Law, History and Political Violence
Autumn Critical Assignment
Professor Stewart Motha
“Some argue that addressing historical violence involves remembering
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 the 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 &
In his piece, ‘On Forgiveness’, Jacques Derrida makes the
statement of aporia, ‘forgiveness should
not be normative’4,
that, ‘forgiveness forgives only the
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
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, the distinction between forgiveness
of the ‘man’ (person) and the act itself7.
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 then 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 mean also then 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
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
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
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
the law employs the more economic objective mode and measure of pardon, in
which to juridically declare a conviction spent.
Normativity of Law
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 sixty nine other people28.
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)29 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…”30.
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
Amnesty granted to any such persons, would not be criminally or civilly liable
for acts, omissions offences in relation to politically motivated violence32.
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
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 candidacy34, 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,
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. In this way, all who 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 to law can command a citizen
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
As we strive to reconstruct the ‘Just City’ after historical
violence, we must take care, not to become that which we seek to destroy. That
is, that which would destroy our city.
1 Derrida, Jacques, ‘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
8 Jankélévitch, Valdamir, ‘L’Imprescriptible’
Pardonner? Dans L’Honneur Et La Dignit’, ‘Le Pardon’, citation
10 Kelsen, Hans. ‘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 Citation
16 Whatever the final distinction of mistakes and errors
may be, both, without doubt traverse the conscious and unconscious. For further
discussion on the distinction of ‘error’
and ‘mistake’, see Motha, S,
‘Mistaken Judgements’, (2016)
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
21 Supra, (n 17).
22 Supra, (n 10), p
24 Minkkinen, Panu, ‘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.
Literally meaning, ‘separateness’.
Meaning, “spear of the nation”.
Supra, (n 30).
Herein after known as the “Commission”.
Via the Promotion of National Unity and Reconciliation Act 34 of 1995.
Ibid, chapter 2, 3(1)(b).
Ibid, chapter 4, 20(7)(a)(b)(c).
McBride gave his Section 29 evidence to the Commission inquiry in 1997. His
amnesty was granted in 2001.
One such editorial called, “Here comes
The Citizen v McBride 2010 (4) SA 148 (SCA).
Supra, (n 3), at 7.