Abstract
This chapter explores how inequality and rights violations are legitimated and discursively organised by the prevailing discourses on Human Rights and Transformative Constitutionalism (HR&TC). Our case example is post-1994 South Africa, focusing on the notions of HR&TC as idolatry that generate a fictitious narrative of inclusive socio-economic and cultural-political progress in the ‘aftermath’ of apartheid, but we also extend our argument to the global human rights discourse. This narrative, into which HRE is hooked, produces a phantasmal ‘reality’. It follows, so we argue, that mainstream HRE does not have the praxes-related resources to escape the logic of neoliberal pedagogies and thus does not work against the economisation of rights and its conversion into capital rights. Consistent with our overarching project on CHRE, we suggest critique as a strategy to work against idolatry for HRE to contribute to developing antidotes to the phantasmagoria.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See epilogue of the Interim Constitution (Act 200 of 1993). The salutation of the Promotion of National Unity and Reconciliation Act (no 34 of 1995) states:
[…] the Constitution of the Republic of South Africa (Act 200 of 1993), provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence for all South Africans, irrespective of colour, race, class, belief or sex; [...] it is deemed necessary to establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in future; [...] the Constitution states that the pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society; [...] the Constitution states that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation; [...].
The preamble of the final Constitution (Act 108 of 1996 which commenced on 4 February 1997) reads as follows:
[...] We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to: heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; improve the quality of life of all citizens and free the potential of each person; and build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
- 2.
As it is pointed out:
The notion of a bill of rights for South Africa can be traced back to an ANC document from the early 1920s. The Freedom Charter of 1955 carried the idea forward. In the following decades, the idea of an entrenched bill of rights received support from liberal academics and judges. The question of who would enforce it, however, was left open. This void was debated at a conference organised by the Constitutional Committee of the ANC in 1991. What emerged was a commitment to a Constitutional Court in a hybrid continental form, similar to that of Germany: able to hear cases by direct access, as well as by referral and on appeal.
[http://www.constitutionalcourt.org.za/site/thecourt/history.htm, accessed on 12 October 2018].
- 3.
Regarding the work of the TRC:
The work of the TRC was accomplished through three committees: Human Rights Violations (HRV) Committee investigated human rights abuses that took place between 1960 and 1994. Reparation and Rehabilitation (R&R) Committee was charged with restoring victims’ dignity and formulating proposals to assist with rehabilitation. Amnesty Committee (AC) considered applications for amnesty that were requested in accordance with the provisions of the Act. In theory the commission was empowered to grant amnesty to those charged with atrocities during Apartheid as long as two conditions were met: The crimes were politically motivated, and the whole truth was told by the person seeking amnesty. No one was exempt from being charged. Even ordinary citizens, members of the police could be charged and, most notably, members of the African National Congress, the ruling party at the time of the trial, could also be charged. Out of a total of 7112 petitioners, 5392 people were refused amnesty, and 849 were granted amnesty (there were a number of additional categories, such as withdrawn). The commission brought forth many witnesses giving testimony about the secret and immoral acts committed by the Apartheid Government, the liberation forces including the ANC, and other forces for violence that many say would not have come out into the open otherwise. On October 28, 1998 the Commission presented its report, which condemned both sides for committing atrocities. [https://www.sahistory.org.za/article/truth-and-reconciliation-commission-trc-0, accessed on 15 October 2018].
- 4.
See TRC final report (n.d.):
Reconciliation is a process which is never-ending, is costly and often painful. For this process to develop, it is imperative that democracy and a human rights culture be consolidated. Reconciliation is centred on the call for a more decent, more caring and more just society. It is up to each individual to respond by committing ourselves to concrete ways of easing the burden of the oppressed and empowering the poor to play their rightful part as citizens of South Africa.
- 5.
As Zajda and Ozdowski (2016, p. 103) explain:
The ‘State Institutions Supporting Constitutional Democracy’ – known as the Chapter 9 Institutions, after their place in the Constitution – consist of the Public Protector (PP), the Auditor General (AG), the Electoral Commission (IEC), the South African Human Rights Commission (SAHRC), the Commission for Gender Equality (CGE), and lastly, the Commission for the Protection of the Rights of Cultural, Religious and Linguistic Communities. These institutions are independent of government, subject only to the Constitution and the law, and report annually to Parliament.
- 6.
A revived language of liberal democracy became increasingly prevalent in the mid-1980s, and was accentuated by the demise of the former Soviet Bloc and the rise of ethno-nationalist conflict in the Balkans. Since 1990, nearly all transitions from authoritarian rule have adopted the language of human rights and the political model of constitutionalism, especially in Latin America and the new states of Eastern Europe. The end of the Cold War and the threat of irredentist nationalism led many intellectuals in Europe from a variety of political traditions to promote human rights and a return to the Enlightenment project.
- 7.
As Madlingozi (2017, p. 149) writes: “Post-1994 fetishisation of human rights accords with the deification of the Constitution. This deification is seen in the way the Constitution is often evoked and invoked as the ‘best constitution in the world.’”
- 8.
Transitional justice is understood here as
a response to systematic or widespread violations of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades. [https://www.ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf accessed on 17 October 2018].
- 9.
The Abahlali baseMjondolo (Shack Dwellers) movement
began in Durban, South Africa, in early 2005. Although it is overwhelmingly located in and around the large port city of Durban it is, in terms of the numbers of people mobilised, the largest organisation of the militant poor in post-apartheid South Africa. Its originary event was a road blockade organised from the Kennedy Road settlement in protest at the sale, to a local industrialist, of a piece of nearby land long promised by the local municipal councillor to shack dwellers for housing’. [http://abahlali.org/a-short-history-of-abahlali-basemjondolo-the-durban-shack-dwellers-movement/ accessed on 26 October 2018].
References
Baxi, U. (2006). The future of human rights. Oxford, UK: Oxford University Press.
Baxi, U. (2008, April 27–29). Preliminary notes on transformative constitutionalism. Paper presented at the BISA conference on Courting Justice II, New Delhi, India.
Bell Jr., D. A. (1980). Brown v. Board of Education and the interest-convergence dilemma. Harvard Law Review, 93(3), 518–533.
Blaettler, C. (2012). Phantasmagoria: A profane phenomenon as a critical alternative to the fetish. Image & Narrative, 13(1), 32–47.
Bond, P. (2000). The elite transition: From apartheid to neoliberalism in South Africa. London: Pluto Press.
Bond, P. (2018, February 27). Cyril Ramaphosa relaunches neo-liberalism. ZNET. Retrieved from https://zcomm.org/znetarticle/cyril-ramaphosa-relaunches-neo-liberalism/
Brown, W. (2005). Edgework: Critical essays on knowledge and politics. Princeton, NJ: Princeton University Press.
Brown, W. (2015). Undoing the demos: Neoliberalism’s stealth revolution. New York: Zone Books.
Christiansen, E. (2010). Transformative constitutionalism in South Africa: Creative uses of constitutional court authority to advance substantive justice. Journal of Gender, Race and Justice, 13, 575–614.
Cornish-Jenkins, H. (2015). Despite the 1994 political victory against apartheid, its economic legacy persists. South African History Online. Retrieved from https://www.sahistory.org.za/article/despite-1994-political-victory-against-apartheid-its-economic-legacy-persists-haydn-cornish-
Cruz, K., & Brown, W. (2016). Feminism, law, and neoliberalism: An interview and discussion with Wendy Brown. Feminist Legal Studies, 24(1), 69–89.
Davis, D. M., & Klare, K. E. (2010). Transformative constitutionalism and the common and customary law. South African Journal on Human Rights, 26(3), 403–509.
Dean, J. (2009). Democracy and other neoliberal fantasies: Communicative capitalism and other left politics. Durham, NC: Duke University Press.
Derrida, J. (1994). Specters of Marx: The state of the debt, the work of mourning and the new international. New York: Routledge.
Ebrahim, H., & Miller, L. E. (2010). Creating the birth certificate of a new South Africa. In L. E. Miller & L. Aucion (Eds.), Framing the state in times of transition: Case studies in constitution making. Washington, DC: United States Institute of Peace Press.
Gündoğdu, A. (2015). Rightlessness in an age of rights: Hannah Arendt and the contemporary struggle of migrants. Oxford, UK: Oxford University Press.
Hailbronner, M. (2017). Transformative constitutionalism: Not only in the global south. American Journal of Comparative Law, 65(3), 527–565.
Ignatieff, M. (2000, April 4–7). Human rights as idolatry (The Tanner lecture on human values). Princeton University.
Khoja-Moojli, S. (2014). Producing neoliberal citizens: Critical reflections on human rights education in Pakistan. Gender and Education, 26(2), 103–118.
Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14, 146–188.
Koelble, T. (2003). Building a new nation: Solidarity, democracy and nationhood. In D. Chidester, P. Dexter, & W. James (Eds.), What holds us together: Social cohesion in South Africa (pp. 143–172). Cape Town, South Africa: HSRC Press.
Liebenberg, S. (2010). Socio-economic rights. Adjudication under a transformative constitution. Claremont, CA: Juta.
Madlingozi, T. (2003, September 5–7). The significance of critical legal studies’ rights critique for Africa: Exposing the dangers and limitations of the human rights discourse. Paper presented at the Critical Legal Conference, Johannesburg, South Africa.
Madlingozi, T. (2007). Post-apartheid social movements and the quest for the elusive ‘new’ South Africa. Journal of Law and Society, 34(1), 77–98.
Madlingozi, T. (2010). On transitional justice entrepreneurs and the production of victims. Journal of Human Rights Practice, 2(2), 208–228.
Madlingozi, T. (2014). There is no ‘outside the law’: How can social movement use the law to bring about social change [Web log comment]. Retrieved from http://thinkingafricangos.blogspot.com/2014/05/there-is-no-outside-law-how-can-social.html
Madlingozi, T. (2016). On settler colonialism and post-conquest constitutionness: The decolonising constitutional vision of African nationalists of Azania/South Africa [Drat paper]. Retrieved from http://www.academia.edu/33747352/On_Settler_Colonialism_and_Post-Conquest_Constitutionness_The_Decolonising_Constitutional_Vision_of_African_Nationalists_of_Azania_South_Africa
Madlingozi, T. (2017). Social justice in a time of neo-apartheid constitutionalism: Critiquing the anti-black economy of recognition, incorporation and distribution. Stellenbosch Law Review, 28(1), 123–147.
Martel, J. R. (2011). Textual conspiracies: Walter Benjamin, idolatry, and political theory. Ann Arbor, MI: The University of Michigan Press.
Marx, K. (1887). Capital: A critique of political economy. Moscow, Russia: Progress Publishers.
Mignolo, W. (2006). Introduction to double critique: Knowledges and scholars at risk in post-Soviet societies. South Atlantic Quarterly, 105(3), 479–500.
Neocosmos, M. (2006). Can a human rights culture enable emancipation? Clearing the theoretical ground for the renewal of a critical sociology. South African Review of Sociology, 37(2), 356–378.
Paipais, V. (2014). Between politics and the political: Reading Hans. J. Morgenthau’s double critique of depoliticisation. Millenium: Journal of International Studies, 42(2), 354–375.
Rafudeen, A. (2016). A South African reflection on the nature of human rights. African Human Rights Law Journal, 16, 225–246.
Ramose, M.B. (2001). An African perspective on justice and race. Polylog: Forum for Intercultural Philosophy, 3. Retrieved from http://them.polylog.org/3/frm-en.htm#s7
Rebughini, P. (2018). Critical agency and the future of critique. Current Sociology, 66(1), 3–19.
Schutte, G. (2017, May 25). Masses shackled by neoliberalism. IOL. Retrieved from https://www.iol.co.za/pretoria-news/masses-shackled-by-neoliberalism-9339621
Simmonds, S., & Du Preez, P. (2017). Discourses shaping human rights education research in South Africa: Future considerations. South African Journal of Higher Education, 31(6), 9–24.
Smith, S. D. (1993). Idolatry in constitutional interpretation. Virginia Law Review, 79(3), 583–631.
Van Marle, K. (2007). The spectacle of post-apartheid constitutionalism. Griffith Law Review, 16(2), 411–429.
Van Marle, K. (2009). Transformative constitutionalism as/and critique. Stellenbosch Law Review, 20(2), 286–301.
Williams, J. A. (2009). Unholy matrimony? Feminism, orientalism, and the possibility of double critique. Signs, 34(3), 611–632.
Wilson, R. A. (2001). The politics of truth and reconciliation in South Africa: Legitimising the post-apartheid state. Cambridge, UK: Cambridge University Press.
Zajda, J., & Ozdowski, S. (2016). Globalisation, human rights education and reforms. Dordrecht, The Netherlands: Springer.
Zembylas, M., & Keet, A. (2018). Entanglements and regenerations: Critical human rights, citizenship and democracy education. London: Bloomsbury.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Zembylas, M., Keet, A. (2019). Capital Rights: Human Rights Education and Neoliberal Pedagogies. In: Critical Human Rights Education. Contemporary Philosophies and Theories in Education, vol 13. Springer, Cham. https://doi.org/10.1007/978-3-030-27198-5_5
Download citation
DOI: https://doi.org/10.1007/978-3-030-27198-5_5
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-27197-8
Online ISBN: 978-3-030-27198-5
eBook Packages: EducationEducation (R0)