Bringing Gender and Class into the Frame: An Intersectional Analysis of the Decoloniality-As-Race Critique of the Use of Law for Social Change

• Jurisdiction: South Africa
• Author: Dugard, J.
• Published date: 21 June 2021
• Citation: (2021) 32 Stell LR 24
• Date: 21 June 2021
• DOI: https://doi.org/10.47348/SLR/v32/i1a2
• Pages: 24-46

https://doi.org/10.47348/SLR/v32/i1a2

24

BRINGING GENDER AND CLASS INTO THE

FRAME: AN INTERSECTIONAL ANALYSIS OF

THE DECOLONIALITY-AS-RACE CRITIQUE OF

THE USE OF LAW FOR SOCIAL CHANGE

Jackie Dugard

BA LLB BAHons LLM MPhil PhD

Associate Professor, School of Law, University of the Witwatersrand*

Angela María Sánchez

LLM student, Universidad de los Andes*

Abstract

During 2017, S outh African de coloniality theori st Tshepo Madlingozi argued,

in relation to the ongoing socio-p olitical and economic exclusion of the black

majority in South Afr ica, that the post-1994 rights-based constit utional order

represents more contin uity than rupt ure, consolidating a tr iumph of social

justice over liberation an d a privileging of the democrat isation paradigm

over the decolonisation one. In Madlingoz i’s crit ique of the “neo-apartheid”

social justice order, race contin ues to be the most important dividing line, an d

human rights constit ute a western “perpetuation of the coloniality of bei ng”.

This argument re sonates with broader conte mporary critiqu es of the weak,

compromising and imperial n ature of human rights. Against this b ackdrop,

we examine the potential , as well as the limits, of using human right s as a

tool for social change. Engaging an interse ctional analysis informed b y the

seminal work of Kimberlé Crenshaw and Nancy Fraser, we nd that the focus

on decoloniality-a s-race obscures other cr itical fault lines to the detr iment

of progressive change, and tha t a radical reading of human rights i s capable

of correcti ng this  aw. We argue that the incorporation of gender and cla ss

lenses provides a power ful tool to change both the narrative about the dr ivers

of inequality among capitali st democracies and the role of socio -economic

rights adjudication within th em. Our article is also a n invitation to rethink

the domestic constit utional histories of the global so uth by acknowledging

rights-based redist ributive transfor mations within the conte xt of market and

development policies, and to p ush for the uptake of rights to empowe r social

struggle and tackle st ructural disadvantage.

Keyword s: decoloniality-a s-race; gender; class; intersectionality ra dical

human rights

* We are aware that as rel atively privilege d, white and La tina (respect ively), scholars with va rying

involvement in the social just ice s ector, our positionalit y is far f rom “ neutral” We a re g rateful to

comments f rom two anonymous reviewer s, and to the School of Law, University of New S outh Wales,

Sydney, for the oppor tunity to prese nt an earlier version of th is article at a confere nce on Redistributive

Human Rights (31- 01-2019)

(2021) 32 Stell LR 24

© Juta and Company (Pty) Ltd

https://doi.org/10.47348/SLR/v32/i1a2

1 Introduction

During 2017, South African decolonial ity theor ist Tshepo Madlingozi

argued, in relation to t he ongoing socio-political and economic exclusion of the

black majority in South Afr ica, that the post-1994 rights-based const itutional

order represents more conti nuity than ru pture, consolidati ng a triumph

of social justice over liberation and a priv ileging of the democratisation

paradigm over the decolonisation one. In Madlingozi’s critique of the “neo-

apartheid” social ju stice order, race continues to be the most imp ortant

dividing li ne that accounts for the “reality of ongoing racial dehumanisation

and so cial invisibility”1 in the interes t of persistent colonial struct ures, and

human rights – as the hegemonic d iscourse of social justice –constitutes a

western “pe rpetuation of the colonialit y of being”.2 This argument resonates

with broader contempora ry critiques of the weak, compromising and i mperial

nature of human r ights.3

Against this backdrop – a nd based on the observation by EP Thompson

that law struct ures social relationships a nd the opportu nities for action4 –

we examine the potential of usi ng human rights as a tool for social change.

Engaging an intersectional analysis informed by the seminal work of Kimberlé

Crenshaw5 and Nancy Fra ser,6 we nd that the focus on decoloniality-a s-race

obscures other crit ical fault lines to the detr iment of progressive change, and

that a radical reading of human rig hts can correct this aw. We argue that

incorporati ng gender and class lenses provides a powerful tool to change both

the narrative about the d rivers of inequalit y among capitalist democracies

and the role of socio-economic rights a djudication within them. Our art icle is

also an invitation to ret hink the domestic constitutional h istories of the global

1 T Madlingoz i “Social justice i n a ti me of Neo -Apartheid Constitution alism: Crit iquing the anti-black

economy of recog nition, incorp oration and dist ribution” (2017) 28 Stell LR 123 123-127

2 135

3 In “Criti ques of Hum an R ights” (2018) 14 Annual Review of L aw and Social S cience 69, Malcolm

Langford argu es that “[e]mpirical critiq ues of human rights have reache d a crescendo” (69), with many of

the curre nt critiques focu sing on the limit ed impact and in creasing ir relevance of human r ights One such

recent, and high-profile , critique is S Moyn’s book , Not Enough: Human Rights in an Une qual World (2 018)

For Moyn, the main p roblem with rights is that rh etorically, (particu larly in terms of the inte rnational

human right s treaties) and a s practised (ma inly by inter national non- government al organisat ions),

human right s have not focused on socio-econ omic inequality It is perhap s worth mentioning th at Moyn’s

unqualif ied claim that “no human rights NG Os, norther n or southern, em phasized inequ ality for its own

sake” (195) overlooks one of the large st global human right s funding organ isations, the Ford Found ation,

which, si nce 2014, has had as it s overarchi ng focus, inequality I n addition , at least one South African

non-governm ental organizat ion (“NGO”), the Socio-Econom ic Rights Institut e of South Africa (“SERI”)

frontloads s ocio-economic equ ality as its overarc hing value (so much so that, i n its logo, the crossbar of

the let ter E of the SERI acr onym is the equ ality sy mbol [=]) It is al so notewor thy that Moyn’s critiq ue

has focused on no rthern internat ional NGOs (such as Human Rights Watch) ra ther than the d omestic

operation of r ights especially in the glob al south, where socio-ec onomic rights are much stro nger and

more popular t han in the global nor th and in variou s contexts do signi ficant work (arguably m ore so than

direct polit ics) in creating spaces for t he mobilisation of subord inate groupings and t o challenge socio-

economic power a nd privilege by privat e and public actors

4 EP Thompson Poverty of The ory and Other Ess ays (1978)

5 K Cr enshaw “Dem arginalizi ng the I ntersection of R ace and Se x: A Black Feminist Critique of

Antidiscr imination Doctrine , Feminist Theory and Anti racist Polit ics” (1989) 1 Un iversity of Chicago

Legal Forum 139

6 N Fraser “From Redist ribution to Recogn ition? Dilemmas of Justice in a ‘Post-Soc ialist’ Age” (1995) 212

New Left Revie w 68

BRINGING GENDER AND CLASS INTO THE FRAME 25

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