Contesting Liberal Legality: Informal Legal Cultures in Post-Apartheid South Africa’s Privatizing Seafood Fishery
by Ken Salo
Constructivist interpretations of law as an open and contested social field whose form is contingent upon the outcome of interacting formal and informal socio-legal practices continue to illuminate how legal fields are formed and transformed. This essay uses these insights to shed light on how the legalities of informal fishers shaped and were shaped by a legal project of the post-apartheid South African state that sought to reconstruct fisheries regulation through a liberal language of individual, universal and abstract rights in living marine resources. Based on an ethnographic survey of informal socio-legal practices triggered by South Africa’s transition to a neoliberal democracy in 1994, and a brief historical survey of colonial and apartheid forms of fisheries regulation, it argues that the post-apartheid rhetoric of liberal rights transforms without transcending prior cultures of fisheries regulation based on colonial violence and bureaucratic racism. Moreover, the legal claims of informal fishers to traditional (collective and territorially-specific) forms of access and control over coastal territories expose the dominant liberal rhetoric of individual fishers freely able to transcend historically structured hierarchies of race, class and gender as grounded in ongoing practices of violent dispossession and bureaucratic racism. In contrast to an ahistorical formal rhetoric of individualized rights and an abstract legal boundary between subsistence and commercial forms of fishing, informal fishers claim a political subjectivity as historically structured collectives of subordinated artisanal fishers forced to subsist in commercial territories as both unwaged subsistence producers and low-waged commercial workers.
Ken Salo is Assistant Professor of Environmental Policy at the University of Illinois Urbana-Champaign. His work is at the intersection of transnational legal processes, power disparities and the production of resource conflicts in Southern Africa’s postcolonial polities. He has published several articles related to subsistence fisheries in the South African Journal of Marine Science.