As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Some readers have taken me to task for my post on affirmative action. They argue that I have not addressed the main point made by David Benatar in his paper on affirmative action. As Gerrit Brand, book editor of Die Burger, writes:
[Benatar’s] point is that when people are favoured for certain positions on the grounds of their race, it follows that the best candidate may in certain cases not be appointed simply because he or she has the wrong skin colour – which seems morally questionable.
The complaint seems to be that when we use race as a deciding factor in, say, the appointment of staff, it is ethically unacceptable because it is unfair to those (“better qualified”) white candidates excluded because of their race.
The point that I implicitly made in my post, was that it is not ethically responsible to talk about fairness and unfairness in an a-contextual manner, as if these concepts themselves are self-evident and neutral.
Why should it be self-evident that it is morally wrong to appoint people from a racial group who – as a group – continue to be victims of a culture steeped in racial prejudice? The unfairness is only self-evident from the vantage point of the dominant “western” or “white” culture – and exactly because that culture provides the “universal norms and standards” according to which fairness must be measured.
Many factors (apart from race) may explicitly or implicitly be deemed relevant for deciding who the best candidate for the job might be. But why are these factors hardly ever seen as deeply unfair to those who do not comply with them?
How many white people were appointed in the past to positions because they happen to have read the books deemed important or relevant, happen to know the cricket scores deemed relevant, happen to have attended a school or university deemed to be appropriate or happen to know the right people or speak the right home language? How many times are people appointed because – as Margaret Thatcher used to say – “ they are one of us”?
By using race as a criterion for appointment one would merely be making explicit what was always implicit in the selection of candidates – namely that criteria for selection are very seldom if ever completely “objective”. Because race – unlike many of the implicit criteria – disadvantages the powerful, the use of race as a criterion, unlike other criteria that implicitly would favour whites, is viewed as unfair.
I am therefore pleading for a contextual approach to fairness, which not only allows but actually requires race to be taken into account in order to achieve a more fair system of appointment. This is the kind of fairness embraced by
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