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248 Chapter 10 violent, fascist and expressly racist oppression.) 20 Second, the process of ‘recollective imagination’ and ‘transformative legal interpretation’ of ubuntu into a set of beliefs and practices that will bring about a representative, or democratic socialist, or communitarian, South Africa polity cannot be assumed. The critique of ubuntu as a potentially conservative brake on this country’s emancipatory project cannot be cavalierly dismissed. If ubuntu is connected – however unreflectively – with practices such as male primogeniture, male ascension to leadership positions, male circumcision rites or compensation for teacher-student, male-onfemale sexual violence, then such practices must be rooted out before ubuntu can lay claim to the mantle of revolutionary constitutional doctrine. We can agree with Professor Cornell’s desire to place ubuntu at the core of South African constitutionalism even as we insist that her efforts must convert those members of South African society who, when they speak of ubuntu, imagine a very different set of (conservative) political institutions and legal doctrines. Professor Cornell’s reflections on ubuntu and dignity are neither inventions in the German Idealist tradition nor fantasies about the underlying philosophy of many South African communities. What Professional Cornell’s writings exhibit is a two-fold effort to excavate the profound and unique communitarian thought embedded in ubuntu and a rolling-up-of-the-sleeves exercise in determining the content of ubuntubased forms of life throughout South Africa. Its also on exercise in speculative, philosophical anthropology. But it is more than that. By tying her unabashedly political project to classically anthropological work in the field, Professor Cornell promises the possibility of a fully worked out African ethics and politics. If there is a tension in Professor Cornell’s work, then it is a most natural tension between academic pursuits and practical politics. As a Kantian scholar of the first order, a long-standing student of ubuntu and a savvy analyst of politics in South Africa, the challenge before Professor Cornell is to get individuals and communities within this radically heterogeneous country singing off the same hymn sheet. No easy task. As her paper reflects, Professor Cornell struggles mightily to close the gap between ubuntu and dignity – at the same time as she recognises the differences between both constitutional norms. Need we try so hard to reconcile the two? No one has suggested that we need to square ubuntu with equality or freedom, or reduce it entirely to community rights. We might do well to consider allowing these values to occupy their own separate spaces – closely aligned, but with different roles to play when we apply our minds to constitutional conflicts. Perhaps a Twainian twist is in order: Ubuntu and dignity do not map directly on to one another, but they do rhyme. 20 See A Mngxitama ‘Introduction to Bohmke’s “The white revolutionary as a missionary”’ (2010) 5 New Frank Talk 1.
Where dignity ends and ubuntu begins - answer to Drucilla Cornell 249 Given this added layer of complexity, we might ask whether Professor Cornell can make good on the promise of both her ubuntu and dignity projects? She has already more than started. Yet a sense of urgency in South African politics (yes, an incipient violence) lingers over her poignant manifestos. We can ask of the ubuntu project, as Hillel did of his brethren over two millennia ago, ‘If not now, when?’
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Is This Seat Taken? Conversations a
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TABLE OF CONTENTS 1 2 3 4 5 6 7 8 9
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PREFACE We do things differently ar
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Finally, real communities and susta
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2 Chapter 1 continue to rely on it
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4 Chapter 1 2 The test The formulat
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6 Chapter 1 that government advocat
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8 Chapter 1 another. Such an unders
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10 Chapter 1 into (a) a threshold r
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12 Chapter 1 apprenticeship of one
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14 Chapter 1 Secondly, even legisla
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16 Chapter 1 (f) to limit licenses
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18 Chapter 1 We are left with purpo
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20 Chapter 1 minimal advancement of
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22 Chapter 1 residents to register
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24 Chapter 1 striking down the law
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26 Chapter 1 must meet all these pu
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28 Chapter 1 there are problems wit
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30 Chapter 1 Justification emphasis
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32 Chapter 1 146 6.1 What will the
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34 Chapter 1 to make the inquiry me
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CHAPTER 2 THE CONTENT AND JUSTIFICA
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The content and justification of ra
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76 Chapter 3 school and the purpose
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78 Chapter 3 to permit it to engage
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80 Chapter 3 residential life [and]
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82 Chapter 3 laws ‘will often hav
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84 Chapter 3 ‘core' or important
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86 Chapter 3 academy, his position
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88 Chapter 3 in other jurisdictions
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90 Chapter 3 In the United States,
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92 Chapter 3 criteria that are not
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94 Chapter 3 it was ‘not likely
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96 Chapter 3 performance of the tea
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98 Chapter 3 example, the virtues o
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100 Chapter 3 doctrines of religion
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102 Chapter 3 The reasons for think
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104 Chapter 3 in religious instruct
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106 Chapter 3 A church should, to p
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108 Chapter 3 Yet the Equality Cour
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CHAPTER 4 ON THE FRAGILITY OF ASSOC
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On the fragility of associational l
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142 Chapter 5 migrants are granted
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144 Chapter 5 Once the distinction
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146 Chapter 5 suffrage’. 17 In th
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148 Chapter 5 voters for, and then
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150 Chapter 5 From this starting po
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152 Chapter 5 because of the obviou
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154 Chapter 5 that the constitution
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156 Chapter 5 severance order, perh
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158 Chapter 5 Chief Electoral Offic
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160 Chapter 5 the attempt to distin
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162 Chapter 5 thought that politics
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164 Chapter 5 the political communi
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166 Chapter 5 Richter case. As the
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168 Chapter 6 particular understand
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170 Chapter 6 through the constitut
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172 Chapter 6 patriotism instead of
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174 Chapter 7 These statements give
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176 Chapter 7 which is S v Makwanya
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178 Chapter 7 going on, we could no
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180 Chapter 7 underlies constitutio
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182 Chapter 7 capacity to have righ
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184 Chapter 7 whether a foetus is a
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186 Chapter 7 exercising duties. In
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188 Chapter 7 ‘people’ depends
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190 Chapter 7 and allow for prejudi
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192 Chapter 7 individuals without a
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194 Chapter 7 The second factor out
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196 Chapter 7 differential capaciti
Page 206 and 207: 198 Chapter 7 3.1 ‘Progressive re
Page 208 and 209: 200 Chapter 7 realised now and thos
Page 210 and 211: 202 Chapter 7 Even a law of general
Page 212 and 213: 204 Chapter 7 and whether it repres
Page 214 and 215: 206 Chapter 7 Finally, the Court in
Page 217 and 218: CHAPTER 8 ANIMAL RIGHTS AND THE INT
Page 219 and 220: Animal rights and the interpretatio
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Page 230 and 231: 222 Chapter 9 But I am getting ahea
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Page 234 and 235: 226 Chapter 9 the two clauses of se
Page 236 and 237: 228 Chapter 9 conceived, then, is t
Page 238 and 239: 230 Chapter 9 African extended fami
Page 240 and 241: 232 Chapter 9 tarianism. It is only
Page 242 and 243: 234 Chapter 9 beings in their being
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Page 246 and 247: 238 Chapter 9 self-determination ha
Page 249 and 250: 1CHAPTER 0WHERE DIGNITY ENDS AND UB
Page 251 and 252: Where dignity ends and ubuntu begin
Page 253 and 254: Where dignity ends and ubuntu begin
Page 255: Where dignity ends and ubuntu begin
Page 260 and 261: 252 Chapter 11 If enacted in this f
Page 262 and 263: 254 Chapter 11 factors - inviting c
Page 264 and 265: 256 Chapter 11 3 Criticism of balan
Page 266 and 267: 258 Chapter 11 4 The case for balan
Page 268 and 269: 260 Chapter 11 If two principles co
Page 270 and 271: 262 Chapter 11 Botha’s contention
Page 272 and 273: 264 Chapter 11 values to be given t
Page 275 and 276: 12 David CHAPTER DOES BALANCING ADE
Page 277 and 278: Does balancing adequately capture t
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Page 300 and 301: 292 Chapter 13 The article is struc
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Page 304 and 305: 296 Chapter 13 government. 21 The d
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298 Chapter 13 Canadian courts woul
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300 Chapter 13 other forms of socia
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302 Chapter 13 polycentricity has i
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304 Chapter 13 The institutional co
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306 Chapter 13 they will protect as
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308 Chapter 13 Pre-democratic uses
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310 Chapter 13 same institutional a
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312 Chapter 13 These considerations
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314 Chapter 13 3.2 Socio-economic r
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316 Chapter 13 a fairly weak interp
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14 RECLAIMING THE FRONTIER OF CONST
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Mazibuko v City of Johannesburg - a
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342 Chapter 15 1 Introduction The w
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344 Chapter 15 The second problem i
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346 Chapter 15 My uncle, the master
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348 Chapter 15 and error put us in
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350 Chapter 15 (a) Dworkin writes:
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352 Chapter 15 data is poured into
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354 Chapter 15 naturally (and here
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356 Chapter 15 constitutional inter
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358 Chapter 15 Carolyn has formal t
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360 Chapter 15 and policies designe
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362 Chapter 15 However, let us assu
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364 Chapter 15 He is certainly corr
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16 David CHAPTER THEORY, PRACTICE A
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Theory, practice and the legal ente
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17 CHAPTER BETWEEN CHARITY AND CLAR
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Kibitzing with Frank Michelman on h
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18 Frank CHAPTER OLD KIBITZES NEVER
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Rejoinder to Stu Woolman 419 manage
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Rejoinder to Stu Woolman 421 (or mo
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19 Jonathan CHAPTER JUDICIOUS TRANS
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Judicious transparency 425 2 The me
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Judicious transparency 427 commenta
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Judicious transparency 429 without
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Judicious transparency 431 open - w
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Judicious transparency 433 The argu
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Judicious transparency 435 the disc
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CHAPTER 20 IN SEARCH OF A THEORY OF
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Response to Klaaren 439 implementat
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Response to Klaaren 441 imposed in
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Response to Klaaren 443 transparenc
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Response to Klaaren 445 Furthermore
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