Land and the limits of liberal legalism: property, transitional justice and non-reformist reforms in post-apartheid South Africa

SUMMARY

Critical scholarship on transitional justice, in Africa and globally, has drawn attention both to limits of liberalism and legalism (such as inattention to structural injustices) and to normatively more expansive – transformative, and even revolutionary – approaches to justice. Focusing particularly on South Africa, this debate piece considers the roles of liberal property relations and conceptions of the rule of law in producing and maintaining injustices related to land and property in (post-)transitional societies in Africa and beyond. Moreover, the extent to which transitional justice might contribute to revolutionary aspirations of overcoming capitalist social and economic relations (as espoused, at least rhetorically, by liberation movements throughout Africa) is considered. It is suggested that while this is unlikely, non-reformist reforms offer one avenue by which more expansive (transformative or revolutionary) goals might be pursued, in part, in and through transitional justice.

Acknowledgements

Thanks must go to the editors and reviewers as well to all the colleagues who provided useful comments at a work-in-progress workshop in June 2021, particularly Eric Hoddy, Anna Reading, Amanda Cahill-Ripley and Dáire McGill.

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This article has been republished with minor changes. These changes do not affect the academic content of the article.

Notes

1 For instance, Moyo (2015, 82) argues that Zimbabwe might exemplify ‘the perils of a land reform process which is not rights based’, while also having been in some ways successful, at least ‘in terms of transferring agricultural land from a white minority to the black majority’ and in addressing some inequalities (Moyo 2015, 86). She further argues that while ‘the rights violations which characterized Zimbabwe’s land redistribution programme make it a difficult precedent to locate within the transitional justice field’, redistribution (including of land) should nevertheless be ‘included within the ambit’ of transitional justice (Moyo 2015, 89).

2 Sharp (2019, 578) refers to social democratic transitional justice as making use of ‘a concept called “liberal localism” in an attempt to strike a better balance between state-led and community-driven modalities, Western and “traditional” approaches to justice, and legal and political frameworks for changemaking’. However, social democracy has been used to refer to a wide range of (at times contradictory) positions in different contexts. Some of these notions are likely to be compatible with maintaining (perhaps actively reinforcing) the liberal order of property relations, whereas other uses of the term suggest something much closer to a revolutionary restructuring of society and economy (see e.g. Marx Memorial Library 2020).

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Notes on contributors

Matthew Evans

Matthew Evans is a senior lecturer in law, politics and sociology at the University of Sussex, Brighton, UK, and a visiting researcher in political studies at the University of the Witwatersrand, Johannesburg, South Africa. He is the author of Transformative justice: remedying human rights violations beyond transition (Routledge, 2018) and editor of Transitional and transformative justice: critical and international perspectives (Routledge, 2019).