BEYOND LEGAL METANARRATIVES

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The problem: Silenced voices

“And when their eloquence escapes you Their logic ties you up and rapes you” The underlying premise explored in this thesis is that if the right to gender equality is interpreted and imposed within the confines of dominant western ideologies of liberal legalism that silence different voices and reduce the search for justice to the “refinement of technique”, there would exist little if no space for meeting the particular needs of (South) African women and men who wish to live out their dreams and desires differently.
Peter Goodrich reminds us that lawyers love legal texts.4 These texts, codes and precedents serve as legal metanarratives reflecting that which is posited to be the neutral, abstract and objective Truth harbouring an Authority believed to pre-exist and outlive any criticism.5 The legal text, as hegemonic, thus represents order and The focus on the rational individual as an atomistic being led to the birth of the first generation of civil and political human rights.8 It is this enlightenment vision of Man as free and equal and unencumbered that is problematic. An atomistic account of individualism is indeed implausible, as an awareness of self requires the contextual reality of other selves from whom we learn to differentiate and situate ourselves. The atomistic account also reflects discrimination as a societal aberration that can be addressed relatively easily by the law and, particularly, human rights law.
This in turn results in a formal vision of equality and distributive justice where likes are treated alike.9 Such a narrow liberal view of equality ignores the complex reality of life-with-others and the inherent worth of every person. Under the guise of a singular understanding of neutrality, rationality and objectivity, this abstract atomistic discourse succeeds in creating hierarchical dichotomies such as male/female, reason/affection, justice/care, and so on. By the very nature of these dichotomies, the former is considered to be of more value than the latter.10 Thus western law perpetuates the alienation of self from other and the consequent subordination and silencing of others in a fixed and immutable hierarchy. Once we manage to move beyond exclusionary dichotomous thinking, it would not seem radical or even strange to suggest that it is possible to find alternatives to western legal narratives by re-valuing different ways of being and becoming previously considered ‘inferior’.
Notwithstanding the frequently articulated critiques outlined above, the advent of a ‘culture’ of universal human rights has been hailed and celebrated by many as the fulfilment of the enlightenment promise of emancipation through reason and self- realisation. This unquestioning faith in the redemptive nature of human rights results in a sense of complacency where we forget that the discourse of abstract, universal human rights is “an indeterminate discourse of legitimation or of rebellion that has little purchase as a descriptive tool of society and its bond”. 12 In chapter two I outline the nature of, and problems with, western liberal legalism and its accompanying positivistic and formalistic approaches to the law and human rights discourses. Although the liberal spirit of the twentieth century has been celebrated in many quarters and appeals have been made to conserve this spirit, global trends should serve to remind us that our jealously guarded freedoms and individual rights have not brought us any lasting peace or sustenance. In fact, the zealous pursuit of freedom has produced or permitted massive income inequalities and the hegemonic and war-like search for freedom on behalf of others.
In my view, as a participant in life, traditional liberal interpretations of the right to gender equality, which centre the atomistic individual and lead to endless arguments surrounding the sameness/difference dichotomy, fall short of the utopian possibilities open to us in Africa.13 We should rather re-imagine new ways of living together in a post-apartheid society by severing the thrall of positivism. Of particular importance to my argument, expanded upon in chapter three, is the recognition of the values of care and compassion, informed by ethical feminism and ubuntu-thinking, within the public domain – values that have traditionally played a minor role (if any) in western legal decision-making processes.14 It is thus of tremendous importance for legal theorists to think beyond the caricatures of law and human rights and to resist the pull of the comfortable and the known. In fact, failing to test the limits of the law15 inhibits our search for imaginative and creative alternatives to the current system.16Indeed, if we can put aside the law books for a while to look into the suffering faces of others and take responsibility, we may find ourselves living in a world made new – a home without a Master.

TABLE OF CONTENTS :

• SUMMARY
• OPSOMMING
• CHAPTER ONE INTRODUCING A JURISPRUDENCE OF CARE
  • 1.1 The problem: Silenced voices
  • South African law-in-transition
  • 1.2 Approaching the problem of silencing
  • The limits of current equality discourse
  • Justice, care and other ‘paradoxes’
  • 1.3 Methodologies of work
  • 1.4 The path ahead
• CHAPTER TWO-WESTERN LEGALISM AND ITS DISCONTENTS
• 2.1 The pathway(s) of this chapter
  • 2.2 A critique of dominant legal narratives
  • 2.3 The text of the law and human rights
  • 2.4 The South African Constitution(s) and the end of apartheid
  • The Constitutional Court’s equality jurisprudence revisited
  • A substantive vision of equality
  • 2.5 Ethical Interpretations of the right to (gender) equality
  • 2.6 The possibilities of care
  • A (non)essential exploration of Gilligan
  • 2.7 A return to the call of the ethical
  • Van Marle’s challenge
  • 2.8 Retracing the way
• CHAPTER THREE BEYOND LEGAL METANARRATIVES
  • 3.1 Introductory remarks
  • 3.2 Storytelling within the (South) African context
  • 3.3 The recurring themes of ubuntu, storytelling and care Re-thinking ubuntu and/as care
  • 3.4 Beyond opposition(s) and domination
  • 3.5 Caring about others before the law
  • Searching for the golden thread
  • 3.6 Concluding this narrative with another
• CHAPTER FOUR FOUR STORIES
  • 4.1 Introduction
  • 4.2 STORY ONE: The story of an imprisoned father
  • Gender equality and gender stereotyping
  • 4.3 STORY TWO: The story of a woman seeking caring justice
  • Finding solace?
  • 4.4 STORY THREE: The story of a mother and daughter
  • trapped in culture
  • The story continues for anyone to hear
  • A legal decision both fair and tragic
  • 4.5 STORY FOUR: The story of dangerous bodies and judicial
  • Avoidance
  • Sex work and social justice
  • Responding to an unresponsive court
  • 4.6 “Conclusion(s)”
• CHAPTER FIVE THE PROMISE OF EQUALITY COURTS
  • 5.1 Introductory remarks
  • 5.2 Introducing the Equality Act and its courts
  • Some innovative aspects of the Equality Act and its courts
  • Courts of love
  • 5.3 Moving beyond substantive interpretations of gender equality
  • 5.4 Paying careful attention to stories of unfair discrimination
  • 5.5 That which is yet to be
• CHAPTER SIX THE WAY(S) FORWARD
  • 6.1 Looking back
  • 6.2 Revisiting Gilligan’s ethic of care
  • 6.3 The role of the ethical
  • 6.4 Looking forward to herstory
  • BIBLIOGRAPHY
  • A. Academic Articles, Books and Internet sources
  • B. Table of Statutes
  • C. Table of Cases

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