LAW AND SACRIFICE: TOWARDS A POST-APARTHEID THEORY OF LAW

Vol. 16 No. 9 (September, 2006) pp.668-671

LAW AND SACRIFICE: TOWARDS A POST-APARTHEID THEORY OF LAW, by Johan van der Walt. London: Birkbeck Law Press, 2005. 320pp. Cloth. £60.00/$198.00. ISBN: 1859419860. Paper. £23.50/$78.00. ISBN: 1859419860.

Reviewed by Michael J. Struett, School of Public and International Affairs, North Carolina State University. E-mail: mjstruet [at] ncsu.edu.

Johan van der Walt argues, in LAW AND SACRIFICE, for an understanding of law as an arbitrator amongst a plurality of interests, some of which can be protected, and some of which must be set aside in any given judicial ruling. But Van der Walt would have us understand law in such a way that the legitimacy of claims by both the winner of the suit, and the loser can be understood as having merit. Thus a decision cannot be said to render justice, but only to offer a ruling about how one just cause will be satisfied in a given case, while another (perhaps equally just) claim must go unfilled because it conflicts with the winner today. He makes a normative case that our understanding of law and its social operation should explicitly recognize the sacrifice inherent in any definitive action by the democratic state. Although the idea is certainly intriguing, one wonders whether losers of suits will feel particularly better or different about a judicial outcome if their loss is described as a justifiable sacrifice, rather than an imposition of justice. Van der Walt also seems to suggest that the new South African constitution contains provisions that make it particularly ripe for its judges to develop a “post-apartheid understanding of law” that would reflect this understanding of law as sacrifice. Ultimately the book does not compellingly deliver on this promise to analyze South Africa’s constitution in those terms.

At the risk of betraying my own conservative modern prejudices, I must complain that Van der Walt does not do all that he might in order to express his ideas with clarity and brevity. Like many who cite Derrida (1990), Van der Walt seems to have a knack for converting relatively simple ideas into long paragraphs with awkward sentence structures, vague pronoun references, and obscure scholarly and literary references that seem intended to hide his own meaning rather than to make it clear. This is in my view unfortunate, as it almost certainly limits the number of readers who will have the patience to persevere and form their own opinions about some of Van der Walt’s more fascinating insights.

The connections between different sections of the book are not always as clear as they might be. I discuss a few in turn.

Chapter One introduces the ultimately unfulfilled promise of the book, namely to demonstrate that the revolutionary provisions of South Africa’s 1996 constitution provide an empirical ground in which something like the normative understanding of law as sacrifice that van der Walt advocates might actually develop. South Africa’s constitution [*669] contains an interesting provision in Section 8 (2) that binds private natural and legal persons to comply with the various provisions of the Bill of Rights. This section was included because of the recognition that private wealth and power have the potential to allow a perpetuation of the injustices of the apartheid era. Van der Walt argues that, while early constitutional jurisprudence seemed to limit the transformative potential of this section of the constitution, more recent decisions have reopened the door. But after the initial chapter, van der Walt returns to this interesting empirical ground only rarely, and focuses instead on the development of his own, still embryonic, normative legal theory.

Chapter Four offers an interesting discussion of death penalty cases in South Africa. Van der Walt begins by assuring us that he intends to follow with rigorous jurisprudential analysis, and not escape that through poetic license. Still, the premise that the analysis in the chapter is demanded by an at first unnamed poet [the poet of the 20th century van der Walt suggests?] may discourage rather than encourage some readers. The death penalty jurisprudence at first seems an odd topic for the chapter, since the early chapters seem to suggest that the book would focus on the potential in South Africa’s constitution to guarantee the basic civil rights of individuals against the abuse of private power, over and above the power of the state. Given that perspective, it seems odd to focus on a topic that so clearly involves the power of the traditional state. Nevertheless, the actual analysis of South Africa’s post apartheid legal decisions on the death penalty is intriguing. Although I am not an expert in South African constitutional law, I take it from van der Walt that the decision in STATE v. MAKWANYANE held that the death penalty is illegal because of the ban in the 1993 Constitution on cruel and unusual punishment.

Van der Walt highlights that the consensus amongst the justices on this point obscured a wide range of different legal reasons in the various concurring opinions, particularly on the issue of whether capital punishment inherently violates the right to life and the right to dignity. Van der Walt’s analysis successfully shows the tenuous grounds for the majority’s conclusion, because it rests on the finding that capital punishment is cruel because it is arbitrary, and unnecessary because it provides no greater deterrent than life-time imprisonment. He notes that a future court would only need to find that death is a greater deterrent than prison in order to reinstate the death penalty in South Africa. In the later half of the chapter, van der Walt brings to bear his horizontal understanding of the application of the law, where the exercise of the death penalty by the state must be understood simply as one interest, (the family and friends of the victim) taking retribution against another interest, (the person convicted of a capital crime). Here van der Walt’s understanding of the law as sacrifice does have some normative analytical payoff. If the constitutional state is simply arbitrating between the plurality of conflicting interests in a democratic society, and it aims to take seriously the [*670] sacrifice of the losing side in any decision alongside the interest of the winner, then capital punishment is exposed as morally abhorrent because it leaves no space to recognize the sacrifice of the condemned. Thus, it is the finality of the death penalty that makes it an intriguing subject for analysis using van der Walt’s horizontal approach to a post-Apartheid Theory of Law.

In Chapter Five, van der Walt develops the theoretical and empirical case that Apartheid-era law was based on a conceptualization of pluralism that actually destroyed plurality by removing 80 percent of society from legal status in the vast majority of the territory of the country. Here, van der Walt engages with Agamben’s (1998) HOMER SACER to develop his own understanding of law as sacrifice. The problem with apartheid law, was the unacknowledged sacrifice of a majority of South Africa’s peoples. Van der Walt relates this in interesting ways to modern political theory and the conceptual transition from a state of nature to a contractually based system of private property rights, themes he developed initially in Chapter Three.

In Chapter Six, van der Walt reviews the fundamental contradiction of self-government, that if all are to govern themselves in liberty, they will inevitably tend to impede each other’s liberty. The imposition of coercion by the democratic constitutional states, judicially or otherwise, inherently means that citizen’s free-wills are in conflict. He begins with a lengthy summary of Duncan Kennedy’s discussion of this classical issue; whom Van der Walt sees as articulating, renouncing, and ultimately resuscitating the fundamental contradiction that our relations with others in society are ultimately incompatible with our own freedom (Kennedy 1997). He continues by reviewing the positions of Frank Michelman, John Rawls, Hannah Arendt, Jurgen Habermas, Carl Schmitt, and Immanual Kant, amongst others, on this issue. All of this serves to establish van der Walt’s premise that in any judicial decision, there is a sacrifice of one interest at the expense of another, thus destroying pluralism. Therefore, the post-apartheid theory of law should treat each judicial decision not as imposing justice, but as deciding in favor of one legitimate interest while sacrificing another legitimate interest for the time being.

Chapter Seven takes a decidedly existential turn, analyzing the rule of law and judicial decision-making as being analogous (or more exactly, a subset of) the problem of phenomenology that Heidegger (1978) confronted in BEING AND TIME. This line of analysis builds on the thesis in Kennedy’s work that any judge confronts a legal regime which can be made to justify almost any outcome, so the judge is free to decide based on his or her personal political preferences. The clearest statement of the author’s thesis in this chapter comes on p. 219, where he writes:

[T]he argument regarding the presence of a non-presence (which not simple absence, but a spectral if not eerie counter-mode of presence, as will become clear presently) at the heart of present meaning would be the heart of a post-apartheid theory of law. Sovereign [*671] attempts to lay down or represent the law as a simple and indivisible present moment of legal meaning is the essence of the expulsion that simply dismisses a claim to justice in favour of another, instead of setting it aside so as to keep it alongside the one favoured for the moment.

Thus van der Walt would have us understand law as being an admiration of the ruins of the pluralities of the various interests whose conflicts are settled by judicial action, even while we recognize that any present case could have been decided the other way.

Finally in Chapter Eight, van der Walt sets out to answer the question, “To what extent can post-apartheid adjudication really claim to restore plurality from its ruins, that is, from the memories and anticipations of plurality?” His answer seems to be to view judicial decisions as a coin toss, and to celebrate the indeterminacy of the time while the coin is in the air. Only then, van der Walt concludes, is reconciliation possible in the time before we know who will be required to sacrifice as a result of a particular judicial decision.

REFERENCES:

Agamben, Giorgio. 1998. HOMER SACER: SOVEREIGN POWER AND BARE LIFE. Trans. By D. Heller-Roazen. Stanford: Stanford University Press.

Derrida, Jacques. 1990. “Force of Law: The Mystical Foundation of Authority.” 11 CARDOZO LAW REVIEW 920-1045.

Heidegger, Martin. 1978. BEING AND TIME. Trans. by John Macquarrie and Edward Robinson. Oxford: Basil Blackwell. Original title Sein und Zeit (1927).

Kennedy, Duncan. 1997. A CRITIQUE OF AJUDICATION. Cambridge, MA: Harvard University Press.

CASE REFERENCE:

STATE v. MAKWANYANE (1995) 3 SA 391 (CC).

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