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ACADEMIC ESSAY

 

AGAAT’S LAW
Reflections on Law and Literature with reference to Marlene van Niekerk’s novel Agaat

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Johan van der Walt

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LAW AS SACRIFICE

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Johan van der Walt

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PSYCHE AND SACRIFICE
An essay on the time and timing of reconciliation

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Johan van der Walt

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SOVEREIGNTY AND SACRIFICE

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Johan van der Walt*

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AGAAT’S LAW
Reflections on Law and Literature with reference to Marlene van Niekerk’s novel
Agaat
Johan van der Walt

INTRODUCTORY fragment

This article is based on a public lecture that I presented at the University of the
Witwatersrand in August 2007. The lecture formed part of my teaching and research
involvement with the Wits Law School as a Bram Fischer Fellow during the month of
August 2007. The invitation to become a Bram Fischer fellow and to give a public
address in memory of Bram Fischer posed a daunting challenge. How is one to
honour the memory and legacy of Bram Fischer, Bram Fischer the boere communist,
after long reigns of communisms that, instead of vindicating the thinking of Marx,
only served to discredit it; instead of destroying the state, only served to inflate the
state and entrench it in every imaginable walk of life; instead of terminating the law in
the name of a classless humanity, only served to dehumanise the law?

It is clear that this question haunts and perhaps even dominates the last pages of
Stephen Clingman’s biography of Fischer. Having lent credence to Laurens van der
Post’s comments on the “unreality of communism” and the “unreality of Fischer”
regarding this unreality of communism, Clingman imputes a certain moral blindness
and lack of understanding to Fischer regarding the “morally compromised ideology”
of communism.

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LAW AS SACRIFICE

INTRODUCTORY fragment

The inquiry into law as sacrifice that follows is again prompted by the question of
plurality and the political. Once again we take our cue from Hannah Arendt:
“[P]lurality is specifically the condition - not only the conditio sine qua non, but the conditio per quam - of
all political life.

In what follows, we shall again pursue the matter of politics and plurality in terms of the
coming together of more than one.2 We shall be scrutinising two moments of the
political, the moment of coming together and the moment of the more than one. We shall
be scrutinising the movement that lets be and abandons these moments, in one
movement.

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PSYCHE AND SACRIFICE

INTRODUCTORY fragment

I. KANT
The issue of “reconciliation” is fundamental to the modern understanding of law. We can
take the Kantian definition of law as our point of departure in this regard. The law, Kant
avers, is the total set of conditions under which the external liberty of one individual can
be reconciled with the external liberty of other individuals under a general law of liberty.1
The law does not require that one make the liberty of another the goal or maxim of one’s
conduct. This Kant argues, is required by the categorical imperative, that is, by morality,
but he draws a clear line between morality and law.2 The second maxim of the moral law
or the categorical imperative requires that a human being must be treated as an end in
him- or herself and never as a means to an end.3 Full compliance with the categorical
imperative and therefore also with this maxim, averred Kant, would require a holiness
that is not possible for mortal human beings. Hence the postulate of the immortality of the
soul to make possible an unending moral strive towards complying with the categorical
imperative.4 Moral fulfilment, according to Kant, is never to come for mortals.
However, the law, Kant argued, does not require full compliance with the categorical
imperative. The law does not require that one make the liberty of another the goal of
one’s action. It only requires that one do nothing that interferes with the liberty of
another. And this, Kant says, is quite possible. One can completely fail to consider the
liberty of another in one’s actions and even deliberately aim to undermine the liberty of
another and still leave the other’s liberty intact, that is, still act lawfully.

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SOVEREIGNTY AND SACRIFICE

INTRODUCTORY fragment

A friend once told me a story about her little boy making these roaring sounds
somewhere in the house. When she asked him what he was doing, he replied: I am
scaring this spider before I trample it to death.


My engagement with Agamben will concern the difference and crossing between this
roaring and trampling, this scaring and squashing to death. Perhaps there is even the
cleaning of the shoe or the foot with or without shuddering to consider here.


According to Agamben, homo sacer is the one who can be killed, but he cannot be
sacrificed. And for him sovereignty relates to or is constituted by this non-sacrificial
killing.1 Sovereignty concerns the power to determine or simply manage, manage merely
technically what is to be done with life that has no or no longer has meaning in excess of
mere life. Sovereignty would be managing merely technically the ultimately uninteresting
managerial decision, or non-decision rather, to continue or discontinue an instance of
bare life. Sovereignty would be the trampling of the spider without the need or the wish
to scare, the wiping of a shoe without shuddering.

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This project is funded by the Leverhulme Trust, Artist in Residence Grant.

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