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The Justice of Crime Prevention

The Case of South Africa

Thaddeus Metz

The Kantian principle that persons must be treated with respect is the most widely accepted normative foundation of a constitutional democracy. Because the state must treat citizens as free and equal persons or in a way consistent with their dignity, it is obligated to abide by majority rule but to ensure that a constitution prevents a majority from violating minority rights to civil liberty and due process. My broad purpose in this article is to explore the implications of the principle of respect for criminal justice in South Africa.

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The Ariadne’s thread that runs through, and connects, the articles in this issue of Theoria is the modern state. How should the state approach welfare policy? Is the state’s power as absolute as once it had been? What is the importance of nationalism for states? What assumptions about the relationship between the state and civil society should be examined, and how? What, especially in a developing society such as South Africa, is—or should be—the relationship between the state and the poor? These are the overarching questions that knit together the contributions.

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Throwing the Genes

A Renewed Biological Imaginary of 'Race', Place and Identification

Zimitri Erasmus

In the United States of America, use of DNA samples in criminal investigation and of genetic ancestry tests in 'personalised medicine', 'pharmacogenetics' and for personal consumption has grown exponentially. Moreover, use of such technologies is visible in the public sphere. In South Africa, DNA sampling for ancestry testing is the most publicly visible application of these technologies. This work has shifted constructions of 'KhoiSan' communities from yesterday's 'missing evolutionary link' to today's 'Edenic origin of humankind'. I question human biogenetics as a home for meanings of history, humanity and belonging. To this end, I read selected genetic genealogical studies of communities considered 'KhoiSan', 'Coloured' and 'Lemba' in South Africa against concerns raised in recent literature about the use of such studies in the United States of America. I ask why bio-centric conceptions of 'race', identity and 'the human' remain so resilient. To grapple with this question, I draw on Sylvia Wynter's (2001; 2003) adaptation of Frantz Fanon's (1986) concept of 'sociogeny' into 'the sociogenic principle'. I close by suggesting the code for what it means to be human is best located in the 'word' rather than the human genome.

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Jérémie Barthas

‘No government can protect the rights of citizens without rigorous police, but the difference between a free regime and a tyrannical one is that, in the former, the police are employed against that minority opposed to the general good as well as against the abuse and negligence of the authorities; whereas, in the latter the State police are employed against the down-trodden who are thus delivered into the hands of injustice and impunity’.

This declaration was not a reaction to the Marikana massacre (16 August 2012), when a British mining company operating in South Africa had a special unit of the post-Apartheid South African Police Service murderously repress a mine workers strike, by means of mass shooting; many of those killed were later found to have been shot in the back as they ran away from the volley of bullets. It was made about two hundred and twenty years before, in April 1794, when revolutionary France was experiencing its most tragic moments. In the context of the Terror, and facing the necessity to discipline it, its author, Saint-Just (1767–1794), redeployed some of the most classical concepts in the History of Political Thought – freedom versus tyranny, general good versus particular interest, elite accountability versus impunity of power – in order to provide the ideological principles framing the organisation, within the web of the revolutionary police, of a special office in charge of the surveillance of the Executive and of public authorities.

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Patrick Lenta

My purpose in this paper is to assess the plausibility of three claims asserted by Wilhelm Verwoerd in his book Equity, Mercy, Forgiveness: Interpreting Amnesty within the South African Truth and Reconciliation Commission (2007) in support of the granting of amnesty by the South African Truth and Reconciliation Commission. Amnesty in this context refers to conditional amnesty: immunity from prosecution and punishment, conditional upon the full disclosure by perpetrators of the details of their wrongdoing, extended to individuals who had committed gross human rights violations between 1 May 1960 and 10 May 1994. Verwoerd rehearses several arguments that have previously been advanced in support of conditional amnesty, but his original contribution consists in asserting three claims concerning its moral status. These are that the granting of amnesty: (1) satisfies the demands of equity; (2) constitutes an act of mercy; and (3) amounts to forgiveness of perpetrators. I seek to show that, considered separately, each of these claims is false and that, asserted together, they are inconsistent.

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Penny Enslin

Like other major developments in political philosophy, John Rawls’s Political Liberalism (PL) has raised important issues for philosophy of education. Rawls’s defence of liberalism as a political doctrine whose principles do not depend on any one comprehensive moral or philosophical doctrine for their justification, against comprehensive liberalism, which by contrast expresses a particular conception of the good life, engages with current controversies in schooling policy in liberal democracies like the United States and the United Kingdom, and potentially in South Africa.2 In such societies there are groups which oppose what is seen as the tendency of liberal education, with its emphasis on the development of qualities like autonomy and individuality, to show intolerance towards particular ethnic, cultural or religious groups and to threaten their continued existence. Their objections appear to require a political rather than a comprehensive liberal approach to schooling.

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Picking up the relay baton

Translating traditions in apartheid and democratic South Africa

Andrea M. Lang

This article reflects the particular construction of 'Culture' by a network of ethnographers, bureaucrats, politicians, and traditional leaders in South Africa. It analyzes the impact of this specific understanding of Culture during the apartheid years and in the new democratic dispensation using actor network theory (ANT) as developed by Callon and Latour. The essay also explores the establishment of the network in colonial times, examines its working method during the apartheid years, and queries the reasons for its survival and restrengthening after the dismantling of apartheid. Furthermore, the article deals with the popularization of the network's Culture credo and discusses some consequences of this special understanding of Culture and of how the government should preserve it.

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Patrick Lenta

The following paper is a discussion of justice as a sign in transition, a sign whose meanings in post-apartheid South Africa must be legitimated by appeal to conditions radically different from those that prevailed under apartheid. I wish to explore the nature of the transformation of justice from the context of apartheid to emergent postapartheid conditions and to do so by focusing on the Truth and Reconciliation Commission (the TRC) as an example of what can be called ‘transitional justice’. A common view of the TRC is that its rules for the implementation of amnesty and other related matters should be evaluated in the light of ‘ideal types’ of justice. The TRC must fall short of such ideal types, since its offer of qualified amnesty to perpetrators of gross human rights violations in exchange for complete honesty about such violations will be understood as an exigency which dispenses with a crucial feature of justice, namely retribution.

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Beyond 'Democratic Consolidation'

An Alternative Understanding of Democratic Progress

Steven Friedman

For almost two decades, the survival prospects and authenticity of new democracies has been assessed through the democratic consolidation paradigm which seeks to assess whether democracies are 'consolidated'. But an examination of the paradigm shows that it is vague, teleological and ethnocentric and measures new democracies against an idealised understanding of Northern liberal democracies rather than offering a plausible means of assessing longevity or democratic progress. Its inadequacy is further demonstrated by applying it to the South African case. The article thus argues for a new approach which rejects the consolidation paradigm's assumption that some democracies (those of the North) are a 'finished product' and acknowledges both that all democracies are incomplete and that each will show uneven progress, so that older democracies will lag behind newer ones in some areas of democratic quality while surpassing them in others.

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Introduction

Politics of Recognition and Myths of Race

George Baca

At the time of this writing, the world is watching incredulously as terror and deprivation ravage the poorest citizens of New Orleans in the aftermath of Hurricane Katrina. The region’s middle class and elite fled the disaster, while federal authorities’ inaction resulted in starvation for those too poor to leave. Such callousness embodied in US civil society and state institutions has been made transparent to the world, illuminating the increasing class inequality that has evolved since the passage of the Civil Rights Act. In light of this conflation of racism and class inequality, this forum focuses on the ways that multi-cultural politics mystify such power relations with romantic recollections of popular resistance to racism in the post–World War II era: decolonization, the US civil rights movement, and the fall of apartheid in South Africa.