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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:What the Equality Courts can learn from Gilligan's ethic of care: a novel approach
Author:Bohler-Muller, NarniaISNI
Periodical:South African Journal on Human Rights
Geographic term:South Africa
equal opportunity
social justice
special courts
Abstract:Section 16 of South Africa's Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 provides for the creation of Equality Courts. This article explores the role that these courts could play in transforming South Africa into a more egalitarian society. In particular, it considers the role of Carol Gilligan's ethic of care in legal interpretation and adjudication, and extends this ethic in a nonessential way as a transformative constitutional value in the light of principles of collective justice and ubuntu(ism). Ubuntu(ism) as an indigenous ethic of care could assist the Equality Courts in deciding 'hard cases' with an emphasis on listening to the stories of previously silenced and disadvantaged groups. The adoption of an ethic of care in (equality) court proceedings will shift the emphasis towards context and away from concern about the creation of a precedent of universal application. The importance of developing and transforming the concept of justice in a democratic society and the possibility of incorporating substantive human relations into the understanding of legal equality is contrasted with the mere reliance on the application of mechanical rules to solve legal/moral dilemmas relating to the constitutional right to equality. Notes, ref., sum.