This paper reflects on the experience of presenting a limit test case based on passion/provocation cases against a proposed ‘right to passions’ suggested by proponents of a sentimental jurisprudence. The limit case, presented at the 2010 CLC held in Utrecht, invited the audience to reflect on the human right to a provocation defence, a right enshrined in the criminal law as a concession to ‘human frailty’ in ‘crimes of passion’ for centuries.

Against the well-established critical rejection of rights a growing literature in the tradition of agonistic democracy asserts their emancipatory role in the struggles for social change. However, agonistic theorists, invested as they are in the idea of democratic innovation as a process of gradual ‘augmentation’ of existing rules, institutions and practices, fail to account for the ruptural capacity, and hence for the full radical potential, of rights. Using the performative approach, I develop a conception of rights claiming as a defiant (...) practice to express the ruptural dimension of certain forms of rights politics. I demonstrate how defiant rights claiming articulates immanent critique by declaring the incapacity of putative duty-bearer institutions and governments to uphold the claimed right due to structural constraints, thereby generating inevitable contradictions within the extant order and creating the necessity for an alternative one. Moreover, in order to fully capture the emancipatory potential and creative capacity of rights, this article argues for understanding certain forms of rights politics both as augmentation and rupture, taking the two to be different dimensions of the same radical democratic practice. I present the creative use of rights discourse by the Landless Workers’ Movement in Brazil and the transnational network of agrarian movements, La Via Campesina, as precisely such a combination of the practice of augmentation and defiant claims, which has led to the transformation of the right to food and land into the right to food sovereignty, demonstration of the structural embeddedness of rights violations in the existing global regime of food production and distribution, and authorisation of an alternative vision of the future. (shrink)

This article explores the powers and potentialities of imaginations of political community at the site of the museum in contemporary South Africa. Taking the District Six Museum and Constitution Hill as the empirical backdrop, I explore the ways in which memorialising practices at these sites bolster or deflate the exaltation of the post-1996 constitutional moment. This argument aligns closely with contemporary discussions by South African constitutional theorists about the role of monumentalism and counter-monumentalism. Indeed, I argue that memorialising techniques employed (...) at the District Six Museum offer a practice of memory-making that resists the fixed and limited boundaries proffered by the new South African constitutional discourse exalted at Constitution Hill. However, my critique does not include a call for a reform of the latter. Instead, I argue that the continuation of monumental memory practices at Constitution Hill, in juxtaposition to counter-monumental practices at District Six, serves a key role in revealing the limits of fixed notions of law and subjectivity in imagining past and future political communities. Drawing on Antonio Negri’s concept of constituent power, I argue that the juxtaposition of monumental and counter-monumental memorial practices exposes the illusion of the division between transcendent Power and immanent power. Finally, I turn to Emilios Christodoulidis’ conception of ‘strategies of rupture’ to consider ways in which this contradiction might be made to ‘persist’ through the site of the museum. Indeed, if the goal is to illuminate the illusion of transcendent power, the juxtaposition of memorialising practices between the two sites may serve as a platform for the truth of constituent power to be realised. (shrink)

Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is (...) understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Drawing on the 1969–1970 trial of eight radical activists accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago, the article argues for a performative re-conceptualization of sovereignty, the subject, and the law as indeterminate, unpredictable, and open-ended discursive formations. The article demonstrates how the accused, working with and against legal doctrines, norms, and discourses, rethought normative conceptions of sovereignty, law, and subjectivity as contingent power-knowledge constellations that are open, unpredictable, and un-closable. (shrink)