Porous Penality and the Myth of Liberal Punishment: Lessons from South Africa.

This article examines the intrinsic relationship between law, violence, and punishment, drawing on Walter Benjamin's "Critique of Violence" to argue that state-imposed punishment is inherently violent and logically contradictory. Using South Africa as a case study, it highlights how the state's legal authority to punish often overlaps with extralegal penal violence, disproportionately targeting the racialized poor across multiple jurisdictions, including prisons, police and prosecutorial systems, and civilian vigilante actions. The concept of "penal violence" is employed to encompass both lawful and unlawful violence aimed at enforcing law or punishing perceived transgressions, revealing porous boundaries between legal and extralegal violence. The article critiques the South African Constitutional Court's 1995 Makwanyane decision, which abolished the death penalty but legitimized harsh imprisonment, and details systemic violence within prisons, police brutality, prosecutorial discretion, and tolerated civilian vigilantism, all of which sustain racialized inequalities. It concludes that the supposed distinction between lawful and unlawful violence is a fragile legal fiction, especially in contexts marked by historical racial oppression and socio-economic marginalization.