feminists@law, Vol 7, No 2 (2017)

Holding out for other ways of knowing and being

Karin van Marle*

Introductory remarks

I seek to reflect on the theme of diversity and legal reasoning from the angle or vantage point of epistemology. This angle or vantage point may disclose alternatives to one that focuses on diversity as such. A concern with a certain way in which one can deal with diversity is that it could end up keeping the centre intact by allowing diverse voices and views in such a way that they remain exactly that, diverse views and voices that are raised against what remains ‘The view’. My concern is twofold: how to bring about a rupture to the centre, the status quo, business as usual, whether in the context of the court room, the class room or the market; but also how, following Arendt and Butler, to think about ‘cohabitance’, the possibility of living together within contexts of radical diversity.

As has been widely reported in the media South African universities have been experiencing student protests since February 2015. The various details and complexities of the protests are not the topic of this article. However the one relevant aspect of the protests is the extent to which students challenged accepted notions of valid truth, knowledge, reasonableness, legitimacy and more. I want to start by recalling some of the arguments for decolonising the university, but ultimately also other spaces and spheres. Could this approach also address what lies at the heart of the concern with diversity and could it expand and maybe even radically alter ways of reasoning? At the heart of calls for the decolonisation of the university is epistemic violence, the way in which knowledges deemed as ‘other’ for being traditional, indigenous, local, or that of women, have been violated, suppressed and marginalised.

I start below by recalling the view of Achille Mbembe on decolonising the university. After briefly considering Mbembe’s view I turn to the South African Truth and Reconciliation Commission (TRC) and how it engaged the notions of knowledge and truth – my aim here is not to join the wider discourse on and critique of the TRC but within the focus on epistemology to ask if the event of the TRC had, or could have had, or could still have in its aftermath an impact on epistemic violence and epistemic diversity.

In the last substantive section I draw on a number of feminist thinkers and perspectives that to my mind could enrich our reflection on diversity within the context of epistemology and ultimately, to bring it back to the overarching theme, beckon other ways of legal reasoning.

Decolonising the university

Achille Mbembe starts a reflection on the notion of decolonisation by recalling the issue of the Rhodes statue.(1) He unequivocally states that such a statue has no place on the campus of a public university, neither do other symbols, pictures or images that represent figures or people who negated the humanity of black people. Following his argument, these statues, images, symbols should be removed. Another view could be that one could diversify a campus by not removing the old but rather adding also images of struggle heroes or renaming buildings after alternative historical figures. The problem of the latter approach is that it might end up treating all of these symbols as equally representing past histories without challenging enduring legacies of exclusion and marginalisation. My concern with how diversity is often treated in law or legal reform projects is one of adding, with the view of bringing more diversity. My sense is that a mere adding of categories or even opening up to diverse ways will not sufficiently destabilise current systems and the culture and privilege attached to them.

Mbembe, considering access, urges that access is not only an issue of demography. ‘When we say access, we are also saying the possibility to inhabit a space to the extent that one can say, “This is not a hospitality. It is not a charity”.‘(2) In this vein he refers to buildings and argues that apartheid buildings/ infrastructure/ architecture ‘[are] not conducive to breathing’. The university classroom for him is a place where students should develop ‘intellectual and moral lives’ and critical skills. He laments the extent to which university education has become interested in delivering students who lack any interest in the ‘preservation of the intellect and advancement of the life of the mind’.(3) Related to this point is the extent to which universities have become ‘large systems of authoritative control’ – of standards, grades, classification, credits and penalties – coupled with bureaucratic methods. The ‘mania for assessment’, methods of evaluation and the turning of students into clients and customers all contribute to the need for decolonisation.

But the main issue is that of the Western nature of the university, meaning that ‘they are local instantiations of a dominant academic model based on a Eurocentric epistemic canon’.(4) The implication of a Western canon is that it values only Western notions of the truth and rejects all other forms of knowledge. An important feature of many Western epistemic traditions is their reliance on a certain division between ‘mind and world’, ‘reason and nature’, and on a detachment between the ‘knower’ and the ‘known’.  This point doesn’t speak only to epistemology, ways of knowing, but also ontology, ways of being.  Mbembe notes that the main problem of this form of epistemology and ontology is that they become hegemonic and do not acknowledge other ways.

Turning to Ngugi wa Thing’o, Mbembe gives some direction to what decolonising knowledge/ the university could entail.(5) He underscores relationality to ourselves and to others, which includes ‘in this age of the Anthropocene, all sorts of living species and objects’.(6)  Ngugi’s notion of re-centering is pertinent to the question of diversity – he supports a questioning of the idea that the West is the ‘central root’ of African consciousness and cultural heritage and rejects all attempts to set up Africa as a mere extension of the West. This does not entail a rejection of all European traditions, but redefines what the centre is.(7) Chakrabarty has in the same vein called for the ‘provincialisation’ of Europe.(8)  Mbembe aptly summarises Ngugi’s project as a call for ‘a geographical imagination that extends well beyond the confines of the nation-state’.(9)

Decolonising the university according to Mbembe has two sides. The first one entails the critique of the Eurocentric model that not only privileges European knowledge, but excludes, and more than that, others all alternative knowledges. The second side is to start to imagine the other model. Theorists like Walter Mignolo, Boaventura de Sousa Santos and Enrique Dussel argue that knowledge can only be thought of as ‘universal if it is pluriversal’.(10) In this vein the notion of ‘pluriversity’ is offered – pluriversity entails ‘a process of knowledge production that is open to epistemic diversity’. It involves a ‘horizontal strategy of openness to dialogue among different epistemic traditions’.(11)

Central to this notion of decolonisation is to think about the human and humanity in entirely new and different ways. Mbembe urges the significance of the Anthropocene that in itself brings about also a new geological epoch. This new geological epoch will open ways of ‘rethink[ing] the human not from the perspective of its mastery of the Creation as we used to, but from the perspective of its finitude and its possible extinction’.(12)  The rethinking of the human according to Mbembe will confirm that we are part of a very long history and secondly that agency and power should be extended to non-human nature. This would ask for new ways to make sense of epistemology, ontology, politics and ethics.

My sense is that a concern with radical or deep diversity would entail a re-centering, new ways to think about the human, letting go of mastery and acceptance of finitude. The lack of success of legal responses to diversity fully to include all perspectives could be because attempts are made to acknowledge difference without disrupting the core. Marxist, feminist and critical race theorists have questioned the extent to which law as an approach embedded in the superstructure, in patriarchy and in white supremacy can bring about radical change. Decolonial theorists like Mignolo have argued that the history of modernity is inherently tied up with coloniality.(13) The history of modern law, legal modernity is likewise embedded in conquest. Karl Klare, in the South African context has insisted that the Constitution will fail to bring about the envisaged transformation if the legal culture doesn’t change.(14) With legal culture he means professional sensibilities, habits of mind, what is regarded as valid argument, valid legal reasoning. Below I turn to the South African TRC and ask to what extent, if at all the event disclosed possibilities for the ‘becoming of a plural jurisprudence’.(15)

Knowledge and truth

Douzinas and Gearey’s distinction between general and restricted jurisprudence forms an important framework for thinking about a plural jurisprudence and for thinking about diversity in legal reasoning.(16) General jurisprudence, unlike restricted jurisprudence’s concern with distinguishing law from non-law and similar to what Mbembe also argues within the context of decolonisation, takes account of not only knowledge and epistemology but also being, ontology. They explain that a general jurisprudence is concerned about a social ontology – a way of being together in the world. Taking epistemic and ontological diversity as starting points, general jurisprudence could open up for multiple voices and perspectives. I previously have considered the life stories of Nelson Mandela and Winnie Madikizela Mandela as at least two possible ways also to think about jurisprudence, arguing that in addition to the traditional coming of age story of progress and overcoming of Nelson, Winnie’s story opens up possibilities to reflect on discontent, contestation and tragedy.(17)

I refer above to Arendt and Butler on cohabitation as an important notion to think of within the context of diversity. Butler invokes the question of ‘what it might mean to live together’ within a context of certain histories of dispossession and violence.(18) She follows Hannah Arendt in calling for ‘cohabitation’ as an ‘ethical demand’.(19)  Butler’s arguments are complex and demand a deeper engagement that is not the main focus of this article. However, cohabitation as ethical demand beckons for me possibilities to think a plural jurisprudence, one that may ‘welcome other ways of being’ and heeds diverse and multiple knowledges and truths.        

In his reflections on the TRC, Albie Sachs distinguishes between knowledge and acknowledgement.(20) Before I expand on his view let me pause to say that there are many critiques against the TRC – from how it was set up to how the actual hearings took place to how the final report was put together. My aim here is not evaluate the TRC and to focus on its failure or success but to raise the issue of knowledge and truth and how it was invoked (even if thwarted) and to call again for a reflection on how these notions could be of value in thinking about diversity. Knowledge for Sachs entails an awareness of information, mere facts. Acknowledgement goes further by connecting facts to emotional and social significance. Sachs holds that it was well known that many people suffered under apartheid even before the TRC started its hearings but that the meaning of this suffering only surfaced when stories of pain and grief were televised.(21) For him the TRC process allowed for knowledge to be converted into acknowledgement.

He also distinguishes between four different types of truth as they came to the fore during the TRC, namely observational, logical, experiential and dialogical truth.(22) Observational and logical truth captures those versions of truth that we find within traditional approaches to science and discipline. It is in these versions where normalising and thus also epistemic violence occurs as these truths are set up as the only possible ones, while others are rejected, suppressed and marginalised. Sachs describes observational truth as detailed and focused and logical truth as that at which we arrive by following a process of deduction. He notes that the law and we may add traditional legal reasoning to a great extent involves making a connection between observational and logical truth.(23) Experiential truth is what comes to the fore by living through an experience. It is exactly the kind of truth seemingly eschewed by the law, although as critical scholars have exposed, much of the other two truths explained above is similarly based on a specific experience of truth. Truth based on experience could however further epistemic violence if only certain experiences are acknowledged. Dialogical truth is in the words of Sachs ‘a truth based on interchange between people’.(24) In this version people coming from different backgrounds and with different interests come together to debate and contest the truth. Dialogical truth is continuous and no final version can be found. According to Sachs the TRC focused a lot on the latter version in which truth came to the fore by way of multiple views being placed on the table and deliberated. But as with experiential truth, the value of dialogical truth will depend on who is allowed to take part in the dialogue. Mahmood Mamdani for example has argued that the TRC left us with a diminished truth because it focussed only on a minority of voices.(25) Louise du Toit underscored how the TRC failed to include reconciliation between the feminine and the masculine part of its framework rendering women again second class citizens.(26) But I do think that the shift from knowledge to acknowledgement as well as the shift from observational and logical truth to also experiential and dialogical truth holds potential for opening up for diverse ways of reasoning and doing law differently. I turn now to some feminist perspectives that engage with knowledge, difference and diversity.

Feminist knowledges

I am interested in thinking about reasoning in terms of relationality and spatiality. What I mean is reasoning as something that takes place between more than one person – reasoning as an act of thinking together.(27) This kind of reasoning can also take place when reading and making sense of the written works of others – what is reading and interpretation if not a way of reasoning with an author, trying to make sense of her thoughts. This resonates also with Arendt’s reliance on a Kantian notion of aesthetic judgement – judgement as an act where an imagined community is being recalled and during which an imaginary reasoning take place between a plurality of participants.(28) But for me there is also something spatial at play and below I recall Iris Marion Young’s reflections on city life as an example of difference and heterogeneity.

I would like to start here by drawing on Jacqueline Rose’s engagement with Rosa Luxemburg and its possible value for thinking about epistemic diversity and cohabitance. I focus on four themes in the life of Luxemburg as raised by Rose, namely aesthetics and thinking; rootlessness; unpredictability, spontaneity and uncertainty; and the ‘personal is the political’. Each of these underscores for me the limits of the processes and institutions deemed to carry transformation in South Africa until now, but I think also for law and legal reform in general.

Firstly, on the question of aesthetics and thinking, Rose describes Rosa Luxemburg as an ‘artist’ and specifically a ‘wordsmith’. (29) As an artist she was also a ‘truth-teller’ who exposed the falsehood of the consensus, that there is something beyond the world as described to us by the West.(30) Rose notes that for Luxemburg there could be ‘no politics without a poetics of revolution’.(31) It is interesting to note the extent to which South African legal theorists searching for a break with the formalism of the past have turned to aesthetic examples in their work. Wessel le Roux has referred to this as ‘an aesthetic turn’ in constitutional scholarship.(32) In this vein Sanders’ reading of the TRC as a literary event is significant.(33) Focussing on the testimonies at the TRC he describes it as ‘a singular occasion for thinking about the relationship between law and literature’.(34) It is significant that Sanders exposes how the possibilities for literature are created from within law and not from the outside. The ambiguity in all language reflected also by the various acts of witnessing ‘are underwritten by an ambiguity in law itself’.(35) Law’s relation with literature is interdependent not oppositional. ‘In order to be law, law engages, and engages with cultural explanation, linguistic idiom and literary form.’(36) This is an important insight in order to seek a different way of doing law, a way of ‘speaking-and reading-otherwise that might bring forth practical transformation irreducible to the workings of an informational calculus’.(37) By relying on aesthetics, the artists discussed by Rose all disrupted conventional modes of being, ontology and knowing, epistemology. 

Secondly, concerning rootlessness, Luxemburg was an outsider who did not belong. Rose traces her unbelonging and outsider status back to her personal circumstances – she was a Polish Jew who grew up as a secular Jew amongst Poles with a strong anti-Russian nationalism. Luxemburg has also been described as ‘rootless’ by a prosecutor, ‘a creature without a home’. For Rose it is exactly this position that made it possible for her ‘to think the unthought, to force the unthinkable into the language of politics’.(38) ‘Rootlessness’ for Luxemburg was something to treasure, in particular for women. She saw the inherent dangers in all forms of nationalism and national self-determination. As Rose notes, nationalism for her was violence.(39) In the context of migration and the hostility and lack of hospitality and friendship towards migrants and xenophobia in the South African context, Luxemburg’s concern for ‘the destinies … of the world’ is crucial.(40) Rose relates her insistence on the freedom to think otherwise to the question of the other: ‘to which others are you willing to accord the right to be free?’(41) This of course also echoes the urge to respond to epistemological violence.

A third and prominent theme in Luxemburg’s writings is that of new and unpredictable beginning. We find in tracing the life of Luxemburg a call for ‘a new language of politics’, one still not found or accepted in present times, namely a search for, and a view of politics that is open to the unknown, that is not premised on a secure blueprint but rather on what is not known in advance.(42) It is in her search for this vision that Luxemburg comes close to the Arendtian notion of natality, ‘new birth’, and ‘unpredictable beginning’.(43) 

Inner uncertainty as virtue could be added to unpredictability and spontaneity that for Luxemburg was a political and personal form of virtue.(44) Her famous phrase from ‘The Russian Revolution’ that socialism ‘is something which lies completely hidden in the mists of the future’ confirms this.(45) She embraced the idea that political life was ‘radically unknowable’ and rejected any heavy handed form of control in private and public life.(46) For Rose it is this belief that connects her belief in democracy, freedom and socialism. It is also this belief that supported her in exposing and challenging the untruths and false knowledge of a certain world view.

The link between Luxemburg and Arendt and her influence on Arendt is clear: the human capacity for new beginning underpinned Arendt’s notion of political action. This insight is in present times even more crucial to take to heart. The response to any call for transformation, any critique on present systems and arrangements is a demand for a fully worked out plan. We find ourselves in a time where it feels more than ever that there is no space for talking about things, for dialogue, deliberation and most importantly, reflection.(47)  Rose notes that in a democracy, mistakes can be seen, in contrast to a totalitarian regime where they remain hidden. This speaks to the importance of transparency and of people playing an active role in public life.

The fourth theme is the extent to which Luxemburg subscribed to the idea that spontaneity created the sole opportunity for transformation to take place in private and public life. Rose comments critically on interpreters of Luxemburg who make a false distinction between her private and public life and shows how Luxemburg often gained her deepest political insights from occurrences in her private life. She cites a letter Luxemburg wrote to her lover Jogiches in 1898: ‘[I]t was precisely those bruises on my soul that at the next moment gave me the courage for a new life’.(48)

Luxemburg regarded it as a ‘radical failure of politics not to be in touch with the deepest parts of the self’.(49) She urged people to delve deep into themselves to confront deepest fears and desires. This close engagement with the self relates to how Douzinas and Gearey describe general jurisprudence as being concerned with social being,(50) but also to aspects of decoloniality as set out by Mbembe. The idea of jurisprudence that embraces a ‘communism of the heart’ is one that urges not only a change of the system but also a change of self.

Rose’s reflection on Luxemburg resonates with the work of Adriana Cavarero, in particular her rereading of Penelope as setting forth a number of refusals, amongst others a refusal of western philosophy’s withdrawal from politics; a refusal of western philosophy’s association with death; a refusal of western philosophy’s association with the mind in a way that abstracts it from the everyday; a refusal of women being confined to predetermined spaces; and a refusal of the pervasiveness of economical, instrumental, calculated mindsets that prohibit any form of questioning, opposition or resistance.(51) Cavarero interprets Penelope as refusing the world of men and the world traditionally assigned to women. Penelope creates and constructs her own space and time and rhythm in the weaving room. The weaving room becomes a space of radical difference, where women can be themselves, create their own ontology, and their own knowledge, epistemology.(52)

I want to conclude this section by invoking a chapter by Iris Marion Young, published 30 years ago in a collection titled Feminism as critique.(53) Young argues strongly against the notion of impartiality as subscribed to by modern political theory. She comments that even though the phrase ‘modern political theory’ is problematic, because of the many continuities and breaks with the political past of the West, it is in the interest of feminism to reject modern traditions of moral and political life.(54) Young notes that feminists in the past (and we can add even many contemporary ones) believed that the liberation of women relies on expanding civil and political rights to women on the same terms as men. However, for Young ‘universal rationality, [is] deeply marred by masculine biases about what it means to be human and the nature of society’.(55) Young’s observation that women were not the only group excluded by western modernism resonates with decolonial perspectives. She refers to the

wonder at the hubris of a handful of western nations to have claimed liberation for humanity at the very same time that they enslaved or subjugated most of the rest of the world. Just as feminists see in male domination no mere aberration in modern politics, so many others have come to regard racism as endemic to modernity as well.(56)

Young argues for an ethics that rejects the notions of impartiality and universality and connects those notions with what Adorno calls ‘a logic of identity that denies and represses difference’.(57) She explains how the notion of the civic public within modern political conceptions relies on this exact idea of impartiality that distinguishes between reason on the one hand and affectivity and desire on the other hand. Young puts forward an alternative conception of public, a ‘heterogeneous public’ that unlike the impartial civic public embraces alterity. She explains that impartiality requires moral reason to be purified from desire, affectivity and bodily sensations, because that is the only way for impartiality to ‘achieve unity’.(58) This notion of impartiality has been embraced by the modern state and also modern law and for our purposes here legal reasoning. Young, turning to urban life describes the possibilities that it holds for creating critical spaces where people can gather and a multiplicity of perspectives and voices. However, she notes that most of these spaces were limited to white men to the exclusion of black men and all women. Her vision for public life was of one that could be open to all ways of being and knowing – a model in which ‘consensus and sharing may not always be the goal, but the recognition and appreciation of differences, in the context of confrontation with power’.(59) 

Conclusion

I approached the theme of diversity in legal reasoning from the perspective of epistemology and argued that political and legal institutions should value difference and live with it in a way that amounts to more than mere ‘accommodation’ or adding a list of different differences. By looking at a number of different ideas and perspectives I wanted to explore ways in which traditional approaches to notions like university, access, space, truth, knowledge, politics and ethics could be challenged at the heart of what they hold dear. Mbembe urges us to think about what is human through opening up to the time of the Anthropocene. Sachs’ exposition of the shift from knowledge to acknowledgement and the shift from traditional models of observational and logical truth to also experiential and dialogical truth beckons possibilities for law and legal reasoning. Rose’s engagement with Luxemburg provides an example of someone who told truths not heard by the mainstream. Luxemburg’s embrace of what is spontaneous and unpredictable, her refutation of nationalism and her deep insight into the importance of the personal holds potential for epistemic diversity. So does Cavarero’s Penelope by refusing to accept the worlds constructed by and on masculine knowledge. The late Iris Marion Young’s early insights into the male and racist bias of the western notion of impartiality and neutrality and her ideal of a heterogeneous public could serve as inspiration for multiple epistemologies to rise that can inform models of public life and also legal reasoning.

Above I referred to Arendt and Butler’s invocation of the former’s call for cohabitation, living with others as ethical demand.  At the heart of the ethical demand for cohabitation is the rendering of all lives grievable and all lives liveable. Within the context of epistemic violence we should ask how can a life be deemed grievable and liveable if the knowledges, histories and truths that make that life are not allowed to surface, to exist? Political, social and legal institutions predominantly still hold on to a singular knowledge and one version of truth that continues to exclude, marginalise and violate fellow humans, rendering their lives not grievable.

We might want to give up on all hope for circumstances to be different. Butler however urges us not to:

In fact in politics sometimes the thing that will never happen actually starts to happen. And there have to be people who hold out for that, and who accept that they are idealists and that they are operating on principle as opposed to realpolitik. If there were no such ideals then our entire political sensibility would be corrupted by this process. … What would happen if we lived in a world where there were no people who did that? It would be an impoverished world.(60)