A Longer Road to Freedom: Addressing 21st Century Apartheids – Anna Grear

This blog post originally appears on Critical Legal Thinking.

Apartheid may of­fi­cially have ended in South African law and politics, but the world faces rap­idly con­sol­id­ating new forms of ‘apartheid’ with just as deadly an im­pact — but this time, on a global scale.

The death of Nelson Mandela seems to unite minds and hearts the world over in a cel­eb­ra­tion of his life’s achieve­ments and an ap­par­ently near-​universal sad­ness at the passing of ‘a great light’ from the world. International leaders are lining up to give their deeply felt eu­lo­gies; na­tional flags fly at half mast over sites of power; words such as ‘freedom’, ‘saint’, ‘com­pas­sion’, ‘hu­mility’ pass flu­idly from the mouths of men and women humbled by the great­ness of the spirit of the man who, for many South Africans, was a be­loved father. And amidst this, throngs of or­dinary South Africans, flooding to his home area, singing and crying — throwing flowers to the ground — and, on the night that his death was an­nounced on BBC Radio, and cut­ting through the mul­ti­tude of voices, the heart­felt words of a fif­teen year old teen­ager who said, simply, ‘if it weren’t for Mandela, I would be killing my Black friends. I love him’.

Clearly, in the days to come, after the ini­tial mourning is over and a re­spectful hi­atus has been ob­served, there will be those who will emerge to ques­tion the public ac­count of Mandela’s con­tri­bu­tion and legacy. The com­plex­ities and am­bi­gu­ities laid to one side in the fresh­ness of grief and cel­eb­ra­tion will doubt­less then be ex­plored at length.

For me, how­ever, other com­plex­ities abound. These com­plex­ities are not to do with Mandela him­self, but more to do with the con­tra­dic­tions of our cur­rent global con­di­tion. Apartheid may of­fi­cially have ended in South African law and politics, but the world faces rap­idly con­sol­id­ating new forms of ‘apartheid’ with just as deadly an im­pact — but this time, on a global scale.

For me, as I listened to the night-​long World Service cov­erage of Mandela’s life, ill­ness, struggle, death, and the end­less eu­lo­gies flowing in from world leaders, the com­plex­ities emerged first as a vague sense of un­ease. First, there was an aware­ness of ob­vious con­tra­dic­tion: Barack Obama praising Mandela’s sac­ri­fices for freedom while presiding over the rapid and suf­foc­ating se­cur­it­iz­a­tion of the state in pos­sibly the most socio-​economically di­vided na­tion on Earth, for ex­ample. Then, David Cameron heaping praise on Mandela, when in the past he as­so­ci­ated him­self with the Tories calling for Mandela’s down­fall as a ‘ter­rorist’, and so forth.

Such con­tra­dic­tions, of course, were quickly picked up in the on­line media the next day, in par­tic­ular, Cameron’s al­leged in­volve­ment in making a poster calling for the ex­e­cu­tion of Mandela emerged on Facebook and on other sites, along with crit­ical con­tri­bu­tions of the ‘we have not for­gotten what you said’ variety. However, my night time dis­com­fort in the midst of that long World Service cov­erage of re­ac­tions to Mandela’s passing didn’t just con­cern the dis­crep­an­cies haunting the gap between the beau­tiful words and past and present polit­ical real­ities presided over by those ut­tering them. There was some­thing more.

I was pro­foundly aware, as I lay there listening, of the im­mense con­tra­dic­tion between the hubris about the de­mise of apartheid in South Africa and what we could call in de­lib­er­ately pro­voc­ative mode the ‘apartheids’ now deep­ening their grip on our world. While apartheid in South Africa en­acted an ex­plicit legal policy of se­greg­a­tion, the ‘apartheids’ of the con­tem­porary world order are more sur­repti­tious, de­ceptive. They mas­querade be­neath a dis­course of ‘pro­gress’ in an order whose sep­ar­ative dy­namics are presented as de­par­tures from — or fail­ures fully to live out the values of — a leg­ality com­mitted to formal legal and polit­ical equality.

The new forms of ‘apartheid’, in a strict sense, of course, are not apartheids at all. They offer no rigid formal legal se­greg­a­tion, quite the op­posite. The lib­eral jur­idical and polit­ical mythos is con­structed as a smooth sur­face of de­ontic re­la­tions through which ra­tional actors op­er­a­tion­alise formal equality through the sacral me­dium of contract.

The same as­sump­tion of formal con­trac­tual equality pre­dom­in­ates in the jur­idical self-​understanding of the in­ter­na­tional legal order, con­ceived of as a matrix of re­la­tions between equal, ter­rit­ori­ally bounded, sov­er­eign states. In an­other sense, though, the sep­ar­ative real­ities of our age can be seen as un-​named dy­namics of se­greg­a­tion; as un-​named ‘apartheids’ en­acted in a con­tem­porary reality cent­rally char­ac­ter­ized by a deep­ening dis­crep­ancy between the demo­cratic rhet­oric of formal legal equality and the highly un­even, pred­atory necro-​political real­ities of the neo­lib­eral global order.

There are mo­ments, of course, in which signs of these ‘apartheids’ emerge to chal­lenge us with their sudden and lucid vis­ib­ility: the stark im­ages of Afro-​Americans, un­pro­tected in the af­ter­math of Hurricane Katrina ex­posed, not for the first time, but with ex­cor­i­ating clarity, the ra­cial­ized socio-​economic apartheid of US so­ciety. Likewise, the im­ages of the dev­ast­a­tion — the shattered build­ings and ob­jects and broken bodies — left by the wrath of Typhoon Haiyan, re­vealed global pat­terns of in­justice that in­spired the Philippine rep­res­ent­ative to the Climate Change Conference in Warsaw last month to hunger strike, de­manding, through tears of grief, some kind of re­sponse from the eco­nom­ic­ally dom­inant, his­tor­ic­ally most climate-​polluting na­tions in the form of de­cisive ac­tion on cli­mate targets.

Climate injustice provides, ar­gu­ably, the paradig­matic in­stance of the im­bric­ated forms of con­tem­porary ‘apartheid’ now haunting the neo­lib­eral glob­al­ized world order.

Climate in­justice is pat­terned (one could even say, pre­dict­ably pat­terned). The worst ef­fects of cli­mate change fall pre­cisely on those who have con­trib­uted least to it, those who have the fewest re­sources for re­si­li­ence. In this sense, cli­mate in­justice has en­tirely pre­dict­able vic­tims. In simple terms, we can identify them as ‘the poor’ — the socio-​economically dis­ad­vant­aged — wherever they are, but es­pe­cially in the Global South. Mandela him­self was a pas­sionate cham­pion of the poor. And Mandela would have been no stranger to the idea that socio-​economic dis­ad­vantage has a very telling pat­tern and history.

Mandela un­der­stood what the ideo­logues of con­tem­porary market op­por­tunity so often deny or over­look: that priv­ilege and dis­ad­vantage are so­cially and his­tor­ic­ally pro­duced. They are pro­duced, moreover, along highly un­even, dis­tinct­ively pat­terned lines. Donna Haraway once named these pat­terns ‘well prac­ticed dis­tri­bu­tions of life and death’. Sociologist David Nibert calls them ‘en­tan­gle­ments of op­pres­sion’, pat­terned en­tan­gle­ments uniting mar­gin­al­ised and non-​dominant hu­mans, non-​human an­imals and ecosystems.

All these op­pressed be­ings and sys­tems, Nibert ar­gues, are re­duced, in sig­ni­fic­antly op­pressive and often deathly ways, to being mere ‘re­sources’ for cor­porate global cap­it­alism; a point re­lated to the fact that the widely re­cog­nised em­pir­ical pat­terns of cli­mate and socio-​economic in­justice (and they may well be the same thing) are dir­ectly linked to a core char­ac­ter­istic of the in­ter­na­tional legal order, namely, the priv­ileging of the cor­porate legal form.

While in­creasing num­bers of people are aware of cor­porate dom­in­ance and of its de­structive im­pacts on demo­cracy, the en­vir­on­ment, human rights and many other as­pects of our shared lives on the planet, there is an­other, less ob­vious con­nec­tion between em­pir­ical pat­terns of op­pres­sion and cor­porate dom­in­ance: the in­flu­ence of the ar­che­type of the ideal lib­eral legal actor.

As is well known, crit­ical ac­counts of legal sub­jectivity point to the pre-​eminence of one par­tic­ular con­struct of the (‘nat­ural’) legal actor: the autonomous, self-​sufficient, ra­tional man of law and market: John Locke’s ar­chetypal European prop­erty owner/​citizen, founder of the lib­eral order in a prim­or­dial con­tract with others just like him. Critical ac­counts re­veal, as is also well known, that this con­struct ne­ces­sarily im­plies its ‘others’, the well-​known his­tor­ical tar­gets of polit­ical, eco­nomic, so­cial and legal dis­crim­in­a­tion: the property-​less; women; chil­dren; the ‘non-​rational’ (how­so­ever defined or con­structed); non-​white hu­mans; nomads; in­di­genous peoples and of course non-​human an­imals. While there are over­laps, in­ter­sec­tion­al­ities and dy­namics between these ‘cat­egories’, at their com­plex core is the con­struct — still per­sistent as a shadowy ar­che­type in law and jur­idical myth­o­logy — of the ra­tional autonomous (white, male) individual.

This con­struct of the ideal legal actor, what Alan Norrie calls the ‘hyper-​rational jur­idical in­di­vidual’, is in a com­plex but central sense dis­em­bodied. And even though, as Sara Ahmed has ar­gued, there is a body smuggled into the dis­em­bodied legal actor, no human being, not even a white European property-​owning male, could ever be its per­fect in­stan­ti­ation. There is al­ways a gap between the thin, dis­em­bodied legal in­di­vidual and the thick, cor­por­eally spe­cific human being. The cor­por­a­tion, on the other hand, is an al­most per­fect fit for it, pos­sessing a form of dis­em­bodied mut­ab­ility that en­ables it, moreover, to evade jur­is­dic­tional ac­count­ab­ility for harms en­acted in the pur­suit of profit, and to ex­er­cise the kind of un­ac­count­able power that Kwame Nkrumah pen­et­rat­ingly names as ‘power without re­spons­ib­ility … [in­flicting] ex­ploit­a­tion without redress’.

To sum­marise: cli­mate injustice has a clear pat­tern identical to well-​known and ac­cepted pat­terns of socio-​economic and jur­idical dis­ad­vantage at­taching to those ‘others’ who, as an em­pir­ical matter, have not his­tor­ic­ally fitted and in­deed cannot fit the tem­plate of the paradig­matic ra­tional actor of law and the market. The cor­porate legal person, mean­while, suf­fers from no such lack of fit between it­self and the dis­em­bod­i­ment of the legal per­spective. It is the per­fect fig­ur­a­tion for the cap­it­alist legal order. It is also the per­son­i­fic­a­tion of cap­ital it­self. Indeed, so pro­found is its struc­tural ad­vantage in law that Costas Douzinas has con­cluded that the human being — to the law — is ‘in­fin­itely more fic­ti­tious’ than is the cor­porate form.

The politics of dis­em­bod­i­ment and its ac­com­pa­nying ‘epi­stem­o­logy of mas­tery’ are central to this, and have deep im­plic­a­tions for the op­er­ative con­di­tions for oc­cult ‘apartheids’. Peter Halewood has ar­gued that ‘lib­eral theory, as a result of its ethic of dis­em­bod­i­ment, cannot yield sub­stantive equality’. It is pre­cisely dis­em­bod­i­ment, he ar­gues, that fa­cil­it­ates and makes pos­sible formal equality or what we could call the blood­less, ab­stract in­ter­change­ab­ility of in­di­viduals in the lib­eral jur­idical matrix. Importantly, dis­em­bod­i­ment dir­ectly con­trib­utes to lib­eral law’s deeply mis­leading formal equi­val­ence between in­di­vidual legal actors and cor­por­a­tions as pu­tative equals be­hind the public/​private divide.

Stepping back to look again at our con­tem­porary global situ­ation, we can clearly see that this pu­tative equality is but an ideo­lo­gical chi­mera, par­tic­u­larly in the case of the transna­tional cor­por­a­tion (TNC). The TNC cur­rently dom­in­ates the en­tire global legal order. TNCs exert al­most un­ima­gin­able power, sup­ported by powerful eco­nomic in­sti­tu­tions such as the International Monetary Fund (IMF), the World Trade Organization, the European Central Bank and other in­sti­tu­tional mid­wives to the neo­lib­eral global order. Stephen Gill has ar­gued that the world­wide amend­ment of old con­sti­tu­tions and the form­a­tion of new ones under the in­flu­ence of the IMF, the World Bank and other agen­cies of neo­lib­er­alism, amounts to the con­struc­tion of a ‘de facto con­sti­tu­tion for global cap­ital’, op­er­ative in a range of con­texts: in­ter­na­tional, na­tional and re­gional. Ulrich Beck, mean­while, char­ac­ter­izes con­tem­porary glob­al­iz­a­tion as being ‘one of the most im­portant changes there has been in the his­tory of power’, a com­plex set of shifts and struggles in which TNCs have emerged as nothing less than ‘private sector quasi-​states’.

The vast dis­par­ities im­plied by such un­even ag­greg­a­tions of power in the con­tem­porary global order emerge in mul­tiple hints pres­aging new ‘apartheids’. To name but a few:

  • the cor­porate polit­ical class in­creas­ingly erect a dense plethora of rules to pro­tect cor­porate com­mer­cial in­terests in ex­quisite de­tail while cor­porate lobby groups ef­fect­ively pur­chase the polit­ical system and or­dinary cit­izens find them­selves forced into ‘demo­crat­ic­ally’ and ju­di­cially me­di­ated forms of disenfranchisement;
  • cli­mate vul­ner­able na­tions are in­creas­ingly ex­posed to the rav­ages of weather-​related tragedy, while rich, his­tor­ic­ally pol­luting na­tions re­fuse to make re­par­a­tion (spe­cific­ally at the Warsaw cli­mate change meeting). Meanwhile, fleeing from climate-​stricken zones of des­per­a­tion and from other life-​threatening ex­i­gen­cies, boat­loads of Africans and others drown at­tempting to reach the immigration-​policed shores of Europe, or Australia, or America;
  • plans are laid up by gov­ern­ments and mil­it­aries for the for­cible con­trol of pop­u­la­tions, in­cluding their own na­tional pop­u­la­tions, in full an­ti­cip­a­tion of looming water wars, food crises and other pre­dict­able fal­louts of cli­mate crisis. The state-​corporate com­plex is laying the found­a­tions for a po­ten­tially savage level of cli­mate securitization.

The con­nec­tions between the white su­prem­acist apartheid that Mandela res­isted and the new forms of apartheid, in­cluding (again in a pro­voc­ative mode) cli­mate and glob­al­iz­a­tion ‘apartheid’, are far more than accidental.

History, as Morton Horwitz once ob­served, is where ideo­logy breaks cover. The tale is com­plex but its central themes are re­l­at­ively clear: the on­to­lo­gical and epi­stemic com­mit­ments of European dis­em­bodied ra­tion­alism have en­acted iden­ti­fi­able, pat­terned or­ders of human hier­archy, both within and beyond European so­ci­eties. It was this hier­arch­ical un­der­standing of human be­ings that un­der­girded the ex­pan­sion of European cap­it­alist am­bi­tion across the globe in its ‘civil­izing mis­sion’, and it was the jur­idical in­sti­tu­tion­al­iz­a­tion of these dy­namics that now shapes the con­tem­porary in­ter­na­tional legal order.

These de­vel­op­ments, even from their early days, were deathly. They en­snared human be­ings, non-​human an­imals and eco­sytems in their po­tent, de­structive tra­jectory. Graham Huggan and Helen Tiffin un­am­bigu­ously ex­pose this when they argue that

the in­cur­sion of Europeans into other areas of the world from the fif­teenth cen­tury on­wards cata­stroph­ic­ally res­ulted in gen­o­cide or the dis­pos­ses­sion and mar­gin­al­iz­a­tion of in­di­genous peoples across the globe. It also caused drastic changes in extra-​European tem­perate as well as trop­ical environments.

Indigenous on­to­lo­gies and epi­stem­o­lo­gies were ex­cised by a he­ge­monic European epi­stem­o­logy of ra­tional mas­tery. The ex­isting life-​worlds of hu­mans and an­imals in­di­genous to col­on­ized spaces and places were either mar­gin­al­ized or erad­ic­ated with pre­dict­able results:

Whatever the ex­tent of the change, the dis­pos­sessed fre­quently faced poverty and star­va­tion, and the ori­ginal ac­com­mod­ated re­la­tions between en­vir­on­ment, hu­mans and an­imals were frac­tured, some­times beyond re­pair. … Western his­tory, in both its Marxist and cap­it­alist in­carn­a­tions, worked ‘to as­sim­ilate di­verse cul­tures and spir­itual tra­di­tions into a ho­mo­gen­eous code’, at the same time as it ‘nat­ur­al­ized un­even eco­nomic de­vel­op­ment ac­cording to a linear nar­rative of civil­iz­a­tion. Its suc­cess in doing this, how­ever, de­pended on its ability to temper its tele­olo­gical heavy-​handedness with the promise of progress.

In our vastly un­even global order, the global order dir­ectly shaped by such co­lo­nial ante­cedents, un­even eco­nomic de­vel­op­ment in the name of pro­gress is still nat­ur­al­ized and le­git­im­ated. Thomas Pogge ar­gues that

[af­fluent na­tions] con­tinue to im­pose a global eco­nomic order under which mil­lions avoid­ably die each year from poverty-​related causes. We would re­gard it as a grave in­justice if such an eco­nomic order were im­posed within a na­tional so­ciety. We must re­gard our im­pos­i­tion of the present global order as a grave in­justice un­less we have a plaus­ible ra­tionale for a suit­able double standard. We do not have such a plaus­ible rationale.

Putting aside for one mo­ment the ob­jec­tion that such an order is in­creas­ingly im­posed within na­tional so­ci­eties in­cluding Britain, we can still allow Pogge’s central point: that the rad­ical un­even­ness so openly im­posed at the global level amounts to a grave in­justice. Its le­git­im­ated im­pos­i­tion, moreover, en­acts global in­justice in a way highly re­min­is­cent of the struc­tur­ally ex­plicit in­justice of formal apartheid. Indeed, the nat­ur­al­ized, ‘civ­il­ized’ hier­archy be­hind apartheid ideo­logy can be seen as an off­shoot or ex­pres­sion of the hier­archy driving co­lo­ni­alism, the in­ex­or­able out­working of the jur­idical, polit­ical and eco­nomic pri­ority of ra­tional, property-​owning white European men and their in­terests. This can also be seen as ex­pressed in the hier­archies in­creas­ingly evident in the in­justices of the cur­rent global order.

Significantly for the present ana­lysis, im­per­i­alist am­bi­tions in the nine­teenth cen­tury were primarily op­er­a­tion­al­ised through the jur­idical priv­ileging of the cor­porate form as a sov­er­eign sub­ject taking tem­poral and ideo­lo­gical pri­ority over ideal legal actor’s ‘others’. As Upendra Baxi puts it,

[l]ong be­fore slavery was ab­ol­ished, and women got re­cog­ni­tion for the right to con­test and vote at elec­tions, cor­por­a­tions had ap­pro­pri­ated rights to per­son­hood, claiming due pro­cess rights for re­gimes of prop­erty denied to human be­ings. The un­fold­ment of … ‘modern’ human rights is the story of near-​absoluteness of the right to prop­erty as a basic human right. So too is the nar­rative of colonisation/​imperialism which began its ca­reer with the ar­chetypal East India Company (which ruled India for a cen­tury) when cor­porate sov­er­eignty was inaugurated.

Janet McLean has like­wise ar­gued that the jur­idical priv­ileging of the early transna­tional cor­por­a­tion had a de­cisive role in the im­pos­i­tion of European co­lo­nial im­per­i­alism, tra­cing it to earlier periods and noting that

[c]olonization by private en­tities has been the pre­dom­inant form of western ex­pan­sion since the six­teenth cen­tury and for this pur­pose chartered com­panies and phil­an­thropic as­so­ci­ations had often been vested with sov­er­eign rights.

In these dy­namics, law’s mar­gin­al­isa­tions fell (and fall) upon those whose legal sub­jectivity has been rendered either par­tial or non-​existent (at dif­ferent stages of his­tory) by their dis­so­ci­ation from the ‘ra­tional’ and/​or with con­trol of property/​territory. The tales of the law’s vi­ol­ence against such mar­gin­al­ized sub­jects whose bodies are ‘in the way’ of ‘pro­gress’ are deeply fa­miliar whether past or present. From the whole­sale en­closure of land in the ser­vice of in­dus­trial ag­ri­cul­ture in England; to the dis­pos­ses­sion of in­di­genous peoples under European co­lo­ni­alism; to the vi­olent cor­porate neo-​colonialisms en­acted in the de­vel­oping world; to the con­tinuing global in­dus­trial pred­a­tion of the en­vir­on­mental com­mons; to the un­evenly dis­trib­uted pat­terns of ad­vantage and dis­ad­vantage within the de­veloped world. A sense emerges in which all of these pat­terned, fa­miliar in­justices were/​have been or are still jur­idic­ally me­di­ated.

The rad­ical dis­par­ities of the jur­idical apartheid that Mandela res­isted are form­ally over, yet our con­tem­porary global order is marked by de­pressing, pre­dict­able and deep­ening pat­terns of in­justice and dis­parity, fa­cil­it­ated by the form­ally neutral dis­courses of law and market. The pat­terns of cli­mate in­justice point to very fa­miliar, long­standing pat­terns of socio-​economic in­justice. They point, in short, to­wards deep­ening forms of cli­mate and glob­al­iz­a­tion ‘apartheid.’

There is no room it seems for the glow of com­pla­cency or for the warm, im­plied self-​congratulation of the leaders of ‘demo­cratic states’, whose ful­some praise of Mandela places them, by im­plic­a­tion, by his side and sim­ul­tan­eously denies the con­tra­dic­tions of their own role in an un­just con­tem­porary legal order. The deep­ening sense in which transna­tional cor­porate power has gained (and con­tinues to gain under the watch of men like Obama and Cameron) a rad­ical and in­or­dinate power in the con­tem­porary global order un­der­lines with fierce ur­gency the need to ad­dress the com­plex­ities and con­tra­dic­tions of our con­tem­porary situ­ation. I think it was this, most of all, that kept me awake that long night spent listening to the eu­lo­gies pour in after Mandela passed away.

What then, emerges from this? What les­sons can we draw?

Like Mandela, we have to ad­dress the fun­da­mental in­justice of the legal system. Unlike Mandela, how­ever, who faced the formal legal con­struc­tion of apartheid, we face a system that masks its pro­duc­tion of dis­parity pre­cisely through by its mech­an­isms of (mythic) formal equality, in­cluding its central com­mit­ment to a form of ra­tion­al­istic, dis­em­bodied sub­jectivity priv­ileging a nar­rowly iden­ti­fied con­struct of the human being over prac­tic­ally everything else (in­cluding the living order).

For us, the cor­por­a­tion as the per­fect in­stan­ti­ation of the dis­em­bodied actor of law and the ideal jur­idical mech­anism (as it turns out) for the ac­cu­mu­la­tion of he­ge­monic global power, must be­come a core target of ana­lysis. Like Mandela, we face the fact that nothing short of up­rooting the cur­rent jur­idical order is re­quired. But un­like Mandela, for us there is no other country ‘over there’ to place sanc­tions on the op­pressing system until it feels the pres­sure for change. No, the op­pres­sion we face is truly glob­al­ized, and pro­ceeds from a form of he­ge­mony de­manding all our cre­ativity and an ur­gency of pur­pose re­sponsive to the cli­mate sig­nals the planet it­self is now sending us con­cerning the nec­ro­pol­it­ical pri­or­ities of the global order.

Our polit­ical leaders may line up, then, to eu­lo­gize the man who cata­lysed the formal de­mise of apartheid in South Africa, but the savage real­ities of our corporation-​dominated, pollution-​ravaged world sug­gest that if Mandela’s legacy is to be more than words, we all have a re­spons­ib­ility to resist the fatal tra­ject­ories of ‘busi­ness as usual’, and act in mul­tiple ways to re­duce our per­sonal, col­lective, polit­ical, eco­nomic, legal and other forms of com­pli­city in the op­pressive global ‘apartheids’ of the 21st century.

Reference Bibliography

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