The law cannot guarantee social justice, and actually limits people from thinking about social justice as it should be.
This is according to Prof Lwazi Lushaba, political science lecturer at the University of Cape Town, who was one of the speakers at the recent justice indaba webinar on ‘income versus substantive justice’.
The event was hosted by the Students for Law and Social Justice (SLSJ) of Stellenbosch University (SU) on 18 August.
The purpose of the discussion was “diving into the income barrier that is faced by lower income groups, and how that affects their access to justice”, explained Thato Khang, chairperson of the SLSJ.
“Law can be a powerful tool for social change, and we have seen it in South Africa. Initially, for bad social change, and currently for some of the good social change,” said Prof Thuli Madonsela, law professor at Stellenbosch University. PHOTO: Connor Cogill
Beyond the books
South Africa is still very far off from achieving a socially just society, said Lushaba.
Crimes are considered crimes because society considers that act reprehensible, he explained. Since this decision on what is considered a crime could come from an unjust society, we have to look further than just the law for justice, Lushaba explained.
“We have graduates of law who think that you can guarantee societal justice by going into a court of law,” said Lushaba. “The books that contain law themselves have a prior condition. Let us insist on our right to deliberate on those prior conditions.”
Prof Lwazi Lushaba, a political science lecturer at the University of Cape Town, incorporated concepts of social justice from Society Must Be Defended by Michel Foucoult, a French philosopher, into his discussion of a “social consciousness” which shapes society and, in turn, shapes the law. PHOTO: Connor Cogill
‘Like any other instrument’
The law sometimes functions like new wine in old barrels, or “old skins, new wine”, explained Prof Thuli Madonsela, social justice chair and law professor at SU.
This is because new laws are contained by old legal concepts, Madonsela said during the event. However, she maintained that “law can be a powerful tool for social change”.
“Law is like any other instrument – it can be used for evil purposes, and it can be used for good purposes,” explained Madonsela.
People first
The idea that the law is a product of “its context, time, society, worldview and perspective” and so cannot be separated from the context in which it was created, was something from the discussion which spoke to Kopano Lebele, ex-officio SLSJ member.
South Africa is the most unequal country in the world, according to The World Bank. The gini coefficient is used to measure income disparity, with a higher gini coefficient representing higher income disparity. Above are the ten countries with the highest gini coefficients in the world in 2022, according to the World Population Review. GRAPHIC: Connor Cogill
“To direct or restore the correct formulation of the law, we must restore or direct a socially just society,” said Lebele on his main take-away from the discussion.
Substantive justice needs to be concerned with people, said Charmika Samaradiwakera-Wijesundara, senior law lecturer at the University of the Witwatersrand.
“It’s about people. Justice is about people, and any meaningful concept of justice is one that requires us to think about the concrete lived experiences of people,” said Samaradiwakera-Wijesundara.