Critique of the Law

Dale, Phumi and Kelly on the Law.

The Studio Session, Critique of the Law, was triple framed: first by John Comaroff’s morning talk (see below), then by Achille’s recalling the four doors of intellectual encounter through the JWTC, focusing on the studio sessions as more informal conversational times, and finally by our two co-chairs Julia Hornberger and Kelly Gillespie. Kelly and Julia posed questions along the lines of (1) What does it mean to carry on struggle in post-apartheid SA when political space has been saturated by the law; how do we engage the law critically and strategically? How do we not be abject before the law? And (2) for proper critique, we need to be first recognizing the enchanting and conjuring power of law in SA. In particular, the powerful negative apartheid past in SA animates the role of the Constitution; because of the undisputed injustice of the regime, the image of the Constitution is as a means to a radical political project. (In a legal jurisprudential key, see for instance the past and current South African Journal on Human Rights work of Dennis Davis and Karl Klare on this theme of transformation).

The morning had indeed been John Comaroff’s two hour talk, focusing largely but not entirely on constitutionalism and the judicialization of politics. That’s not the subject of this post but did provide the background to the afternoon session on the Critique of the Law. Supported by scholars such as Charles Taylor and South Africa’s own Martin Chanock, John seemed sympathetic to the view that legality was increasingly significant as a form of neo-liberal governance. Noting David Schniederman and South Africa’s own Heinz Klug analysis of a movement from a classic to a neo-liberal frame of constitutional design, John noted how the judicial has taken power by contrast to the bureaucratic and the parliamentary and how group rights have been constitutionalized only as aggregates of individuals.

The contrast to this studio session was real and intended: three inputs by self-professed activists – indeed of three different varieties: an academic/activist, a guerilla academic, and an organizational strategist for gay and lesbian rights. Jackie Dugard told us that law is a backup where politics has failed. While she was unrelentingly self-critical and institutionally modest, her water rights litigation nonetheless looks set to change some important policy at its Constitutional Court hearing in September. Hers was the perspective of the self-described human rights lawyer, but one who seeks to and does work with social movements. Dale McKinley, expelled from the Communist party for trying to be a communist, was explicitly utilitarian in his view of the law. It’s there; don’t debate, use it. Indeed, if those damn civil rights lawyers (not you Jackie) would just be willing to help me and my APF colleagues out on our criminal transgressions (see John for the dynamic of pushing the political into the criminal space) we would be happy to use them more. Phumi Mthetwa also was self-critical – recognizing that the gains on gay and lesbian rights were won by a small group of activists and not a social movement, and certainly not, as would be currently desired, with appropriate class analysis and alliances.

One similarity (but yet different) with John’s morning talk was around access to justice. For John, this was the issue of standing – how groups become aggregates of individuals or otherwise have their identities transformed through and in the legal/juridical encounter (broadly understood). For these three activists, access to justice was not enough money, lawyers, time, court attention, and other organizational resources. I’ve heard Jackie speak elsewhere on the dilemmas of litigating for those who are precisely not the poorest of the poor but that angle did not come out here. (See J Dugard in Part 3 of the South African Journal on Human Rights for her story of the Phiri water rights campaign thus far.)

One difference (but yet similar) was the local versus global framing. While he is not that beast, John could almost not help but at times sound like a comparative constitutional lawyer – the sheer volume of doctrinal holdings dispensed was enormous. On the other hand, apart from some backgrounding by Jackie, the afternoon sessions had little doctrine and moreover became explicitly anti-comparative constitutionalist. In response to a question about Kenya looking South for guidance, Jackie and Dale both advised against borrowing from South African legal models, at least with respect to the TRC. (Indeed, the Kenyan version will be the TRJ(for Justice)C). Phumi was silent on that one, perhaps implicitly approving some borrowing.

I came away wondering whether rights campaigning (think CALS, think TAC, think Khulamani) in the courts (think SA, think NYC) was indeed becoming or has already become the base narrative of legitimacy for transformation in our current juridified global politics. It is much easier to imagine a win in a New York City court for a Nigerian case than it is to imagine an election linking those two locations. In order to pursue emancipatory politics, it is important to have a good story to tell and a successful rights case is a good story.

Jonathan Klaaren