Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
29 April 2007

Fuddy-duddy equality = 0, critical equality = 1

Michael Osborn responded thoughtfully to my posts on affirmative action. It’s perhaps worth quoting from his response at lenght.

Pierre’s relativism is an invigorating and necessary corrective to the “false necessities” in which all institutions trade to legitimate and reproduce themselves. But the rejection of “standards” per se, like many other forms of thoroughly radical critique, rob us of our capacity for critique itself. As I have said, Pierre’s suggestion that standards are nothing but tools of exclusion is inconsistent with the unflinching absolutism that animated our attack upon apartheid education.

Pierre’s position enables him to evade the tragic choices that must sometimes be made between equal opportunity, on the one hand and what Benatar and his fuddyduddy ilk call “quality” on the other hand. It is easy to sympathise with Pierre in this debate. The practical pressures of transformation, and the abuse of “standards” as a rationale for racism, make such a denial very tempting.

I can offer no solution to this quandary. But I am convinced that, if Pierre is suggesting that (outside perhaps of the “hard” sciences), there exist no clear standards against which to measure quality, his position is incoherent, Like it or not, every discourse and practice is constituted by its implicit standards, the provenance of which are indeed always arbitrary, partial, unfair, exclusive – or reflect a colonial imposition. (Didn’t Foucault write that somewhere?)

That is not to say that all standards must not be interrogated. (Forgive the ghastly, but still trendy, term.) Indeed, in the best tradition of liberal pedagogy, unrelenting questioning of the most fundamental premises of a discipline must itself be part of that discipline. We are condemned to hack away at the branch upon which we stand – yet hope the branch never gives way under our feet. Unless we have a gift for self-levitation, we have no choice but to keep some (but not too much), faith in our branch.

Can’t say I disagree with much in this post. In an extended version of my remarks on affirmative action published in the Cape Times, I do actually say that I am not pleading for an abandonment of “standards”. If I get into that Boeing 747 I want to know that the pilot can land the machine without killing me. It’s the easy assumptions about standards that I decry.

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