Joel M Modiri

This chapter situates 'race' within the discourse of international law and development. Drawing on Black radical and anti-colonial political imaginaries, it puts forward a reading of development as an 'essentially racialised concept' continuous with the worldmaking imperial force of global white supremacy. The chapter seeks to place the interrelated formations of global white supremacy and development within the long history of European colonial expansion, slavery, conquest, capitalism, imperialism, and their contemporary legacies. It extends this analysis by plotting two stories of global white supremacy as worldmaking under the signs of 'underdevelopment' (from Walter Rodney) and 'intimacy' (from Lisa Lowe). In this it offers a critical illustration of the centrality of race to the making of the present global order, and the imbrication of development (and liberalism) in colonial violence, racial domination, and an anti-Black civilisational episteme. The chapter ends with a reflection from the standpoint of 'we-the-underdeveloped' (from Wynter) in which underdevelopment is reframed as a problem that urges a thoroughgoing 'epistemological transformation' against the 'white world'.

Two decades since the enactment of South Africa’s present constitution, the durability and endurance of ‘past’ inequalities and injustices illustrate that the ‘new South Africa’ – lauded as a miracle nation with the best constitution in the world – can no longer be regarded as an unqualified success. The legal and constitutional foundations of post-1994 South Africa are in a process of renegotiation that invites new and alternative perspectives and approaches.

This comprehensive volume explores this process of renegotiation by engaging political and intellectual contestations circulating in South African academic and public discourse relating to continuities and discontinuities between the colonial-apartheid past and the post-1994 constitutional present. The authors analyse the moral, intellectual and political unravelling of post-1994 South African constitutionalism (as legal text and political culture) and enquire whether it has been able to respond adequately to the fundamental contradictions generated by colonisation and apartheid. They also consider how centring the historical problem of European domination and conquest in Africa – and South Africa in particular – might provide an alternative frame or lens to theorise and understand contemporary South African realities.

This book marks out a complex field of contestation – involving competing histories, locations, visions and perspectives – that raises multifaceted questions regarding law, history and politics. It is the outcome of a South African Journal of Human Rights colloquium and was originally published as a special issue of the journal.

In this paper, I offer provisional notes on the relation between race, spatiality
and coloniality in the context of the putatively “new South Africa” with the aim of calling that proclaimed newness into question. I want to offer a distinctly political rendering of space as a crucial instrument in the making of the colonial world and in the distribution of human value according to the hierarchies of racial difference fabricated within the European colonial imaginary. That is to say that I wish to highlight the relentlessly spatial nature of the colonial project: colonisation and coloniality are first and foremost impositions on space. The global hegemony of the idea of Europe consists largely in its deep imprint on the landscape. Through the spatial and aesthetic fiction of terra nullius (or the “empty land” myth1 in the South African context), colonisation clears away the indigenous inhabitants of the land and violently inaugurates a global racial hierarchy. Colonisation “links space with race and race with personhood” (Mills 1997, 50) by constructing the European subject (whiteness) as the embodiment of civilisation and humanity while imbuing indigenous and racialised communities with the value of absence, sub-personhood and ontological negation.

EXCERPT: This struggle centers around the problem of political time / political temporality which is the impetus for this writing. I wish to reflect on time as a crucial site of contestation in the present South African conjuncture – by which I mean to refer to the question that Rose herself poses, namely how much “at a deep level, has really changed” in the wake of colonial-apartheid? Both this question and the manifold answers it invites demarcate a fundamental set of tensions over how to think about and reckon with the unliveable histories of violence, oppression and dehumanisation without which the very idea of South Africa would not, could not, exist. One finds broadly two ways of thinking about these histories. On the one hand, a protocol of optimism narrating South Africa’s unfoldment in teleological terms, of triumph and progress, a story of a “miracle nation” which, even if still imperfect, overcame the apartness of the past and remade (or is remaking) itself under the signs of democracy, equality, and freedom. Rose joins many others in noting the waning purchase and coherence of this narrative in the face of undeniable empirical markers of a riven and disharmonious social fabric punctuated by persisting racialised distributions of power, vulnerability, and (quality of) life. On the other hand is a narrative of failure and delayed rupture – where the founding historical injustice is still in motion even if in disguise. This critical protocol insists on a present that is continuous with its past, where the division between past and present itself comes into interminable crisis, where the time of conquest and apartheid is a living presence, compounding and intensifying with the passage of time. My own contribution in what follows is not only to adduce theoretical support for this second historical sensibility but to argue more generally for serious and greater attentiveness to the problem of political temporality and historical time in South African legal, political and social theory and practice.

This article sets out a few key questions, themes, and problems animating an Azanian social and political philosophy, with specific reference to the radical promise of undoing South African disciplinary knowledges. The article is made up of two parts: The first part discusses the epistemic and political forces arrayed against black radical thought in South Africa and beyond. A few current trends of anti-black thinking-liberal racism, Left Eurocentrism, and postcolonial post-racialism-which pose challenges for the legibility of Azanian critique are outlined. Part two constructs an exposition and synthesis of key tenets of Azanian thinking elaborated upon under three signs: 'South Africa', 'race and racism', and 'Africa'. The aim of the discussion is to illustrate the critical, emancipatory potential of Azanian thought and its radical incommensurability with dominant strands of scholarship in the human and social sciences today. The article ultimately defends the reassertion of black radical thought in the South African academy today and underscores in particular the abolitionist drive of Azanian political thought.

This special issue of the South African Journal on Human Rights comprises a selection of papers that were first presented at a colloquium in May 2017 entitled ‘Conquest, Constitutionalism and Democratic Contestations’. Both the colloquium and the articles in this special issue are animated by pressing political and intellectual contestations circulating in South African academic and public discourse relating to continuities and discontinuities between the colonial-apartheid past and the post-1994 constitutional present. Indeed, even the distinction between the ‘past’ and the ‘present’ in the South African context is an object of critical interrogation.

This article reflects on the limits of “post”-apartheid constitutionalism through an extended theoretical discussion and close reading of the Constitutional Court decision in City of Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC). It focuses in particular on how South Africa’s history of colonial conquest, white supremacy and racism – and the nation’s failure to reckon with that history – introduced a “constitutional irresolution” in the case.  Developed by Emilios Christodoulidis as a critique of constitutional optimism in all its forms, “constitutional irresolution” describes what happens when constitutionalism, because of its institutional and rigid character, is unable to address political or legal contestations which challenge its own terms and norms. In this article, this irresolution is then related to the work of Mogobe Ramose and specifically his critique of how the negotiated settlement and transition of the 1990s followed a path of democratisation, which not only negated the exigency of decolonisation and historical justice but also resulted in the “constitutionalisation of the injustice arising from the unjust war of colonisation”. Since City of Tshwane raised questions concerning race, belonging and the still colonial character of South African spaces, mind-sets and power relations, it illustrates the persistence of the colonial-apartheid past into the constitutional present. Among other things, I take this blurring of the divide between the past and the present to be an exposure of the limits, or irresolution, of “post”-apartheid constitutionalism and “post”-apartheid jurisprudence.

This article examines the meaning and progress of post-1994 constitutional democracy in South Africa from the perspective of its (dis)continuity with the longue-dur
ee history of colonial conquest, settler-colonialism and white supremacy. The argument developed in this essay is that the lack of restoration and fundamental change that haunts the present South African legal and political order can be traced to this (dis)continuity. This argument is deepened by a problematisation of the widespread public, political and academic worship of the South African constitution as well as a synthesis of a variety of critical perspectives on post-1994 law, society and constitutionalism into a challenge to the putatively transformative and revolutionary pedigree of the 1996 constitution. This article ultimately defends the emerging critique of the constitutional order as a historical opening for the reimagining of a new social order and, for the purposes of this article, an alternative jurisprudence as well.

South African legal education remains trapped "at the centre of the knot" which is to say it is fundamentally disconnected from its social context and thus largely unable to grapple with the complex political and intellectual predicaments of post-1994 South Africa. This article reiterates arguments made previously concerning the need for a critical legal education that produces lawyers who are not only technically and professionally competent but also socially, politically and intellectually engaged. Three particularly significant themes for engagement in critical legal education are identified as firstly, the turn to a subversive approach to law; secondly, the problematisation of constitutional fetishism; and thirdly, the decolonisation of knowledge and legal knowledge in particular. Paulo Freire's insights on critical pedagogy are also considered as they disclose an alternative view of legal education linked to social justice, liberation and critical self-reflection. This argument for a renewal of legal education is then further extended to a critical analysis of the current Council on Higher Education's review of the standard of the LLB degree. What emerges throughout is the search for not only a higher education but also a deeper education, one that prepares law students for what is an ethically and politically complicated world. Teaching law critically in this time and space demands nothing less.

This chapter joins the call to reflect on the courtroom as a space of resistance through an excursion into the history of the political trials of black radical revolutionaries in South Africa and the United States. I shall draw on Frank B. Wilderson’s account of the trials of Black Liberation Army (BLA) soldiers in the United States in the late 1960s up until the early 1980s and extend his analysis further though an engagement with the 1976 trial of members and student leaders of the Black People’s Convention and South African Students Organisation (known as the BPC/SASO Trial), and specifically Steve Biko’s testimony in that trial.  True to Michel Foucault’s insight that ‘[w]here there is power, there is resistance’,  the courtroom in these trials is appropriated and transformed from a site representing the institutional reinforcement of unjust power and legal violence to a site of struggle, where black resistances to racial oppression are choreographed and performed. In recalling these trials, specific attention will be paid to the tactics by which the black radical activists resist and disrupt the logics, mechanisms and protocols of the court and by extension, of (the) law itself. Attention will be paid as well to those instances where they appropriate and reclaim the time and space of the courtroom for the articulation and enactment of their political ideology.
I shall then proceed to read those acts of resistance performed in the courtroom as forms of legal critique operating in the guise of a ‘general jurisprudence’ and standing in the tradition of critical race theory. This reading relies on Wendy Brown’s argument on the timeliness of critique, and its indispensability in times of crisis and darkness, as well as Foucault’s ruminations on critique, where he draws a connection between critique and transformation. Brown and Foucault’s combined formulations of ‘critique’ will then also be extended into a brief exploration of the relation between theory and practice, specifically as this relation pertains to a left critique of law. Through this reading, and with reference to the notion of critique, I claim that traces of critical race theoretical critique can be discerned in the moments of resistance that transpire in the political trials of the BLA and in Biko’s testimony, where the setting of power is suspended and inverted in such a way that the court, as the aesthetic and institutional representation of the Law, is itself put on trial. Put another way, I will suggest that the acts of resistance encountered in the political trials of the black radicals discussed below emerge from a decidedly critical legal standpoint (specifically exhibiting the core themes of critical race theory) in order to underscore the relation between resistance and critique as a historic feature of black struggles against white supremacy.
After establishing this important connection between resistance and critique, the chapter moves from a commemoration of past heroes and struggles to a contemplation of our legal and political future(s) through an examination of the contemporary problematic describable as the rise of legalism in social and political discourse or the juridification of politics and human relations that has taken hold in post-apartheid South Africa.  Here the aim will be to explore and problematize the ostensible shift from the black radicals’ view of the court as a site of oppression, invested in the reiteration and legitimation of racial subordination against blacks to the liberal ‘post’-apartheid view of the court as a hallowed space exclusively bearing both the promise and capacity for racial justice and of the judiciary as the appropriate final arbiter of political and social conflict.
Although this chapter is a response to a conference invitation dedicated to the fiftieth anniversary of Nelson Mandela’s famed testimony as an accused in the 1963–1964 Rivonia Trial, the omission of Mandela and the Rivonia Trial from this analysis is, save only for one brief instance, not accidental. It is, first of all, political because this chapter is written from a black radical socialist political perspective that Mandela was known to be intensely hostile towards and dismissive of while he was on Robben Island.  Halfway through this chapter, I take issue with the fetishization of law and constitutionalism within the South African public imagination. To the extent that this fetishization is central to a conception of national patriotism and constitutional citizenship in South Africa of which Mandela is the most iconic ideological representative, the exclusion of his politics and testimony is crucial to the consistency and integrity of my text. Indeed, the canonization and monumentalization of Mandela and its association with the post-racial legal optimism and multicultural reformism embodied in the Constitution is a significant part of the rise of the culture of legality and constitutional optimism that is being contested in this chapter. Echoing Foucault again, this chapter might then itself also be taken in the spirit of a certain resistance against dominant narratives of post-apartheid South Africa and, specifically, the mythologization and idealization of Mandela within those narratives.
The broad concern provoking this enquiry, and specifically the reason for the juxtaposition of the critical acts of resistance in the courtroom with the turn to legalism and the juridification of politics, is what I sense as the loss of faith by certain parts of the left in the viability of a more radical political future in the face of the seeming givenness of the present and inescapability of the status quo of liberal democracy and neoliberal capitalism. Returning to this archive of struggle in the black radical tradition might revive or reinvigorate current political struggles, discourses and movements in South Africa to expand the width and depth of their projects to encompass deeper, more substantive, conceptions of freedom, equality, democracy, transformation and community. Also underlying this chapter is the continuing search for a critical race jurisprudence and for a future refiguring of racial justice, equality and freedom for a ‘post’-apartheid South Africa that seemingly no longer recognizes blacks’ historical claims for justice, reparations and redress. This chapter thus stands at the intersection between past and future, taking the opportunity not only to celebrate, but also to mourn.

This article adopts an analysis that explicitly politicises poverty and relates it to the concrete history of racialised capitalism and structural inequality that defined colonialism and apartheid and continues to persist and intensify in "post"-apartheid South Africa. Rather than formulating racialised poverty in legalist, economist or managerial terms, it should rather be understood as a form of oppression that comprises exploitation, marginalisation, powerlessness, cultural imperialism and violence. Such a formulation would make social structure, historical injustice and power central and would also allow for poverty to be grasped beyond a purely distributive logic by bringing to light the non-distributive, non-economic dimensions of poverty. Comprehending poverty in this way, as not only a question of economic distribution and empowerment, but also one of ethical, moral and even ontological recognition necessitates an enquiry into the emancipatory force of rights. Given their centrality in political and social discourse and in legal scholarship on poverty, it is worth considering whether and to what extent rights can be utilised in the struggle against (racialised) poverty.

This article reflects on recent debates on legal education in South Africa. I argue that the value of legal education should not be indexed by how well it serves the needs and expectations of the legal profession and judiciary, but rather how it contributes
to a new jurisprudence suited to the legal, social and political transformation of South Africa. I therefore argue against a reading of the crisis of legal education as one that is instrumental and economical (the inability to produce efficient legal professionals) and focus rather on the jurisprudential crises that lie at the heart of law and jurisprudence,
namely the crisis set in motion by the shift from a general jurisprudence, centered on the ideal of justice, to a restricted jurisprudence, focused merely on the coherence of the positive law. I argue that what is needed as a response to this crisis is a critical legal education, or an approach to the study and teaching of law grounded in a critical jurisprudence. The turn to a critical legal education suggested in this article is then further linked to an understanding of law as a humanities discipline and to the humility that this will require of legal academics, lawyers and judges.

This article enquires into and joins the critique of the current state of legal education in South Africa against the backdrop of a post-modern, post-colonial and post-apartheid context. In response to current debates on the state of legal education and the quality of the graduates it produces, the author argues that the problem goes beyond the failure to provide corporate law firms with appropriately skilled and qualified graduates but also has implications for substantive democracy, active political citizenship, transformation, freedom, justice, and ethics. Through a survey of select legal education literature in South Africa and abroad, the author identifies the central problem as being the reliance by most South African law teachers on the dominant paradigm of traditional (or black-letter) legal education. Following the writings of Duncan Kennedy and Michel Foucault, this paradigm of traditional education is shown as being not only pedagogically ineffective but also politically corrupt and ideologically conservative. While failing to impart critical thinking skills to law students, it also works to co-opt them into the service of hierarchy and hegemony and functions to discipline them into docility, thereby legitimating the conservative legal culture. As an alternative, the author proposes the turn towards a more critical, engaged approach to legal education, drawing in particular from critical legal studies (“CLS”) and from the critical liberatory pedagogy of Paulo Freire and bell hooks. By following a more critical direction, and by enabling students to think critically about law, to question and to transgress, legal education can serve as a practice of freedom. The broad aim of the article then is to put forward a set of ideas contemplating a legal education that is otherwise, that brings something else into the law classroom such that it might serve as the meeting point between law and justice.

This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited NO & Others 2013 3 SA 236 (SCA).  It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: First, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law.  It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for post-apartheid South Africa.

"Many legal scholars, practitioners and judges have overlooked the ways in which racial identities and hierarchies have been woven into existence in social systems like law, labour, social power, knowledge and ideology. This article suggests that this oversight can be addressed by developing a post-apartheid critical race theory that puts “race” back on the agenda by situating it within legal, political and social discourses. Such a critical race theory is proposed as an alternative to, and critique of, traditional (liberal/conservative) approaches to race and racism that emphasise individual autonomy, colour-blind constitutionalism and race-neutrality. Critical Race Theory (CRT) seeks to examine, from a legal perspective, the ways in which prevailing conceptions of race (and to some extent, culture and identity) perpetuate relations of domination, oppression and injustice. In South Africa, the necessity of such a critical engagement with race and law is justified by a long history of institutionalized white supremacy and white racial privilege which today coexists with ongoing (and lingering) forms of anti-black racism and racial exclusion. The starting point will be a broad discussion of competing approaches to race and racialism that inform equality jurisprudence and socio-political discourse followed by a theoretical discussion of the conceptual tools of US CRT and an analysis of post-1994 constitutional jurisprudence. The main aim is to problematise the contradictions and tensions that characterise South African equality jurisprudence and human rights discourses by exposing and critiquing the racial ideologies embedded in them. The broader concern of this article, however, is to point to the significance of critical race perspectives in South African legal and interdisciplinary thinking in a way that might disclose possibilities for racial justice and equality."

This article reflects on the current trajectory of feminist legal theory from the perspective of popular culture and social discourse. With the use of film theory, literature and entertainment media, the author illustrates how depictions of gender codes and representations of gender relations in popular culture link up with larger questions on sex and gender politics, equality and power. Analysing these issues in terms of the extent to which popular culture reinforces patriarchal prescriptions of women’s identity
and contributes to strengthening the culture of male dominance in society, two distinct theories are formulated as possible responses namely, an “ethics of refusal” and a “politics of sisterhood”. The
notion of “refusal” as introduced by Karin van Marle is an approach to issues of gender (in)justice and (in)equality that explores the capacity of women to resist male dominance and in turn, problematise the values and norms laid down by the reigning patriarchal order. To connect the refusal of patriarchal conceptions of women’s issues to the refusal of gender power, a “politics of sisterhood” offers a counterweight to the underlying phallocentric conditions and structures that subordinate, exclude
and control women. The main purpose of this article is to emphasize the importance of thinking about women’s lives and concrete realities, as experienced under (the) law, in dynamic ways that break from traditional approaches to feminism and gender equality. Refusal and sisterhood are two perspectives that disclose such possibilities for reflecting on women’s struggles for equality, dignity and recognition and on eradicating the vestiges of patriarchy and sexism in our society. In the final analysis, the author argues for more than just legal reform and instead calls for reconciliation between the sexes and genders and a radical transformation of sex and gender relations.

This study contemplates the development of a South African critical race theory (CRT) with reference to the thought of Steve Biko.  From a long view, the aim of this research is to bring the insights of the Black Radical Tradition to bear on the study of law and jurisprudence with particular focus on the problem of "post-apartheid South Africa". Working from the scene of the "afterlife" of colonial-apartheid and situated at the intersection of critical race theory (CRT) and Black Consciousness (BC), this study aims to develop an alternative approach to law and jurisprudence that could respond to the persistence of race and racism as the deep and fundamental fault-lines of post-1994 South Africa.
The transition to a "new" South Africa, undergirded by the discourses of human rights, nation-building and reconciliation and underwritten by a liberal and Western constitution followed a path of change and transformation which has resulted in the reproduction of colonial-apartheid power relations.  Settler-colonial white supremacy as both a structure of power and a symbolic order continues to determine, shape and organise the South African socio-economic, cultural, political, psychic and juridical landscape.  This foregoing problem has remained largely unthought in the South African legal academy and therefore this research takes up the task of recalling the thought, memory and politics of Steve Biko in search of a critical and liberatory perspective that could counter dominant theoretical and jurisprudential accounts of the past and present.
The study therefore explores Biko's historical interpretation of the South African reality and his theorisation of concepts such race, identity and liberation and retrieves these in order to critique and contest both post-1994 law, society and jurisprudence as well as the faulty epistemological, historical, and ideological terms on which they are based. In the end, the study proposes to read Biko's thought as standing in the guise of a jurisprudence of liberation or post-conquest jurisprudence which unsettles the very foundations of "post"-apartheid law and reason.