Western Liberal Legalism and its Discontents: A Perspective from Post-Apartheid South Africa

Much of the development in human rights is today reflected and understood through the lens of the metanarrative of Western legal liberalism, which inherently inhibits the full progress and utility of the rights discourse. Legalism and formalism work to legitimize the law, and make transformation and alternative formulations of notions of equality and rights impossible, thus perpetuating a status quo that ignores the empowerment of subaltern groups. This article argues in favour of changing the lens through which we appreciate the law and legal processes today. Looking at the Constitution of post-apartheid South Africa, and subsequent case law, the author introduces the theoretical tool of an ethical reading of the traditional legal concepts- this moves away from interpreting the notions of equality and rights within established metanarratives, making rights more meaningful and empowering.