- J Flax ‘Postmodernism and Gender Relations in Feminist Theory’ in LJ Nicholson (ed) Feminism/Postmodernism (1990) 57.
- P Lenta ‘Just Gaming? The Case for Postmodernism in South African Legal Theory’ (2001) 17 SAJHR 173, 197. Lenta proposes a ‘transitional jurisprudence’ which is not a comprehensive theory of law-in-transition, but rather a mode of reading and understanding existing texts to trigger politically transformative possibilities in South Africa. He does this by outlining the transitions taking place in South Africa: from apartheid to post-apartheid, modern to postmodern and colonial to post-colonial respectively. It is, however, important for us to keep in mind that postmodernism itself should remain open to questioning. See S Ahmed Differences that Matter: Feminist Theory and Postmodernism (1998). In other words, we need to resist the process whereby postmodern theory comes to speak for (or as) others in the event of naming the place that they inhabit ie the ‘postmodern world’. The problem, for example, of placing feminism inside or outside postmodernism is determined by how postmodernism has constructed and authorised the relationship. More about this later.
- See A Lorde Sister Outsider (1984) 37–8. The question is whether feminists and other marginal legal theorists have the power necessary to construct the debate in their own terms. If the jurisprudential enterprise is loaded towards masculinist concepts and male interests, then the construction of a feminist jurisprudence would be in Lorde's famous phrase, a futile attempt to destroy the master's house with the master's tools.
- R West Caring for Justice (1997). See also R West ‘Jurisprudence and Gender’ (1988) 55 Univ Chicago LR 1 and R West Narrative, Authority and Law (1993).
- MJ Frug Postmodern Legal Feminism (1992).
- See K Van Marle Towards an Ethical Interpretation of Equality LLD thesis, Unisa (1999); K Van Marle ‘An “Ethical” Interpretation of Equality and the Truth and Reconciliation Commission’ (2000) 33 De Iure 248 and K Van Marle ‘Equality; An Ethical Interpretation’ (2000) 63 THRHR 595.
- D Cornell Transformations: Recollective Imagination and Sexual Difference (1993); D Cornell At the Heart of Freedom: Feminism, Sex and Equality (1998) and D Cornell Just Cause: Freedom, Identity and Rights (2000).
- Descartes, often called the father of modern philosophy, was born in Touraine in 1596. Educated in a Jesuit college, he was extremely impressed by the certainty and precision of mathematics as contrasted to the vagueness of philosophy. Descartes, like Francis Bacon, believed it is necessary to destroy much received opinion and start again. Descartes also believed that the senses are inferior to reason. He therefore sought to provide a secure foundation for reason, independent of tradition, custom, and the vagueness of sensory experience. This new basis was to be man's own reason and only those truths which he could know through his own powers. See in general R Descartes (DA Cress trans) Meditations on First Philosophy 1980 [1641].
- See for example I Kant (TM Green & HH Hudson trans) Religion Within the Limits of Reason Alone (1960).
- F Nietzsche ‘The Gay Science’ (1882) Section III in RJ Hollingdale (ed & trans) A Nietzsche Reader (1977) 61.
- In analysing and attempting to answer these complex questions, S Benhabib ‘Sexual Difference and Collective Identities: The New Global Constellation’ in S James & S Palmer (eds) Visible Women: Essays on Feminist Legal Theory and Political Philosophy (2002) 137 suggests a narrative model of subjectivity that I find exciting and full of possibilities. Her contention is that the narrative model has the virtue of accounting for the ‘surfeit of meaning, creativity and spontaneity’ that is used to accompany iteration in Judith Butler's performativity model as well as those models which cannot actually be explained by performativity. See J Butler Excitable Speech: A Politics of the Performative (1997).
- N Lacey ‘Violence, Ethics and Law: Feminist Reflections on a Familiar Dilemma’ in James & Palmer (note 11 above) 117 identifies within the broad thinking of postmodernism the emergence of what we might loosely call ‘postmodern ethics’. Law's violence and its ethical limits and possibilities have provided a productive enquiry in socio-legal theory. Yet the sense of the ethical here appears to differ from the traditional debates in ancient or modern natural traditions. These latter debates centre around what is ‘good’, ‘right’, or ‘desirable’ and the new debates focus on the ethical as ‘open’ and ‘beyond’. Another feature of this recent literature is the tendency to associate the ethical or just with the feminine or sexual difference. Given the persuasive feminist interpretation of the law's masculinity, and the fact that both ethics and justice are defined by contrasting them to law, the tendency to ‘feminise’ the ethical is understandable (although this view was critically interrogated by Anel Boschoff and David Taylor at the Law Teachers Conference held at Rhodes University in January of this year). This comment ties up with the postmodern conception of the ethical as open or beyond. This reflects the Lacanian argument that the jouissance of woman escapes representation in language and hence symbolises that which lies beyond violence and difference-repressing institutionalisation. See Lacey (this note) 119. For examples of writing on ethical postmodernism see C Douzinas; R Warrington & S McVeigh Postmodern Jurisprudence: The Law of Texts in the Texts of Law (1991). Douzinas; Warrington & McVeigh's interpretation of ethics is drawn from E Levinas (A Lingis trans) Otherwise Than Being or Beyond Essence (1981) and hence explores the responsibilities generated by radical alterity.
- Benhabib (note 11 above) 137 (my emphasis).
- Lenta (note 2 above) 206–08.
- Ibid 187. See also M Foucault (C Gordon trans & ed) Power/Knowledge: Selected Interviews and Other Writings (1980).
- See E Levinas (A Lingis (trans) Totality and Infinity: An Essay on Exteriority (1969); E Levinas Otherwise than Being or Beyond Essence (1991) and E Levinas ‘The Rights of Man and the Rights of the Other’ in MB Smith trans Outside the Subject (1993). Levinas defends a theory of alterity whereby we are continually expected to hear the call of the Other and to respond to such call even though it remains impossible to respond adequately.
- Lenta (note 2 above) 207.
- See J Derrida ‘Force of Law: The Mystical Foundations of Authority’ in D Cornell; M Rosenfeld & D Carlson (eds) Deconstruction and the Possibility of Justice (1992) 3.
- A Fagan ‘Delivering Positivism from Evil’ in D Dyzenhaus (ed) Recrafting the Rule of Law: The Limits of Legal Order (1999) 81.
- D Cornell The Philosophy of the Limit (1992) 115.
- See, for example, D Davis ‘Duncan Kennedy's Critique of Adjudication: A Challenge to the Business as Usual Approach of South African Lawyers’ (2000) 117 SALJ 697.
- Judith Butler has warned that we should not lump the work of Michel Foucault, Jean-Francois Lyotard and Jacques Derrida together as if they all present the same philosophical tradition. Nevertheless, each of these thinkers, in different ways, contributes to the set of cultural sensibilities that were associated with the term postmodernism in the 1980s. See J Butler ‘Contingent Foundations: Feminism and the Question of “Postmodernism”’ in J Butler & JW Scott (eds) Feminists Theorize the Political (1992) 1.
- For example, feminists writing from the Marxist and socialist traditions such as Catherine MacKinnon stress the interaction between the economic and political positions of women and class and focus upon the demands made of women by the social structure. Black feminists such as Patricia Williams ask for a more multi-layered analysis that seeks to uncover the variety of systems which position and oppress black women in particular. See generally CA MacKinnon Feminism Unmodified: Discourses on Life and Law (1987) and P Williams The Alchemy of Race and Rights (1991).
- W Morrison Jurisprudence: from the Greeks to Post-Modernism (1997) 480.
- West Caring for Justice (note 4 above) 4. All references to West below are references of this work as cited.
- Ibid 5 (emphasis in original).
- Ibid.
- Ibid 6.
- Ibid.
- Ibid
- Ibid.
- Ibid 7.
- C Gilligan In a Different Voice (1982).
- West (note 4 above) 7.
- Ibid 8.
- Ibid 20–1.
- Frug (note 5 above) 33.
- Ibid 33ff.
- Ibid 36.
- Ibid.
- See J Butler ‘Gender Trouble, Feminist Theory, and Psychoanalytic Discourse’ in Nicholson (ed) (note 1 above) 324, In this article Butler poses the crucial question as to whether feminist theory needs to rely on a notion of what it is fundamentally or distinctively to be a ‘woman’ in order to be politically effective in their demands for social and legal transformation. She maintains that the loss of the reification of gender relations should be welcomed and ought not to be lamented as a failure of a feminist political or legal theory. The loss of gender should rather be affirmed as the promise of new, more fluid possibilities. Ibid 339.
- Frug (note 5 above) 35–6.
- Drawing on Carol Gilligan's work, feminist legal theorists have noted the marginalisation of relational reasoning in deductive legal reasoning; the cultural celebration of the ‘sharpness’ and the ‘rigour’ of analytic, deductive reasoning in both legal practice and legal education; the cultural inferiority of the ‘feminine voice’ in moral reasoning and its silencing in law; the marginalisation of emotion, commitment, relationship and the interpretation of anything approaching an ‘ethic of care’ as impossible or difficult to articulate in law. This strand of analysis has generated years of debate about the feminine voice in adjudication and legislation as well as a controversy about whether Gilligan's gender-association is essentialist. But whatever one's view of the general adequacy of Gilligan's approach, there is no doubt that her argument has been of great importance in pointing out features of legal reasoning which may have exclusionary effects along a number of different lines. See Lacey (note 12 above) 124–25.
- Frug (note 5 above) 37.
- Ibid 48.
- In light hereof one could place West within this group of conservative readers.
- Frug (note 5 above) 49.
- Ibid 125ff.
- Ibid 126.
- N Fraser & LJ Nicholson ‘Social Criticism Without Philosophy: An Encounter Between Feminism and Postmodernism’ in Nicholson (ed) (note 1 above) 19.
- Ibid.
- Ibid 20.
- Ibid.
- Ibid 35.
- Ibid.
- See IM Young ‘The Ideal of Community and the Politics of Difference’ in Nicholson (ed) (note 1 above) 301.
- Ibid.
- A Hunt ‘The Big Fear: Law Confronts Postmodernism’ (1990) 35 McGill LJ 507, 520.
- K Van Marle ‘South African Public Life in a New Millenium. Reflections from the Past’ (2000) 33 De Iure 121; K Van Marle ‘Some Perspectives on Sex, Gender, Difference and Equality’ (2000) 15 SAPL 461.
- See the work of Cornell in general (note 7 above).
- Van Marle SAPL (note 59 above) 461.
- Ibid 465.
- Ibid.
- See D Landry & G MacLean (eds) The Spivak Reader (1996) 5.
- Derrida (note 18 above) 23.
- See Van Marle THRHR (note 6 above) generally.
- Note 6 above.
- See C Albertyn & J Kentridge ‘Introducing the Right to Equality in the Interim Constitution’ (1994) 10 SAJHR 149 and C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248. A commitment to substantive equality requires judges to consider the historical and social circumstances of disadvantaged groups when deciding equality issues. Van Marle (2000) De Iure (note 6 above) argues generally that this test for equality further institutionalises the right to equality and does not go far enough in recognising the needs of concrete individuals faced with unfair discrimination. An example of the difference between the substantive and ethical interpretations of equality can be illustrated by critically analysing the decision in President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC). The social and historical disadvantages faced by women would be the focus of the substantive approach and the relationship between Hugo and his son would be the focus of the ethical approach.
- M Davies ‘Derrida and Law: Legitimate Fictions’ in T Cohen (ed) Jacques Derrida and the Humanities: A Critical Reader (2001) 213.
- See C Douzinas The End of Human Rights (2000).
- Van Marle THRHR (note 6 above) 606–07.
- Benhabib (note 11 above) 152 distinguishes between what she calls the ‘concrete’ (or situated) other and the ‘generalised’ other.
- Derrida (note 18 above) 23.
South African Journal on Human Rights
Volume 18, 2002 - Issue 4