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.
There has been a flurry of articles in the local rag, The Cape Times, arguing about the pro’s and cons of affirmative action. It was all started by prof David Benatar from UCT when he published an article arguing that affirmative action was unethical.
Prof Benatar argued that one of the problems with affirmative action was that employers woulkd appoint “less qualified” or “weaker” black candidates above “more qualified” or “stronger” white candidates. I find this kind of reasoning particularly unconvincing.
I would ask: on what basis exactly will those in charge at an institution decide that one person who happens to be black is “less qualified” or “weaker” than another person who happens to be white? Who will decide on the set of standards to be used, and on what cultural, institutional or other ideological assumptions will these standards be based?
In an organisation where the institutional culture is deeply entrenched (like in many previously “white” universities and companies) it is difficult for those deeply invested in the culture to recognise that their views about what is good and bad for the institution are not neutral or universal, but very much the product of a certain time and place and identity.
In such an organisation, an invisible norm – often based on a set of deeply ingrained cultural and racial assumptions – is deployed by those in power as a “neutral standard”, without any acknowledgement or understanding that this will inevitably perpetuate the unfair status quo and exclude those who do not share their worldview.
I have sat in many appointments committee meetings at my own university and have always marvelled at the way in which the first impulse of most people is to appoint candidates who are just like themselves. I do not mean that we instinctively want to support candidates of our own race or gender or sexual orientation, but individuals do seem to have an immediate affinity for those who symbolically represent what they think is best in themselves.
And we do so by telling ourselves that we are merely supporting the best candidate for the job, often not even thinking that we believe he or she is best because he or she is most like ourselves in terms of background, language, temperament, race or academic interests. It is thus not surprising that black candidates appointed in such institutions are often those who can demonstrate that they are very similar to the white people who appointed them. (In
In the absence of a clearly formulated affirmative action policy, there is little incentive for elites at major organisations to “think outside the box” and to interrogate issues around qualifications, standards and excellence. This results in the dominant group – which at many universities and private firms remains white, middle class and well-heeled – retaining a monopoly on authenticating knowledge and allowing them to be “gatekeepers” to the institution.
I am not claiming that those who act in this way do so with the intention to discriminate against those (often from a different race) who do not fit the mould. People who support “race-neutral” employment policies often do so because of a genuine horror of the perceived corrosive consequences of race-based policies. They may well genuinely believe that affirmative action will help to reify racial categories and will lock us into a race-obsessed world not much different from the apartheid system we have so recently escaped.
But I would contend that there is nevertheless a somewhat troubling reason why in the new
Because power and control was in the hands of whites during the apartheid era, the world view of whites was so all-encompassing that it made it unnecessary for whites to develop any understanding of their own “unbearable whiteness of being”. For liberals who rejected racial classifications and claimed not to notice race, it was easy to make decisions about who were “qualified” for a job, say, without noticing that the criteria used were anything but race-neutral and objective, but instead were based on the worldview of the dominant white group.
The insistence on the importance of racial categories to deal with past injustice can therefore be deeply threatening because it is seen as an attack on the “universal” Western values that was never questioned during the apartheid era – even by proud and brave liberals like Helen Suzman. In a new
Affirmative action is thus deeply troubling exactly because it has the potential to effect deep transformation. When an organisation is required to follow through on an effective affirmative action policy, it would not be sufficient for it to appoint a few black people to ensure the correct racial aesthetics for the organisation. Its leadership will instead be forced to reflect on the exclusionary nature of an existing institutional culture in which black people have a better chance of appointment if they are in any other way but skin colour like the whites in charge.
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