Apartheid now : the private lives of others

Master Thesis


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University of Cape Town

My primary concern in this paper is to develop an account of freedom which incorporates within its very definition a moral responsibility to others, and which is therefore automatically limited by the conditions of its own exercise. It is my view that freedom, conceived in this way, leads ineluctably to a mandate to respect and promote the dignity of all others. When this freedom is objectively realised through the law in the form of direct horizontality of human rights, it breathes new life into the substantive legal revolution which took place in South Africa in 1994, and which ultimately led to the Constitution being grounded in the Fundamental principle of human dignity. My paper begins with a brief account of apartheid, focusing particularly on the way in which violent racial oppression was embodied in law. I then proceed to draw on the legal sociology of Niklas Luhmann, whose account of the legal system as a normatively closed, self-referential system produces two important insights for using the law as a tool for social justice. First, Luhrnam-1's conception of how societal sub-systems, including the law, feed off one another's complexity to generate new operations shows us that the deeply systemic nature of South Africa's socio-economic problems can be sourced in the deeply systemic nature of the apartheid laws which produced them. Vi/hat this means for us now is that the legal system as a whole cannot merely adopt a stance of neutrality and formal equality in the hope that this will produce a more equal and just society; rather, the entire legal system must make positive moves, most notably in the form of direct horizontality, to counter the ongoing effect of the morally bankrupt laws of the past. Luhmann's second insight is that the law is not inherently grounded in ethical principles, which means that the legal system often operates with harsh results for poor and disadvantaged South Africans. What this means then, is that we must find a way for the law to continually transcend itself and ground itself in substantive ethical principles, even if this endangers the continued existence of the law as a relatively autonomous, operatively closed system. My paper then proceeds to develop an account of freedom which promotes this sort of transcendence in the law. This account proceeds, in the first place, by explaining Immanuel Kant's defence of the possibility of our free will. Kant showed us that, whilst we cannot know ourselves definitively free, we can and indeed must posit ourselves as free in order to live up to the aspirations of our humanity. Kant shows further that positing ourselves as free requires that we exercise our freedom in the only meaningful way we can, which is to determine our free will on the basis of a moral law we lay down for ourselves and others. Secondly, my account draws on the work of Georg Hegel to show that freedom not only consists in relationships of mutual recognition between independent and free beings, but that we must objectively realise this freedom in our laws and institutions if it is to have any meaning for us at all, and if we are fully to live up to the demands of our free and rational nature. After having developed my account of freedom as morality in the law, I explain the true nature of direct horizontality both in theory and in practice, and show that placing legal duties on individuals to promote the well-being of others through direct horizontality is not only permissible in terms of our Constitution, but is in fact essential if we are to live up to the Constitution's mandate to respect the dignity of all others.

Includes bibliographical references (leaves 110-113).