Contemplating a post-apartheid feminist jurisprudence

Abstract

This dissertation involves contemplations and reflections on a post-apartheid feminist jurisprudence. My contemplation of a feminist jurisprudence takes place within the broader search for a post-apartheid jurisprudence. Post-apartheid jurisprudence provides a critical context for the contemplation. Within this research I illustrate the existence of a masculine symbolic order in South Africa. I suggest that this order contributes to the marginalisation of women and as such problematisation of this order is required. I submit within this dissertation that although the post-apartheid jurisprudential context may be described as critical, challenge to the masculine symbolic order has not been sufficient. From this perspective, I consider the possibility of a post-apartheid feminist jurisprudence. The reflections on a feminist jurisprudence depart from ethical feminism as originally formulated by Drucilla Cornell. The heterogeneity and plurality of the South African society requires an approach that is sensitive to difference and diversity. Ethical feminism seeks to address marginality and the masculine symbolic order by making use of critical and deconstructive insights. It suggests a way of interpreting 'the feminine' as a means of bringing about transformation and openness to difference. I submit within this research that ethical feminism as an approach is suitable to the South African context and that it may contribute to post-apartheid jurisprudence's critical search for approaches to law. Ethical feminism suggests using the feminine affirmatively and allegorically. Along these lines I explore certain myths and narratives, amongst them, retellings of the Greek myths of Ariadne and Penelope, the testimony of a mother before the Truth and Reconciliation Commission and William Shakespeare's character Ophelia. In attempting an interpretation of the feminine, I explore the theme of 'refusal'. Refusal discloses new possibilities, options and alternatives. It also signifies a feminist jurisprudence that is continuous, transformative and unafraid of embracing uncertainty and humility.