An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Stanley Fish writes an interesting piece on his New York Times Blog about Immanuel kant and affrimative action. According to his interpretation, Kant would not have been in favour of affirmative action because Kant beleived that one should always stick to the first principles and should not, as a matter of ethics, be concerned about motives or outcomes.
It is because Kant insists on distinguishing what works (at least in the short run) and what is right that he would, I believe, be against affirmative action. He would have said, as many opponents of affirmative action do say, that it is wrong to respond to past acts of discrimination by discriminating in the present, even if your intentions are good. If discrimination – the unequal treatment of inherently free and equal citizens – is to be condemned when the motives behind it (to preserve power or maintain a way of life) are suspect, it is also to be condemned when the motives behind it (to redress an historical injustice or have the student body reflect the diversity of America) are benign. Otherwise the calculation of happiness (at least by someone’s lights) will have taken precedence over the upholding of principle.
According to Fish one can argue with this Kantian notion of ethics by showing that:
so-called principled arguments against affirmative action work by evacuating both history and morality – evacuating history by going to a level of abstraction so high that the difference between acts motivated by beneficence and acts motivated by malice disappear, and evacuating morality on the same reasoning.
I would go further and say that by using first principles one erases power from the equation and one really endorses an ethics of the powerful and the status quo.
If we stick to first principles (“everyone should be equal before the law”), we are endorsing the existing system in which most women and those who are not classified white, would remain in a position in which they would never be able to change the systemic inequality that sentences them to secodn class citizenship.
First principles are never applied in the abstract but within a specific social, economic and legal context in which the rules (assumed to be fair and neutral) are in effect “rigged” to ensure the perpetual domination of the powerful. So without affirmative action, we will treat all people the same which means that women, say, will always lag behind men when it comes to the landing of high powered jobs.
The system is rigged to make it more difficult for women to succeed (how many big firms offer free day care for children and why are there no tax brakes for child care expenses – because women raditionally have to bear the brunt of child care duties) and this will never change unless we move away form the Kantian requirement to apply first principles only.
In ethics, I believe, one should move away from abstract principles so loved by South African “liberals” towards an ethics of fairness.
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