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"Ethical" Interpretation of Equality Karin Van

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TOWARDS AN "ETHICAL" INTERPRETATION OF EQUALITY by KARIN VAN MARLE Submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA PROMOTOR: PROF DH VANWYK JOINT PROMOTOR: PROF J NEDELSKY DECEMBER 1999 Throughout the text of my thesis I insist on the impossibility of achieving justice fully in the present. I hereby concede that it is similarly impossible to thank the people who directly and indirectly assisted and supported me in writing this thesis. Yet, I still would like to say a plain and simple thank you to a few people without whom the creation of this thesis (landscape, patchwork) would not have been possible or at the least much harder. Firstly my parents, family and friends for their continuous interest and support. A special word of thanks to friends, colleagues and members of a weekly reading group, Henk Botha, Danie Goosen, Wessel le Roux and Andre van der Walt for their critical reflections and engagement. To the Law Faculty of the University of Pretoria who sponsored my visit to my joint­ promoter in Toronto. To my promoter Dawid van Wyk for his helpful commentary on and interest in the thesis. Generally for his calmness and patience towards me. He sets a good example of going beyond the mere instrumental obvious. To my joint-promoter Jennifer Nedelsky for her direct encouraging support over the three years via email contact as well as during a visit in Toronto. But also indirectly for voicing her thoughts through her writing for others to draw inspiration from. In asking "but, why" and "how do you see this institutionally" and "what is the practical effect of this" you pushed me further than I would ever have thought of. And to my best friend, colleague and husband, for life, love and everything else. 305.0968 VANM Financial support from the Centre for Research Development for this research is hereby acknowledged. Opinions expressed in this thesis and conclusions reached are those of the author and must not necessarily be attributed to the Centre for Research Development. VANM ~ -- l 111111111111111 0007764898 SUMMARY The aim of this thesis is to search for an "ethical" interpretation of equality. Although the current South African approach of "substantive" equality is better than mere "formal" equality, I fear that even substantive equality will again deny or reduce difference. An "ethical" interpretation of equality is a way of interpretation that radically acknowledges difference and otherness. I argue for an ethical interpretation of equality as an alternative to substantive and formal equality. The intersection between public space, equality and justice is essential to such an ethical interpretation. An ethical interpretation of equality requires that present South African visions of public space must be reconstructed and transformed continuously. This means that an ethical interpretation of equality rejects finality and closure in respect of public space. The visions of public space and perspectives of equality that I support are alert to difference and otherness. My understanding of justice is that it is never fully achieved in the present. Justice functions as a future orientated ideal. The "ethical" in an ethical interpretation of equality reflects an awareness of the limits of any present system to encompass equality and justice completely. Visions of public space, perspectives on equality and landscapes of justice (the features of the ethical intersection) form the main sections of the thesis. I discuss the South African Truth and Reconciliation Commission (TRC) as a manifestation of the ethical intersection between public space, equality and justice. The TRC was an outstanding example of reconstruction and transformation of public space. It was a public space where each and every individual was treated equally while concrete contexts, specific circumstances and difference were taken into account. The TRC as event was inspired by the ideal of justice. The value of the TRC as a manifestation of the ethical intersection is the profound effect it may have on our interpretation of equality by demonstrating the limits of the substantive approach. OPSOMMING Die doel van hierdie proefskrif is om ondersoek in te stel na 'n "etiese" interpretasie van gelykheid. Alhoewel die huidige Suid-Afrikaanse benadering van "substantiewe" gelykheid beter is as blote formele gelykheid, vrees ek dat selfs substantiewe gelykheid weereens verskil sal ontken of gering skat. 'n "Etiese" interpretasie van gelykheid is 'n manier van interpretasie wat radikaal kennis neem van verskil en andersheid. Ek argumenteer vir 'n etiese interpretasie van gelykheid as 'n alternatief tot substantiewe en formele gelykheid. Die interseksie tuseen publieke spasie, gelykheid en geregtigheid is noodsaaklik vir so 'n etiese interpretasie. 'n Etiese interpretasie van gelykheid vereis dat huidige Suid-Afrikaanse visies van publieke spasie aanhoudend gerekonstrueer en getransformeer moet word. Dit beteken dat 'n etiese interpretasie van gelykheid finaliteit en geslotenheid met betrekking tot publieke spasie verwerp. Die visies van publieke spasie en perspektiewe op gelykheid wat ek ondersteun is gevoelig vir verskil en andersheid. Ek verstaan geregtigheid as nooit volkome bereikbaar in die teenswoordige nie. Geregtigheid tree op as 'n toekomsgerigte ideaal. Die "etiese" in 'n etiese interpretasie van gelykheid weerspieel 'n bewustheid van die onvermoe van enige teenswoordige sisteem om gelykheid en geregtigheid volledig te omvat. Visies van publieke spasie, perspektiewe op gelykheid en landskappe van geregtigheid (die eienskappe van die etiese interseksie) vorm die hoofafdelings van die proefskrif. Ek bespreek die Suid-Afrikaanse Waarheids-en Versoeningskommissie (WVK) as 'n manifestasie van die etiese interseksie tussen publieke spasie, gelykheid en geregtigheid. Die WVK was 'n uitstaande voorbeeld van die rekonstruksie en transformasie van publieke spasie. Dit was 'n publieke spasie waar elke individu gelyk behandel is terwyl konkrete kontekste, spesifieke omstandighede en verskil in ag geneem is. Die WVK as 'n gebeurtenis is ge'lnspireer deur die ideaal van geregtigheid. Die waarde van die WVK as 'n manifestasie van die etiese interseksie is die diepgaande effek wat dit op ons interpretasie van gelykheid kan he deur die beperkings van die teenswoordige substantiewe benadering uit te wys. Contents ... landscapes of democracy, equality and justice ... 1 Of patchwork and sauces .. .4 Landscape as image ... 10 The various authors and the dilemma of (re)presenting them, and the various sections ... 15 Defining the impossible: ethical, interpretation and equality ... 24 South African landscape - the "ethical" intersection of democracy, equality and justice ... 29 Smoke ... 31 1. ... visions of public space ... 37 Introduction ... 37 Liberal visions ... 55 Liberalism and gender ... 68 Antigone's daughters ... 69 An ethics of care and the standpoint of the concrete other ... 73 A rationalist vision: Reconstructing the "unfinished project" ... 77 Habermas and gender ... 87 Rethinking the private/public dichotomy ... 87 A critical reflection on critical theory ... 90 A "radical democratic" vision ... 95 Gender perspectives ... 107 A new conception of citizenship ... 107 The "doubly-prized world" ... 109 A "relational" approach to citizenship ... 116 Hannah Arendt's vision of public space ... 119 "All sorrows can be borne if you put them into a story or tell a story about them": Arendt's theory of action ... 122 Gender perspectives ... 133 Rahel Varnhagen's salon as public sphere ... 134 Agonistic feminism ... 141 Towards a heterogeneous public sphere ... 147 The public as "phantom" ... 149 Conclusion - democratic landscapes ... 151 2 . ... perspectives on equality ... 160 Introduction ... 160 "Poets as judges" ... 168 Towards an "ethical" reading: Perspectives on deconstruction ... 173 "The philosophy of the limit", the "ethical" and the ideal of community ... 173 What deconstruction is not ... 180 Deconstruction and the event ... 185 Deconstruction as a strategy of delay ... 189 The ongoing dialogue between deconstru'ction and hermeneutics ... 191 "We have it from Aristotle that life is hard" ... 194 "If anything is undeconstructable, it is justice" ... 196 The law, justice and legal interpretation: Deconstruction is justice ... 198 Back to the future: Legal interpretation as recollective imagination ... 201 Perspectives on the interpretation of rights (equality) ... 207 Equality as a "social right" ... 208 Rights in relationships ... 211 Rights as relationships ... 222 Republican constitutionalism ... 226 Equality: South African perspectives ... 235 The equality clause in the interim constitution and in the final constitution ... 236 Equality cases under the South African Constitution ... 243 President of the Republic of South Africa and another v Hugo ... 244 Is the majority in Hugo following an "instrumental aesthetic"? ... 247 Fraser v Children's Court of Pretoria North and others ... 250 Harksen v Lane ... 251 City Council of Pretoria v Walker ... 257 An ethical interpretation of equality and the TRC ... 264 Equality: A feminist/gender perspective ... 268 "Ethical" feminism ... 271 "Reconstructing sexual equality" ... 281 Conclusion - landscape of difference ... 285 3 .... landscapes of justice ... 291 Introduction: "landscape" as image, the ethical intersection and the TRC ... 291 Landscape of constitutional language - On bridges, roads and foundations ... 306 Theoretical landscapes ... 311 Rereading
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