Law, History and Political Violence
Autumn Critical Assignment
Professor Stewart Motha
Word Count: 2600
“Some argue that addressing historical violence involves remembering and forgiving.
This does not address what needs to be undone before society can be reconstituted”
After violence has occurred, applying normative Law, we seek to reconstitute our societies by reconstructing them justly. This requires a process of remembering that which has happened, and to make pardon where possible. Does this process undo the violence that has been done, is it enough to allow the reconstitution of our societies. Does the normative law have the capacity to make forgiveness.
In attempting to answer the essays statement in the question, supra, this short paper will direct discussion to the relationship between historical violence and the human condition to forgive, and to remember, in regards to the normativity of the Law. Via discussion of Jacques Derrida’s piece, ‘On forgiveness’1, examples of the South African Truth Committee on apartheid2 and the consequential case of The Citizen v McBride 20113, the article will explore where the capacity to ‘forgive’ remains, asking such questions as, is it enough to merely remember and to forgive the violence that has been done, can normative law forgive. Should the law forgive?
Normativity of Law & Forgiveness
In his piece, ‘On Forgiveness’, Jacques Derrida makes the statement of aporia, ‘forgiveness should not be normative’4, that, ‘forgiveness forgives only the unforgiveable’5. Pointing out the paradoxical, contradictory nature of the ‘unforgivable’. That is to say, that it may only appear possible to truly forgive the moment it seems impossible6.
If such a statement is true, this would suggest little to no room for positive law to make judgement upon forgiveness. Derrida convincingly makes the case for this assertion by making the distinction between the conditional and unconditional forgiveness, calling this an inseparable complexity7. Derrida does this by drawing upon the powerful works of the French philosopher, Vladimir Jankélévitch8. Derrida points towards Jankélékvitch’s assertions, that unless the forgiveness is asked it cannot be given. He contests, he has difficulty following this presupposed ‘conditional’ logic, claiming that Jankélévitch neglects to admit the contradictory ‘unconditional forgiveness’9.
In this philosophical duel, one could argue to no end. Yet to some minds, the question would remain, does the normativity of positive law follow either of these two intellectual’s formulae? Can the normativity of positive law forgive? Should the law forgive?
In his ‘Pure Theory of Law’, Hans Kelsen tells us that normative law (Is) the objective will of the legislative, of a subjective meaning, an “ought”10. Through this process of positive law making a normative legal order is conceived to coerce the citizen to obey certain behaviour. More precisely, that is to say, ‘that certain coercive acts ought to be executed under certain conditions’11. It is important to point out that the rule of normativity of law is an interpretation of the subjective ‘ought’, given the objective meaning. This is important to note as it validates the more human subjective value, by combining it with a bona-fide objective. In this way, Kelsen makes the distinction between the subjective command of the ‘gangster’12, the highwayman or the ‘robber’13. Kelsen points out that there is no difference between these actors and the legal organ14. Yet only through the elected legislative giving the subjective ‘ought’ an objective meaning, can it be said to be a valid command.
Imagine if you will, applying this positive process in which the normative law is made to Derrida’s paradox of the ‘unforgivable’. Even still, imagine setting it to Jankélévitch’s ‘conditional logic’, where unless the perpetrator consciously prays for repentance, forgiveness cannot be given.
Unlike Jankélévitch’s condition of repentance, the normative law does not place the condition of ‘pardon’ upon admittance of conscious intention. Yes, it is true that the plea of guilty intention may go some way to reducing a sentence, or securing a parole. Yet it does not mitigate the act that has been done, nor does it resign the perpetrator to perpetual conviction. So as we are innocent until proven guilty, so is our conviction spent upon time served. Is this to say that the act did not occur, wiped from history, never to be spoken of or ‘remembered’ again. No. Previous convictions are required to be declared in many public instances. Does this then also mean that we are thus commanded by the normativity of the Law to forgive as the law may pardon? No again. The law cannot command forgiveness of the citizen, nor should it ever. Hearts do not open upon command. The human condition to forgive is driven by the conscious/unconscious, the known-unknown15, awareness, that at any given time we are liable to make mistakes, errors, terrible ones, whether intentional or not16. To commit acts which are punishable, but also pardonable.
So here we are left with the distinction between the human subjective condition to forgive, and the objective juridical capacity to pardon.
In his book, ‘the Science of Right’, Immanuel Kant devotes a short, yet important, section to the ‘majesty’ of the laws capacity to pardon 17. Kant claims that the right to pardon (jus aggratiandi) is the sovereigns most delicate of all rights, ‘to set forth the splendour of his dignity’18. It ought not to be exercised by subjects against each other, lest they be exempt from punishment for crimes committed19. Kant’s mode and measure of punishment for crimes committed, is the public principle standard of ‘equality’. It is the law’s right of retaliation (jus talionis). One whom steals from another, also steals from himself and so on. Thus it can be said that a crime committed is the heritage of all within society. This is not the same as Jankélévitch’s condition of meaning, that is to say, without a ‘punishment proportionate to the crime, the punishment becomes indifferent’20. This “like with like” principle applied in such a manner as Jankélévitch would have it, would mean no forgiveness for the unforgiving.
Yet in its normative function, the law punishes or pardons via a valid objective. Natural punishment (poena naturalis) does not weigh upon the mind of the legislative21. The normativity of law is the tool in which we shape society, build it. It is not the sovereign.
In modernity, as was different from the contemporary time of Kant, We (the people) are now the rightful sovereigns of the city, who dwell inside and outside of the law. This is precisely because we are able to forgive or not to forgive, without the permission, authorisation or commandment of normative law22.
Is it not true, have you not heard it been said, that we are governed by consent23. The law is not ‘barren’ in its approach to forgiveness, nor does forgiveness present a threat to the workings of the law24. On the contrary, while forgiveness is given free and gratis by the citizen, unilateral, without requirement of reciprocity25, the law employs the more economic objective mode and measure of pardon, in which to juridically declare a conviction spent.
Normativity of Law and Remembering
In 1948, with the ascension of the Dutch Afrikaans Nasionale Party to political power within South Africa, a racially motivated regime of Apartheid26 was violently enforced upon black South African citizens. As a consequence of this Apartheid regime, there was much civil resistance by many different groups within South Africa. Mostly this resistance was non-violent, taking the forms of political protests, strikes and demonstrations. One main group, called the African National Congress (ANC), had within their ranks a fellow comrade named Robert McBride. McBride commanded the Umkhonto weSizwe (MK)27, a military arm of the (ANC), who, on the 14th June 1986, were responsible for the infamous Durban bombing, where a bomb was planted inside a car outside the Mangoo ‘Why Not’ bar on Durban beach. This bombing resulted in the killing of three women and the injury of many others. McBride was later caught and convicted of murder and sentenced to death. In 1991, whilst on death row, McBride was given a reprieve.
In the aftermath of this historical violence that occurred from all sides during this Apartheid period, the government of National Unity set up the South African Truth and Reconciliation Commission (TRC)28 in order to, “provide for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed…”29. In order to establish a ‘complete picture’, and to afford victims the opportunity to relate to the violations they suffered, the Commission would also grant amnesty to persons making full disclosure of their acts of violence, associated and committed with a political objective during the course of the conflicts30. Amnesty granted to any such persons, would not be criminally or civilly liable for acts, omissions offences in relation to politically motivated violence31.
In 1992, having been released from prison on declaration that his offenses were politically motivated, Robert McBride applied for and was granted this amnesty by the Commission on full disclosure of his acts committed32. By 2003, McBride had put himself forward as a candidate for head of the metropolitan police in the municipality of Ekurhuleni. The Citizen newspaper ran articles in response to this candidacy33, claiming that Mr McBride was a “murderer”, a “criminal” and as such was “blatantly unsuited” for the candidacy. McBride’s responded by suing the Citizen newspaper for defamation, contending that articles by the citizen were libellous, as under s 20(10) of the PNUR 199534, his conviction for murder should not be deemed to have taken place.
The case before the local divisional High Court found in favour of McBride for defamation. The Citizen appealed to the Supreme Court of Appeal (SCA)35, where again a majority decision was upheld in favour of McBride for defamation. The (SCA) is a court of last resort, unless in cases of constitutional matters. The Citizen appealed to Constitutional Court, where Cameron J gave judgement that the issues at hand were clearly constitutionally implicated36, and so would hear the appeal. In his majority judgement, Cameron J found in favour of the Citizen, stating that, amnesty granted under the Reconciliation Act did not make the fact that Mr McBride committed murder untrue37. The Act also did not prohibit frank public discussion of his act as “murder”. Nor did it prevent his being described as a “criminal”.
This example of application of normativity of law to remembering, illustrates an attempt to reconstitute an entire nation after such terrible historical violence has occurred, by combining the subjective value of reconciliation with the bone-fide objective of amnesty. This allowed a space to provide investigation, to establish a complete picture of the violence committed. Truth could be disclosed, allowing victims to reconcile with their suffering, and perpetrators the opportunity to speak of their acts, without retaliation fuelling further conflict. In this way, all who live within the city would have claim to reconciliation and reconstitution.
The case of McBride brings into sharp focus the reality, that once violence has occurred, it cannot be undone. No amount of reconciliation can make a fact untrue. Just as law, (no matter how objective), cannot command the citizen to forgive, no amount of law can command a citizen to forget.
Historical violence, wherever and whenever it may take place, is the heritage and responsibility of all who live within the just city. In the same vein as Derrida’s paradoxical contradictory nature of the unforgiveable, none have claim to forgiveness, all have claim.
The capacity of forgiveness lies upon the feet of all, yet it is not and nor should it ever be the command of the Law to forgive. Forgiveness is the domain of the inexpiable, the irreparable. It is not the concern of normative Law. The Law may pardon or give amnesty to bring about the expiable, but it does not concern itself with the subjective value of what is irreparable. What is done cannot be undone. Such matters are beyond the scope of the judiciary or legislation.
The temple of morals and ethics is the crucible in which the law may be forged. The separation of law from ethics and morals, lies within the command. Where the law commands, that is to say, an ought, this must be given via a valid objective, not via a subjective will or opinion. In this way, the citizen is free to forgive and to remember as they wish, and the law is free to be used as the tool with which to reconstruct the city after violence has occurred.
For those who would apply logical conditions to their capacity for forgiveness should do so with caution, as their reckoning may come with no forgiveness of the unforgiving.
Table of Cases
The Citizen v McBride 2010 (4) SA 148 (SCA)
The Citizen 1978 (Pty) Ltd and Others v McBride 2011 ZACC 11. Case CCT 23/10.
Promotion of National Unity and Reconciliation Act 34 of 1995
Articles and Books
Derrida, J. ‘On Cosmopolitanism and Forgiveness’, (1st edn, Routledge) 2001.
Husserl, E. ‘Ideas: General Introduction to Pure Phenomenology’ 1913, (Routledge Classics) Routledge; 1 edition (2012)
Jankélévitch, V. ‘L’Imprescriptible’ Pardonner? Dans L’Honneur Et La Dignit’ 1971 Éditions du Seuil, translated into English by Ann Hobart in, ‘Should We Pardon Them’ 1996, Critical Inquiry, Vol. 22, No. 3 (Spring, 1996), pp. 552-572. The University of Chicago Press. ‘Le pardon’ 1967
Kant, I. ‘The Science of Right’. (Kindle Ed) 2015 Wallachia Publishers, Pronoun 1790
Kelsen, H. ‘Pure Theory of Law’, (Kindle Ed) Translation from the Second German Edition by Max Knight. Berkeley: University of California Press, (Reprinted 2002, 2009) Lawbook Exchange, Ltd. 1967
Minkkinen, P. ‘Resentment as Suffering: On Transitional Justice and the Impossibility of Forgiveness’, Law & Literature, Vol 19, No. 3, (Fall 2007), pp 513-532. Taylor & Francis Ltd on behalf of the Cardozo School of Law
Motha, S. “Mistaken Judgments” in Sarat, A., Douglas, L. & Umphrey, M (eds.) Law’s Mistakes.
(Amherst: University of Massachusetts Press). (2016)
Websites and Blogs
https://www.youtube.com/watch?v=K_ujk4vld9A. ‘Derrida’, Dick, K. Amy Ziering Kofman, A. (Zeitgeist Films) 2002
http://www.justice.gov.za/trc/index.html. The South African Truth Commission, ‘Truth and Reconciliation Commission’, Truth the Road to Reconciliation
1 Jacques, Derrida. ‘On Cosmopolitanism and Forgiveness’, (1st edn, Routledge 2001).
2 The South African Truth Commission, ‘Truth and Reconciliation Commission’, Truth the Road to Reconciliation. http://www.justice.gov.za/trc/index.html.
3 2011 ZACC 11 Case CCT 23/10.
4 Supra (n 1), at p 32.
5 Ibid, p 32-33.
6 Ibid, p 37.
7 Supra, (n 1), p 44. Derrida actually uses the words ‘irreducible’ and ‘indissociable’.
8 Vladimir, Jankélévitch. ‘L’Imprescriptible’ Pardonner? Dans L’Honneur Et La Dignit’ 1971 Éditions du Seuil, translated into English by Ann Hobart in, ‘Should We Pardon Them’ 1996, Critical Inquiry, Vol. 22, No. 3 (Spring, 1996), pp. 552-572. The University of Chicago Press. ‘Le pardon’ 1967.
9 Supra, (n 1), p 34.
10 Hans, Kelsen. ‘Pure Theory of Law’, Translation from the Second German Edition by Max Knight. Berkeley: University of California Press, 1967. Reprinted 2002, 2009 Lawbook Exchange, Ltd (Kindle Ed), p 268. An “ought” meaning a command.
11 Ibid, chapter 6c, p 895.
12 Ibid, chapter 3b, p 278.
13 Ibid, chapter 6c, p 906.
15 The known unknown is the ‘Other’, the arrival of the unpredictable. This is what Derrida calls the ‘real future’. ‘Derrida’, 2002 biographical/documentary by Kirby Dick and Amy Ziering Kofman. Distributed by Zeitgeist Films, https://www.youtube.com/watch?v=K_ujk4vld9A, at 1:20 minutes. For further discussion on the phenomenology of the ‘Other’, see Edmund Husserl, ‘Ideas: General Introduction to Pure Phenomenology’ 1913, (Routledge Classics) Routledge; 1 edition (2012).
16 Whatever the final distinction of mistakes and errors may be, both, without doubt traverse the conscious/unconscious. For further discussion on the distinction of ‘error’ and ‘mistake’, see S, Motha. ‘Mistaken Judgements’ (2016) in Sarat, A., Douglas, L. & Umphrey, M (eds.) Law’s Mistakes. (Amherst: University of Massachusetts Press).
17 Kant, Immanuel, ‘The Science of Right’, 1790. Wallachia Publishers, Pronoun 2015 (Kindle Ed), chapter 49, The Right to Punishment and Pardon.
20 Supra, (n 1), p 36.
21 Supra, (n 17), p 68
22 Supra, (n 10), p 223.
23 See George Sabine, ‘A History of Political Theory’ 1937, Thomson Learning; International 2 Revised ed edition (April 1980). Also see, Article 21.3 of the Universal Declaration of Human Rights, “The will of the people shall be the basis of the authority of government”.
24 Panu, Minkkinen, ‘Resentment as Suffering: On Transitional Justice and the Impossibility of Forgiveness’, Law & Literature, Vol 19, No. 3, (Fall 2007), pp 513-532. Taylor & Francis Ltd on behalf of the Cardozo School of Law, p 514.
26 Literally meaning, ‘separateness’.
27 Meaning, “spear of the nation”.
28 Herein after known as the “Commission”.
29 Via the Promotion of National Unity and Reconciliation Act 34 of 1995.
30 Ibid, chapter 2, 3(1)(b).
31 Supra, (n 29), chapter 4, 20(7)(a)(b)(c) & 20(10).
32 McBride gave his Section 29 evidence to the Commission inquiry in 1997. His amnesty was granted in 2001.
33 One such editorial called, “Here comes McBride”.
34 Supra, (n 29).
35 The Citizen v McBride 2010 (4) SA 148 (SCA).
36 Supra, (n 3), at 7.
37 Ibid, at 72, 96.