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.
