The colour of law, power and knowledge : introducing critical race theory in (post-) apartheid South Africa

Abstract

Many legal scholars, practitioners and judges have overlooked the ways in which racial identities and hierarchies have been woven into social systems like law, labour, social power, knowledge and ideology. This article suggests that this oversight can be addressed by developing a post-apartheid critical race theory that puts ‘race’ back on the agenda by situating it within legal, political and social discourses. Such a critical race theory is proposed as an alternative to, and critique of, traditional (liberal/conservative) approaches to race and racism that emphasise individual autonomy, colour-blind constitutionalism and race-neutrality. Critical Race Theory (CRT) seeks to examine, from a legal perspective, the ways in which prevailing conceptions of race (and to some extent, culture and identity) perpetuate relations of domination, oppression and injustice. In South Africa, the necessity of such a critical engagement with race and law is justified by a long history of institutionalised white supremacy and white racial privilege which today coexists with ongoing (and lingering) forms of anti-black racism and racial exclusion. The starting point will be a broad discussion of competing approaches to race and racialism that inform equality jurisprudence and socio-political discourse followed by a theoretical discussion of the conceptual tools of US CRT and an analysis of post-1994 constitutional jurisprudence. The main aim is to problematise the contradictions and tensions that characterise South African equality jurisprudence and human rights discourses by exposing and critiquing the racial ideologies embedded in them. The broader concern of this article, however, is to point to the significance of critical race perspectives in South African legal and interdisciplinary thinking in a way that might disclose possibilities for racial justice and equality.