Law, History and Power: The Constitution of South Africa and the (Im)possibility of Justice

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In January 2022, the Minister of Tourism, Lindiwe Sisulu, wrote a series of articles beginning with one entitled “Whose law is it anyway?”, which questioned whether the latest Constitution of the Republic of South Africa, 1996 was really the law of, and for the Black majority population, and whether it might not be time to revisit the political and juridical foundations of South Africa itself. The debate which followed in the pages of the newspapers, and on television and radio stations included other politicians, political commentators, journalists, as well as legal practitioners, academics, and judges.

The current Minister of Justice and Correctional Services, Ronald Lamola, responded, and the then acting Chief Justice Raymond Zondo called a press conference in order to defend the integrity of the judiciary and the constitutional order more broadly (a decision which was to be the subject of much controversy). In an even more recent related event, the Premier of KwaZulu Natal called for a debate about whether South Africa should revert to parliamentary sovereignty, as opposed to the current and relatively recent set-up of constitutional supremacy. Former President Thabo Mbeki in turn responded in a recent talk justifying the ANC’s preference for constitutional supremacy in the negotiations of the early 1990s.

The resulting public discourse from these debates features polarised responses; with some uncritically supporting these sentiments and others mostly dismissing them without truly examining the theoretical, ideological, and historical terms of the debate.

The root of these debates is not merely whether or not the constitutional text ought to be amended or whether new laws should be passed to transform South Africa. The questions which arise are about fundamental aspects of the historical foundations of South African society itself, and about whether the “new” South Africa is really “new” at all. These fundamental jurisprudential questions of historical justice and repair have multi-fold significance for thinking on race, class, and gender, as well as old debates on the relationship between morality, law, and politics.

We hereby extend a call for papers to postgraduate students in the Faculty of Law and beyond, examining the terms, merits, and implications of this debate as it finds expression in various fields of research in law and society. Although the call is primarily to Law postgraduate students, other postgraduate students in the Humanities and Social Sciences whose research involves the broad themes of the conference, or with clear links to law and jurisprudence are encouraged to submit abstracts for consideration.

Possible themes for submission include:

• The meaning and potential of critical theories (such African Philosophy, Critical Race Theory, Feminism, Marxism, Third World Approaches to International Law) in relation to the study of law and society.
• The limits and possibilities of constitutional transformation of South African society and in specific areas of public, private, procedural and commercial law.
• General discussions or reviews of debates and themes in “post-apartheid” jurisprudence.
• The status of Ubuntu as a legal value and principle in South African law.
• An evaluation of the political compromises and the negotiated settlement of the Truth and Reconciliation Commission in the context of historical and corrective justice.
• The case for reparations for the crimes of unjust war, enslavement, colonialism, and apartheid.
• Constitutional Court jurisprudence relating to broad questions of human rights, justice, and redress.
• International law and empire/imperialism.
• Property and land as key areas of constitutional contention and debate.
• Law and political economy.

The themes set out above are not meant to be exhaustive. Any area of law touching on broader general themes of historical and political justice and the law will be considered for our conference.

Abstracts

Interested students are required to submit an abstract of no longer than 200 words describing the general thesis of their paper by identifying the problem to be examined, and the method and approach their presentation will adopt. Abstracts should be submitted to: Ms Lilandi Niemand ([email protected]) or Dr Ndumiso Dladla ([email protected]) on or before Monday, 13 June 2022.

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