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What the Equality Courts can Learn from Gilligan's Ethic of Care: A Novel Approach

ABSTRACT Section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 makes provision 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, the role of Carol Gilligan's ethic of care in legal interpretation and adjudication is considered, and an attempt is made to extend this ethic (in combination with the ethic of justice) in a non-essential way as a transformative constitutional value in the light of principles of collective justice and ubuntu(ism). The aim is to illustrate how this indigenised ethic could assist the equality courts in deciding ‘hard cases’ with an emphasis on listening to the stories told by previously silenced and disadvantaged groups. The importance of developing and transforming the concept of justice in a democratic society is emphasised and the possibility of incorporating substantive human relations into our understanding of legal equality analysed. This approach is contrasted with the mere reliance on the application of mechanical rules to solve legal/moral dilemmas relating to the constitutional right to equality.