LAW AND REVOLUTION IN SOUTH AFRICA This page intentionally left blank j u s t i d e a s transformative ideals of justice in ethical and political thought series editors Drucilla Cornell Roger Berkowitz This page intentionally left blank LAW AND REVOLUTION IN SOUTH AFRICA UBUNTU, DIGNITY, AND THE STRUGGLE FOR CONSTITUTIONAL TRANSFORMATION Drucilla Cornell fordham university press new york 2014 Copyright © 2014 Fordham University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher. Fordham University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Fordham University Press also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. Library of Congress Cataloging-in-Publication Data Cornell, Drucilla, author. Law and revolution in South Africa : uBuntu, dignity, and the struggle for constitutional transformation / Drucilla Cornell. — First edition. p. cm. — (Just ideas) Includes bibliographical references and index. isbn 978-0-8232-5757-7 (cloth : alk. paper) — isbn 978-0-8232-5758-4 (pbk. : alk. paper) 1. Constitutional law—South Africa. 2. Respect for persons—Law and legislation— South Africa. 3. Customary law—South Africa. 4. Ubuntu (Philosophy) I. Title. ktl2070.c67 2014 342.68—dc23 2013037280 Printed in the United States of America 16 15 14 5 4 3 2 1 First edition for Michiel Bot This page intentionally left blank Contents Preface xi Introduction: Transitional Justice versus Substantive Revolution 1 I Should Critical Th eory Remain Revolutionary? 1. I s Technology a Fatal Destiny? Heidegger’s Relevance for South Africa and Other “Developing” Countries 21 2. Socialism or Radical Democratic Politics? On Laclau and Mouff e 34 II Th e Legal Challenge of uBuntu 3. Dignity Violated: Rethinking AZAPO through uBuntu 47 4. W hich Law, Whose Humanity? Th e Signifi cance of Policulturalism in the Global South 75 5. L iving Customary Law and the Law: Does Custom Allow for a Woman to Be Hosi? 91 III Th e Struggle over uBuntu 6. u Buntu, Pluralism, and the Responsibility of Legal Academics 107 7. Rethinking Ethical Feminism through uBuntu 124 8. I s Th ere a Diff erence Th at Makes a Diff erence between Dignity and uBuntu? 149