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Current Projects, Research, Conferences and Publications

Equality, Law and Transformation

This project seeks to identify ideas of equality in our past and present, and investigate the extent to which they are reflected in the Constitution and law. The research considers what idea of equality best reflects the transformative aspirations of the Constitution, and might frame ‘transformative’ social and economic policy and law. Much of the work on equality, socio-economic rights and the Constitution more broadly, has been within a liberal egalitarian perspective, with considerable reliance on the work of Dworkin, Rawls and Nussbaum. Indeed, the dignity-based jurisprudence of the Constitutional Court fits within this philosophical approach. Critical analysis has largely drawn on the work of Nancy Fraser to consider the recognition and/or distributive aspects of equality, as well as the links between them. Building on these ideas, this project seeks to develop these understandings of equality within more localised or ‘indigenous’ and multi-dimensional ideas of equality. Overall this theme seeks to establish a framework for understanding equality in a South African setting – in its different iterations – that will contribute to public and academic debate about the role of the Constitution and law, and the policy choices that might be made within different understandings of equality.

Publications

C Albertyn ‘Contested substantive equality in the South African Constitution: beyond social inclusion towards systemic justice’ (2018) 34 South African Journal on Human Rights 441- 468. DOI: 10.1080/02587203.2018.1550938

(IN)EQUALITY AND CONSTITUTION(ALISM)S – the political economy of Constitutions

The South African Constitution 

Do constitutions in general, and the South African Constitution in particular, constrain or empower government, courts and citizens as they seek to address systemic social and economic inequalities?  This question requires careful debate and admits of different answers. Some argue that from a radical, decolonial and/or Africanist view that the Constitution is so tainted by a weak political settlement and western norms that the only way forward is to start again. Others suggest that the South Africa Constitution echoes too much ‘liberal democracy’ (and thus liberal capitalism) of the West without taking account of the specificities of (South) Africa, and the need for ‘radical innovation’ to address the legacy of socio-economic inequalities. A third group accepts the Constitution as an important anti-colonial achievement, expressing common, if contested, values and important advances and a strong institutional infrastructure, but – to a greater or lesser degree – is concerned about how the Constitution is interpreted and used to achieve transformative ends. In different ways, these groups engage the role of the Constitution in meaningful socio-economic transformation and how it might be interpreted, amended or improved to enhance South Africa’s ability to address social and economic inequalities. The research in this project embraces a broad variety of perspectives in discussing what it means to be ‘transformative’ and/or ‘decolonial’, as well as the role of constitutions, and the political systems and laws they mandate, in achieving equality and justice.

Publications

C Albertyn ‘Constitutions and (In)equality’ Plenary paper at the Inaugural Conference of the Southern Centre for Inequality Studies, University of the Witwatersrand, 3-5 September 2018.
C Albertyn ‘Inequality and the South African Constitution’ 2019 Development Southern Africa DOI: 10.1080/0376835X.2019.1660860

Constitutions of the Global South and inequalities

This research project develops the above work on the South African Constitution to interrogate the constitutions of the Global South. 

Publications

C Albertyn ‘Constitutions of the Global South and Inequality’ Presentation at the International Symposium of the Southern Centre for Inequality Studies, University of the Witwatersrand,10-11 April 2019.

Seminar Series on Inequality, Law and Public Policy

Inequality is one the most pressing issues in the Global North and South, and could become even more extreme as the effects of climate change, COVID-19, disruptive technologies associated with machine learning, and so on, develop and persist. These inequalities expose the vast gap between the egalitarian norms of constitutional democracies and the reality of people’s lives. Until recently, inequality (as opposed to poverty) has received surprisingly little attention in the academy, public policy debate and in political discourse in South Africa. This is particularly the case in law, where engagement with inequality is often confined to a handful of public lawyers. Even here, however, there is often a limited questioning of the background concepts and institutions of public and private law, emerging from ideas of liberalism that assume that inequality is inevitable.

 

Constitutional scholars committed to more egalitarian outcomes in South Africa have laboured with concepts like universal, individual rights and sought to reconstruct these rights in line with more transformative outcomes, thus seeking more transformative readings of the Constitution. But this project, while necessary, was never a sufficient basis for eradicating inequalities. The constitutionalisation of rights, alone, can never fully nor adequately address material inequalities. We need a clearer understanding of the role and limits of law in addressing deep structural inequalities. We also need to engage multiple economic and social policy processes and their relationship with law and the Constitution. To a large extent law-making and economic/social policy-making have followed parallel processes. In our view, scholars with different expertise and insights – including lawyers, social scientists, economists, scientists and philosophers - and from different jurisdictions have to work together and across disciplinary boundaries in order to consider the challenge of rising inequality holistically, and to contribute meaningfully to public discussion, policy development and legal reform

 

In partnership with the Mandela Institute, Wits School of Law and the Wits Southern Centre for Inequality Studies, this seminar series aims to foster public seminars and exchanges between South African and global scholars on these issues.

 

COVID-19, INEQUALITIES AND HUMAN RIGHTS – CONFERENCE AND SPECIAL EDITION OF SAJHR

 

Call For Abstracts For Conference And Special Edition Of SAJHR

 

The Covid-19 pandemic has altered life as we know it. South Africa has been widely praised for its decisive early action in declaring a state of disaster and instituting a national lock-down to flatten its infection curve, avoid deaths and a devastating burden on our health-system and buy time to track, test and contain the pandemic. Yet, from the outset, it was clear that the trade-off between public health and the economy was to have profound, and deeply racialised and gendered, consequences: deepening hunger and poverty, loss of livelihoods, evictions, increased security force abuse and heightened domestic violence, are some of the reported symptoms. Across the country, our centuries-long legacy of deep and systemic, racialised and gendered, inequality and poverty shapes the pattern of the pandemic and its effects.

 

In partnership with the South African Journal on Human Rights (SAJHR), the SARChI Research Chair in Equality, Law and Social Justice, has invited Expressions of Interest for participation in a (virtual) conference and special edition of the SAJHR on ‘The Covid-19 Pandemic, Inequality and Human Rights in South Africa’ to be published n 2021.

 

Gender Equality, Rights and Law

Revised edition: Gender, Law and Justice

Published in 2007, the first edition of Gender, Law and Justice captured the changes in law for South African women in the first decade or so of democracy. For its second edition, the SARChI chair, working with renowned feminist legal scholar, Elsje Bonthuys, is co-ordinating a research project to analyse the sometimes far-reaching, sometimes insignificant social, economic and legal changes in the intervening eleven years, as well as to make new suggestions for interpreting and developing the law.

As more widely developed in the Chair’s project on Equality, Law and Transformation, the past twenty years capture a particular period of South African law, in which the values and rights entrenched in the Constitution, including gender equality and non-sexism, have guided policy and legislative change. Although contested, the dominant interpretations have been of a liberal egalitarian ilk, favouring inclusive over more transformative interpretations. Although these have won significant gains for women, they are also limited – a fact that has been further emphasized by the contemporary focus on the continued effects of colonialism and patriarchy. Indeed, a degree of cynicism over the possibilities of legal change may have replaced the initial optimism about the ability of law to contribute to socio-economic and symbolic transformation. We hope to develop the book along these contested lines, demonstrating the value of legal change, but exposing the limits, as well as the possibilities of more transformative or even radical directions. In the true spirit of feminist work, we will both consider the law as it is, as well as the law as it ought to be. 

Proposed publication date: 2021

Rights and Reproductive Justice

Building on earlier work on abortion and reproductive rights, this research engages in the critical analysis of abortion law and reproductive rights to explore the possibilities of transformative approaches to reproductive autonomy and substantive equality. Initial research uses South Africa as a case study to explore, jurisprudentially, how to move beyond more dominant international public health and equality arguments on abortion to re-centre a positive and substantive idea of women’s reproductive autonomy at the heart of a constellation of mutually reinforcing reproductive rights.

Publications
Rights, Institutions and Social Change

The Commission on Gender Equality and the courts

South Africa created a sophisticated set of structures within and outside of the state to advance gender equality, including Office of the Status of Women (now a Women’s Ministry), a Women’s Empowerment Unit, a Women’s Caucus in parliament, the Joint Monitoring Committee on the Quality of Life and the Status of Women, gender desks in  every state department at the national level as well as on provincial level and an autonomous Commission on Gender Equality (CGE). On paper this has been praised as a truly gendered democracy, institutionally structured for gender inclusiveness and equality. In practice, the story has often been different.

The SARChI Chair in Gender Politics at the University of Stellenbosch has established a Project on Feminist Institutionalism, which is investigating the development and role of the CGE since 1996. The SARChI Chair in Equality, Law and Social Justice is participating in this through analysing the footprint of the CGE in the courts. This considers the role of the CGE in court-based struggles for gender equality in the Constitutional Court, and what this tells us about the nature and role of law as a tool of social change. It also looks at the effects of these cases on the working, authority and legitimacy of the CGE as a Chapter Nine institution. This research will produce a  conference paper and contribute a chapter to a book on feminism and the state, publication date 2020. 

Publications

C Albertyn ‘ A feminist Footprint? The Commission for Gender Equality and the Courts’, paper presented at a conference on ‘Feminist Institutionalism: What Spaces left for Women in the South African State’ hosted by SARChI Chair in Gender Politics at the Stellenbosch Institute for Advanced Studies (STIAS), 26-27 July 2019.

 

Equality Courts 

This project is investigating the files, judgments and jurisprudence of selected Equality Courts in order to understand the nature of their protection and ways in which this can be expanded. The research is ongoing and a discussion paper is expected in mid 2020.

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