-to-day life of South Africans. uBuntu has an odd history, in that it is a Zulu word that has often been combined with the Tswana wordbothoto yield uBuntu/botho. But then uBuntu/botho is picked up in just that form, and not further translated. So...

  9. Notes
    (pp. 185-208)
  10. Index
    (pp. 209-210)
  11. Back Matter
    (pp. 211-212)