In the wake of apartheid, Law and Sacrifice draws on the uniquely expansive protection of fundamental rights now entrenched in the South African Constitution to outline a new theory of law.
The South African Constitution not only protects the rights of people against abuses of power by the state, but also against abuses of power by private legal subjects. Drawing upon the work of contemporary thinkers such as Martin Heidegger, Hannah Arendt, George Bataille, Jacques Derrida Emmanuel Levinas and Jean-Luc Nancy, the author elicits the radical democratic potential of this 'horizontal' notion of rights. Johan van der Walt argues that apartheid must be understood as more than a racist abuse of power, and here he articulates its 'sacrificial logic'. It is in going beyond this logic, he maintains, that the truly democratic potential of the South African Constitution can be understood: in a radical formal and substantive equality that offers the legal basis for rethinking a post-apartheid future.
Combining a rigorous theoretical understanding with a subtle political engagement, Law and Sacrifice is a dazzling interrogation of the limits and possibilities of democratic pluralism. It will be of interest to political and legal theorists as well as to those who are concerned with South African law and politics.
目次
Preface xi Introduction 1
Part 1: Structural Horizontality 31 Chapter 1: Post-apartheid Constitutional Theory 22 Chapter 2: Horizontal application of fundamental rights and the resistance to neo-colonialism 55 Chapter 3: Re-reading the foundations of modern law 79 Chapter 4: Capital punishment and the horizontal application of the Constitution 101
Part 2: Temporal Horizontality 121 Chapter 5: Law as sacrifice 123 Chapter 6: Fundamental contradictions 149 Chapter 7: Towards a phenomenology of legal plurality 191 Chapter 8: Post-apartheid law and reconciliation 233
Appendix: The impossibility of two together when it matters: A law and literature excursion 251 Bibliography 265 Table of cases, statutes and reports 281 Index 283
