Legal academics and progressive politics in South Africa: Moving beyond the ivory tower - PULP FICTIONS No.2

Karin Van Marle

Description

In the second edition of PULP FICTIONS we continue the search for a vibrant and active public sphere through debate. As in the first edition, the dialogue is one between two academics from the faculty of law and, as in the first edition, different conceptions of law, politics and the role of the academic are teased out.The context of the debate in this edition is a series of research meetings of the Department of Legal History, Comparative Law and Jurisprudence at the UP Law Faculty. Over a course of a few of these meetings different perspectives on law, politics and the limits/ potential of the law were voiced by different colleagues.Tshepo Madlingozi presented in one of the meetings his views on the role of legal academics in progressive politics. In this contribution, which appears here, he urges all of us to move ‘beyond the ivory tower’, get out of our ‘air conditioned offices’ and embrace participatory action research. Madlingozi defines the latter as field research where the researcher interacts and participates with communities and engages in research that is ‘unashamedly’ political.Anton Kok in response takes what he calls a ‘pragmatic instrumentalist’ view in contrast to Madlingozi’s more ‘ambitious critique’. Focusing more on law’s potential he highlights the areas where law could contribute to transformation.Both colleagues are not afraid to put their personal political/ideological views on the table. In this way they contribute to the vision of creating a space for dialogue, dissent, creativity and re-imaginings.About the authors:Mr Tshepo Madlingozi works at the Department of Legal History, Comparitive Law and Jurisprudence, Faculty of Law, University of Pretoria. His article: Legal academics and progressive politics in South Africa: Moving beyond the ivory tower.Mr Anton Kok is a Senior Lecturer at the Department of Legal History, Comparitive Law and Jurisprudence, Faculty of Law, University of Pretoria. His article: Legal academics and progressive politics in South Africa: Moving beyond the ivory tower - A reply to Tshepo MadlingoziAbout the editor:Karin van Marle is a Professor at the Department of Legal History, Comparitive Law and Jurisprudence, at the Faculty of Law, University of Pretoria.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2006
• Nombre de lectures: 0
• Langue: English

Extrait

PULP FICTIONS LEGAL ACADEMICS AND PROGRESSIVE POLITICS IN SOUTH AFRICA: MOVING BEYOND THE IVORY TOWER

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

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ISSN:1992-5174

LEGAL ACADEMICS AND PROGRESSIVE POLITICS IN SOUTH AFRICA: MOVING BEYOND THE IVORY TOWER

2006

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Legal academics, progressive politics and transformation in South African law schools

‘There is always the danger, for the white liberal imagination, that 1 politics simply spoils matters.’

In the second edition ofPULP FICTIONSwe continue the search for a vibrant and active public sphere through debate. As in the first edition, the dialogue is one between two academics from the faculty of law and, as in the first edition, different conceptions of law, politics and the role of the academic are teased out.

The context of the debate in this edition is a series of research meetings of the Department of Legal History, Comparative Law and Jurisprudence at the UP Law Faculty. Over a course of a few of these meetings different perspectives on law, politics and the limits/potential of the law were voiced by different colleagues. Tshepo Madlingozi presented in one of the meetings his views on the role of legal academics in progressive politics. In this contribution, which appears here, he urges all of us to move ‘beyond the ivory tower’, get out of our ‘air conditioned offices’ and embrace participatory action research. Madlingozi defines the latter as field research where the researcher interacts and participates with communities and engages in research that is ‘unashamedly’ political.

Anton Kok in response takes what he calls a ‘pragmatic instrumentalist’ view in contrast to Madlingozi’s more ‘ambitious critique’. Focusing more on law’s potential he highlights the areas where law could contribute to transformation.

1.

Rose, L, ‘A use for the stones’London Review of Books, 20 April 2006 22.

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Both colleagues are not afraid to put their personal political/ideological views on the table. In this way they contribute to the vision of creating a space for dialogue, dissent, creativity and re-imaginings.

Karin van Marle(Editor) Department of Legal History, Comparative Law and Jurisprudence, Faculty of Law, University of Pretoria

‘Legal Academics and Progressive Politics in South Africa: Moving Beyond the Ivory Tower’

1 Tshepo Madlingozi Department of Legal History, Jurisprudence and Comparative Law, University of Pretoria

Law schools are intensely political places despite the fact that they seem intellectually unpretentious, barren of theoretical ambition or practical vision of what social life might be ... The other part is ideological training for willing service in the hierarchies of the corporate welfare state. 2 Duncan Kennedy

1. Department of Legal History, Jurisprudence and Comparative Law, University of Pretoria – [e-mail].

Various drafts of this paper were delivered at the Department of Legal History, Jurisprudence and Comparative Law’s Intra-Departmental Research Forum, University of Pretoria, Pretoria, June 2005 and The Society of Law Teachers Association of Southern Africa Conference, 9 - 6 July 2006, Cape Town. I am most grateful to Karin Van Marle (who coaxed me into putting my thoughts on paper), Raymond Suttner (who read an earlier draft and incisively enlightened me on the trajectory of South Africa’s transition), Anton Kok (who critiqued an earlier draft and helped me clarify my thoughts) and most importantly, I am indebted to members of Harambe Legal Scholars (comrades who besides painstakingly critiquing an earlier draft, always provided inspiration and encouragement). The usual disclaimers apply. 2. D Kennedy ‘Legal Education as Training for Hierarchy’ (1998) 54-75, 54 inThe Politics of Law: A Progressive Critiqueby D Kairys (ed).

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1.

Our universities are institutions that tame and co-opt the rebel spirit. That, together with the provision of uncritical technical skills to the market and state, is what it is there for ... most academics are hopeless losers. Their only preoccupations are with getting and keeping tenure, lucrative consulting jobs, keeping the research- production-reward engine running, and, most importantly, keeping the journal and book publication tally steadily ticking over so that they can develop a fifty-page CV and earn enough air-miles to take the children to Disneyland or, when they are a little older, visit them in London or Sydney. 3 Pravasan Pillay

Introductory remarks

What role can legal academics play in progressive politics and social transformation in South Africa? To recast Cornel West’s question: What are legal academics to do if they are to remain relatively true to their moral 4 convictions and political goals? In this contribution I attempt to address this pressing question. One might ask what I mean by ‘progressive’ politics. For me ‘progressive’ politics is that which subscribes to neither conservatism nor (neo) liberalism. I use ‘progressive’ politics in contra-distinction to ‘reactionary’ politics. Progressive politics is politics that eschews elite- driven reforms in favour of people-driven reforms and aims to overturn liberal democracy for participatory democracy. My understanding of social transformation is linked to this meaning of progressive politics. I argue that in the context of South Africa, progressive politics and social transformation have no meaning unless those who claim to be ‘progressives’ connect with the struggle that is being waged by new social movements. In other words, progressive legal scholars need to take these struggles into account in their research.

3. P Pillay ‘It Don’t Mean a Thing if You Ain’t Got That Swing: A Review of Jonathan Jansen’s Wolpe Lecture’ (2006) 201-211, 209 in A Alexander (ed)Articulations: A Harold Wolpe Memorial Lecturer Collection. 4. See C West ‘Role of Law in Progressive Politics’ (1998) 708-717, 708 in Kairys (n 2 above).

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My argument rests on the following basic and unoriginal claim: that the shift 5 made by the African National Congress (ANC) towards neoliberalism since the early 1990s has meant that, despite the institutional mechanisms of democracy as well as a wide array of fundamental rights entrenched in the Final Constitution, democracy has not been very meaningful for that half of the population who live below the poverty line; for the 38% plus South Africans who are unemployed and for the millions who are ravaged by the HIV/AIDS pandemic, even though it is a treatable condition. To make this claim is not to be blind to or unappreciative of the gains that South Africa has made in moving from an authoritarian and racist regime towards a society underpinned by values of freedom, dignity and equality. However, the values of freedom, dignity and equality would not have any substantive meaning nor be fully realised, unless democracy also delivers material gains.

Critical reflection, particularly by academics, is thus needed in order to assess whether power has been sufficiently transformed and not just transferred. This would enable us to see whether power relations that enable the reproduction of inequality and social unevenness, that produce patriarchy, racism, xenophobia and homophobia,have beendislocated.

Such a reflection enables us to make sense of the fact that social move- ments like the Landless Peoples’ Movements, the Soweto Electricity Crisis Community, the Anti-Privatisation Forum and the Abahlali base Mjondola are often refused the right to engage in protest marches, are tear-gassed and 6 shot at and are generally harassed. Increasingly it seems as if the ANC government privileges non-governmental organisations (NGOs) and those

5. In the context of South Africa, neoliberalism has been described as ‘adherence to free market economic principles, bolstered by the narrowest practical definitions of democracy (not radical participatory project many ANC cadres expected)’. See P BondElite Transition: From Apartheid to Neoliberalism in South Africa(2005) 1. The various indicators of the fact that South Africa has taken a turn towards neoliberalism are illustrated below. 6. For a recent study on how the state isclamping down on social movements, see D McKinley & A VeriavaArresting Dissent: State Repression and Post-Apartheid Social Movements(2005) sourced from <http://www.csvr.org.za/papers/papvt10.htm> (Accessed on 13 March 2006.)

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who couch their demands in the rhetoric of human rights as its only legitimate interlocutors. Those who are not part of the elite strata (these include NGO workers, leaders of political parties, members of the mainstream press and academics) or who do not recite the human rights mantra, are often marginalised and maligned as ‘counter-revolutionaries’, ‘ultra-leftists’, accused of being organised by some mysterious ‘Third Force’, charged with sedition and, by all accounts, have the National Intelligence Agency unleashed upon them.

Before looking at the role that legal academics can play in progressive politics (part 3), I give a very broad overview of a few worrying signs as far as South Africa’s transition is concerned (part 2).

2.

2.1

The Trajectory of the South African Transition

7 ‘No Freedom for the Poor’

I often listen with interest to some legal academics submitting, explicitly or implicitly and with some irritation and despair, that if only this delinquent government could live up to the precepts of our marvellous ‘liberal and world-class constitution’, then poverty would be alleviated considerably, the gap of inequality would be narrowed and all South Africans would eventually walk hand in hand into the sunset as one happy rainbow nation. Very often, these analyses do not engage in any criticalstructuralanalysis of the system that reinforces systemic inequality and structural poverty. Such an analysis is important in order to bring to the surface the economic, cultural and political dynamics not only shaping the law, but which also are shaped by the law.

To this end, any serious analysis that, for example, aims to unpack and propose the role that socio-economic rights can play in alleviating poverty and social hardship; must not only beinter-disciplinarybut must also try to understand theplace and role of human rights discourse in the neoliberal

7.

Slogan of the Abahlali base Mjondola (‘The Shack Dwellers Movement’).

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agenda, thelimits of law in radical social transformation and indeed the politics of lawitself. Without doing this, I do not see how legal academics can hope to contribute in any strategically meaningful way to progressive politics. Such a structural analysis is also important in order to come to terms with the trajectory of the South African transition.

So what of the South African transition so far? Political economist Sampie Terreblanche describes the South African transition as one where ‘white political domination and racial capitalism’ have been replaced by ‘a new 8 system of democratic capitalism’. As a point of departure, legal academics must critically unpack the tensions and contradictions inherent in this system. Terreblanche sets out these contradictions as follows: [W]hile democracy emphasises joint interests, equality, and common loyalties, capitalism is based on self-seeking inequality and con- flicting individual and group interests. The legal system that protects both democracy and capitalism is based on the principle of equality before the law but maintains inequalities in the distribution of property rights and opportunities in the capitalist system. The ‘logic’ of capitalism — given the unequal freedoms and unequal rights upon which it is based — thus goes against the grain of ‘logic’ of 9 democracy.

For a veteran observer of Southern African politics, John Saul, South Africa experienced a ‘dual transition’ in the early 1990s: ‘On the one hand, a transition from a racially driven, authoritarian rule to a more democratic (institutional) system of governance; on the other, a reintegration in the 10 global capitalist economy along neoliberal lines’.

The embrace of neoliberalism by the new governmentculminated in the adoption of the overtly neoliberalGrowth, Employment and Redistribution (GEAR) macroeconomic programme in 1996. GEAR is essentially a conservative policy that affirms the virtues of a neo-liberal free-market economic system. This programme promised the following: cutting down on

8. S TerreblancheA History of Inequality in South Africa 1658-2002(2002) 15. 9. S Terreblanche (n 8 above) 16. 10. J Saul ‘Cry the Beloved Country: The Post-Apartheid Denouement’Monthly Review(2001) as summarized by McKinley and Veriava (n 6 above).

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government spending; keeping inflation in the single digits; encouraging ‘wage restraint’; speeding up privatisation of government assets; tax breaks for corporate capital; and the creation of a flexible labour market. Although criticised severely by ANC alliance partners, GEAR was meant to be the vehicle with which to transform the legacy of inequality, poverty and 11 stagnant growth.

GEAR has not only failed to deliver what the government and its acolytes 12 promised but has led to a much more skewed socio-economic landscape.

Various research studies show that the gulf of inequality has, in fact, increased, unemployment has soared and social hardship has actually become more accentuated in the past decade or so. McKinley refers to some of this research. For example, he refers to a 2003 survey conducted by the Community Agency for Social Enquiry (which included 6000 people in 60 poor communities), which found the following:

 55% of unemployed people and 32% of employed people said they were unable to afford food;

11. According to McKinley: ‘The promise was (and still remains) that a more caring neo-liberal capitalism will, at least eventually, ‘provide a ‘better life for all’’. The various “sales pitches” made by the ANC government and its corporate allies over the years — including the recently unveiled progeny of GEAR, the Accelerated and Shared Growth Initiative for South Africa (ASGISA) — have despite constant rhetoric to the contrary, all revolved around the notion that the pursuit of “growth” (within the accepted and institutionalised parameters of capitalist neo-liberalism) will provide both the ways and the means to address socio-economic inequality and injustice. South Africans have been told that they must just be patient and allow the government to govern and the market to allocate.’ D T McKinleyThe Making of a Myth: South Africa’s Neo-Liberal Journeysourced from <http://www.ukzn.ac.za/ ccs/default.asp?2,40,5,962> (Accessed on 03 March 2006.) 12. Veriava and McKinley have recently commented as follows on the effects of GEAR: ‘The subsequent implementation of GEAR has only served to reinforce the class inequalities and social unevenness that were a natural inheritance of South Africa’s apartheid socio-economic relations ... This has been the case precisely because the macro-policy chosen to ensure practical redress of apartheid’s ‘development deficit’ is informed by an ideological disposition (ie neoliberalism) that seeks to realise people’s fundamental socio-economic rights by relying on those existing social forces already in dominant possession of political and socio-economic power.’ Veriava & McKinley (n 6 above).