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.
—S Ahmed, ‘Deconstruction and Law’s Other: Towards a Feminist Theory of Embodied Legal Rights’ (1995) Social and Legal Studies 55 – 73.
—U Baxi, The Future of Human Rights (Oxford: OUP, 2006).
—U Beck, Power in the Global Age (Cambridge: Polity Press, 2005/2006).
—C Douzinas, ‘Justice and Human Rights in Postmodernity’ in C Douzinas and A Tompkins, Understanding Human Rights (London: Mansell, 1996) 115 – 137.
—S Gill, ‘Constitutionalizing Inequality and the Clash of Globalizations’ (2002) 4 International Studies Review 47– 65.
—P Halewood, ‘Law’s Bodies: Disembodiment and the Structure of Liberal Property Rights’ (1996) 1 Iowa Law Reivew 1331 – 1393.
—MJ Horwitz, ‘Comment: The Historical Contingency of the Role of History’ (1981) 90 Yale Law Journal 1057 – 1059.
—G Huggin and H Tiffin, ‘Green Postcolonialism’ (2007) 9/1 Interventions: International Journal of Postcolonial Studies 1 – 11.
—J McLean, ‘The Transnational Corporation in History: Lessons for Today?’ (2004) 79 Indiana Law Journal 363 – 377.
—K Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (London: Thomas Nelson, 1965).
—D Nibert, Animal Rights, Human Rights: Entanglements of Oppression and Liberation (Oxford: Rowman and Littlefield, 2002).
—T Pogge, World Poverty and Human Rights (Cambridge: Polity, 2008).
—A Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge: CUP, 2001).