Description - Law and Sacrifice by Johann van der Walt
Law and Sacrifice rethinks the fundamental tenets of legal theory in view of key changes in South African law in the wake of the apartheid political and legal system. It takes the uniquely expansive protection of fundamental rights entrenched in the Constitution of South Africa of 1996 as its point of departure. The uniquely expansive aspect of the protection of fundamental rights in post-apartheid South Africa relates to the fact that the 1996 constitution not only protects the fundamental rights of individuals in South Africa against abuse of state power, but also against the abuse of power by private legal subjects in the private sphere. The latter protection, generally known in contemporary legal theory as the horizontal application of fundamental rights, is expressly provided for in section 8(2) of the constitution. According to section 8(2) the Bill of Rights binds natural and juristic persons to the extent that it is applicable, taking into account the nature of the fundamental right at issue and the duty imposed by that right.Law and Sacrifice addresses the failure of the South African judiciary to fully come to terms with the revolutionary potential of the horizontal application of fundamental rights stipulated in section 8(2) of the 1996 constitution.
The book then proceeds to articulate this revolutionary potential in terms of a radical formal and substantive equality before the law, an equality that Jean-Luc Nancy can be argued to articulate when he refers to the "horizontality of mortals". Nancy's thoughts on horizontality and plurality indeed play a central role in the jurisprudence developed in Law and Sacrifice. The book seeks to highlight the resonance between the horizontal application of fundamental rights and the notion of the horizontality of mortals. As regards the legal theory of our time, the book especially takes notice of key tenets in the work of Duncan Kennedy. However, Law and Sacrifice also relies fundamentally on other major thinkers of the twentieth and early twenty first century such as Martin Heidegger, Hannah Arendt, George Bataille, Emmanuel Levinas and Jacques Derrida to articulate a theory of law that moves beyond an understanding of apartheid in terms of a merely incidental racist abuse of power. It relies on these thinkers to articulate a theory of law that understands apartheid in view of the sacrificial logic and metaphysics that generally inform human societies and human communities.
It does so in an attempt to clarify and scrutinise Nancy's suggestion that humanity stands on the eve of a new and fundamentally different mode of communal life. One could refer in this regard to post-sacrificial and post-apartheid communities, if "community" is at all the word to still invoke in this regard.
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(216mm x 138mm x mm)
Birkbeck Law Press
Publisher: Taylor & Francis Ltd
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Author Biography - Johann van der Walt
Johan van der Walt is a Professor of Law at the Rand Afrikaans University, Johannesburg. He teaches private law and jurisprudence and his research focuses on the impact of the Constitution of South Africa of 1996 on South African private law.