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How Does Law Communicate?, Vol. 27 - 2020, No. 4

Guest Edited by Philippe-Joseph Salazar and Klaus Kotzé

, pages: 325-336

Free speech remains a crucial question at the heart of every democracy. In Western countries, citizens ranging from progressive fringes to “constitutional conservatives” defend it as frequently as staunchly. In this paper, I discuss the tensions and contradictions of some formulations of free speech. Among other, I draw on two authors converging in their critique from two very different perspectives: Alasdair MacIntyre and Stanley Fish. After having assessed the extreme conception of free speech and having shown its implausibility, freedom of speech is characterised as ideological in at least one definition of the word, that employed by legal realists. I claim that free speech is indeed an incomplete, context-sensitive right granted to someone on some occasions, often depending on extra-legal, historical, sociological, political and practical factors. This leaves the door open to interpretations of the right to free speech as ideological in other and more substantial ways, such as in the venues of Critical Legal Studies. I conclude by drawing implications applicable to our societies in their current conditions, with a special focus on the role of new media.

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, pages: 337-349

A close reading of two interrelated Executive Orders issued by the Governor of the U.S. State of Virginia exposes modern Law’s twofold paradoxes. While the first stems from perennial judicial-political disjunctive opposition between responsibility for self-preservation and collective wellbeing, the second paradox comes into view with the rise, in eighteenth-century North America, of homo oeconomicus who, newly endowed with rights has the (additional) right not to obey government orders. The entanglement of the two, enfolded in decisive contradiction accompanying the formation of Virginia together with the U.S., defines the fault line in all emergency regulation designed to protect populations in a pandemic that threaten lives and livelihoods. Framed by theoretical borrowings from late Foucault (on governmentality) that encompasses various strategic techniques for making society function equitable, and from Balibar’s discussions on “the individualist tradition,” I argue with Menke’s Critique of Rights that the Virginia Emergency Orders expose the historical precariousness of the (neo)liberal subject of interest, reiterating what Schmitt saw as Hobbes’ central political concern, namely that without “the mutual relation between Protection and Obedience” anarchy would threaten the order forged by contract.

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, pages: 350-356

Pope Benedict XVI’s resignation from the See of Rome, announced on 11 February 2013, has been interpreted as an eschatological gesture, most famously by the Italian philosopher Giorgio Agamben. This article reconsiders the evidence of eschatological thinking in the work of Joseph Ratzinger/Benedict XVI and revisits the declaration of resignation of 2013 considering the precedent set by Pope Celestine V’s abdication in 1294. It examines the ecclesiological context of this event and how this context is reflected in Ratzinger/Benedict XVI’s work. It concludes that Benedict XVI’s resignation cannot be understood without acknowledging his own interpretation of Saint Bonaventure’s moderate eschatology, ecclesiology, and theology of history. While focusing on the Church, the article also investigates the political reflections of Celestine V’s abdication and its Bonaventurian background. Via Dante and the reception of his work in the twentieth-century German-speaking context, it finally turns to the ways in which Benedict XVI associated the world with his resignation.

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, pages: 357-368

This article explores how law communicates socio-economic injustice under fundamentally different legal orders. It consists of a comparison of two appeal court judgment which are more than thirty years apart: Southern Insurance Association v Bailey (1984) and Komape v Minister of Basic Education (2020). Relying on the work of Johan van der Walt, the argument in relation to the Bailey case is that the judgment is characterised by a structural silence in relation to justice which, in turn, reflects a logic of unacknowledged sacrifice. This is a sacrifice of Aristotelian corrective justice at the altar of the exigencies of an apartheid political economy grounded in the exploitation of Black labour. The article then proceeds to an exposition of the recent judgment of the Supreme Court of Appeal in the Komape case. It is argued that, for several reasons, the Komape decision can be understood as the rudiments of a precarious resistance of justice to the socioeconomics of the new legal order. The judgment is explicitly characterised by an acknowledgement of sacrifice. The article concludes with a brief reflection, in the postscript, on the spectre of the unsacrificeable that the Komape judgment inevitably also raises.

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, pages: 369-379

Dylann S. Roof, white supremacist perpetrator of the Charleston massacre (2015) resolved to dismiss his lawyers and to represent himself. In the course of the proceedings he wrote extensively, keeping notes and diaries, and also writing directly to the Court, in addition to engaging in a dialogue with the judge. Using Bourdieu on the concept of “force of law” and Foucault on the concept of order of discourse, this essay proposes that Roof reclaimed his autonomy as a subject by developing a rhetorical strategy of communication, and thus affirmed his own voice within the “game” of judicial exchanges and positions of power. This essay serves also as a building block to understand white nationalist or supremacist discursivity.

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, pages: 380-392

Legal argumentation operates internally, in the construction of decisions, and externally, in the communication of those decisions. In this paper, I am interested in the external communication of legal decisions and the standards they assume. Treating “fine print” as a metonym that stands for much more than just contract disclosure, I explore what legal argumentation highlights and ways in which it marginalises features that a fully informed public should reasonably require for its own deliberations. In the course of this, I consider the nature of the “reasonable person” that the law addresses.

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, pages: 393-406

South Africa's invocation of its Disaster Management Act in response to the outbreak of the novel Corona virus, Covid-19, presents a clear juncture in its contemporary Constitutional order. The ways in which power functions and the dynamics and signification it conveys are central to how the state is commanded and how law is communicated. Under the State of Disaster, an abnormality assumes dominance. The techniques of power that are mandated under the Act charges the Executive to directly confront Covid-19, the named enemy and scapegoat. The presence of both the normative Constitutional order and an exception, following Carl Schmitt, creates an uneasy synthesis. It requires the Executive to claim authority. Yet, with the Act invoked in terms of Constitution and thereby the people remaining sovereign, Executive power remains stunted. This study of South Africa’s response to Covid-19 highlights the unresolved tensions present when Constitutional democracies declare emergencies. The Disaster sees South Africa enter a situation whereby it is confronted with unprecedented legal and political challenges. Its response conjures existential questions regarding its political development and legal structures.

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, pages: 407-419

This paper explores how European gender equality law communicates in the contemporary democratic public sphere. It will analyse several gender discrimination cases of the European Court of Human Rights as well as the Court of Justice of the European Union and how judgements of these courts communicated and defined the concept of gender equality, and redefined and broadened this concept from early cases such as Abdulaziz, Cabales and Balkandali v The United Kingdom to more recent cases such as Land Brandenburg v Ursula Sass and Leyla Sahin v Turkey. Trying to answer how the law communicates, this paper will show that the law is not a static and immutable system, independent of historical, political, social and cultural contexts. On the contrary, the legal system represents a dynamic structure, which is continuously revised, and which is socially, historically and politically constructed.

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, pages: 420-432

This study explores how South African television news reports communicate on sentence proceedings criminal cases involving violent acts against children. These kinds of crimes tend to attract public interest, and the outcomes can be a litmus test on the community's views concerning the justice system. By using cluster criticism to consider the discursive and non-discursive components of selected news reports, the study considers how television news broadcasts use factual and evaluative language and visuals when communicating court outcomes. The paper argues that these broadcasters tend to use evaluative language and visuals, as opposed to factual terms. This tendency can prevent news media from playing the educative role envisaged in the principle of open justice because instead of emphasising the factual aspects of sentencing proceeding, these reports focus on the outcome and the emotive aspects of the cases that entertain rather than educate.

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