LL.D. / Please refer to full text to view abstract

Faculty of Humanities School of Humanities and Social Sciences 0200487m peter.mcinnes@health.gov.za / This dissertation looks at the attitudes, actions and opinions towards law, rights and political mobilisation, and in particular South Africa’s Bill of Rights, of a small band of activists associated with the Soweto Electricity Crisis Committee (SECC). It provides a snapshot of attitudes towards the Bill of Rights prevalent at the birth of a small organisation, which since 2000 has been active and at times successful in guaranteeing affordable electricity in South Africa’s largest township - Soweto. The SECC emerged as a real force in Johannesburg’s political life in the first half of 2001 as a result of the disconnection of up to 20,000 households per month by the state owned electricity utility, ESKOM. In response to these cut-offs Sowetans required urgent and appropriate forms of political action that would both provide immediate relief in terms of reconnecting disconnected households to the grid, wiping off unpayable electricity account arrears and, over the longer term, mitigating or transforming the policies that led to the cut-offs. This study explores to what extent the Bill of Rights enhanced grass roots political mobilisation. The study describes the potential mechanism through which rights discourse promotes community mobilization and provide some preliminary comments on the appropriateness of legal mobilization for political ends. This focus on electricity enabled understanding of how a community based organisation strategised social mobilisation when a particular demand, in this case an essential service - electricity - is not explicitly included in the South African Bill of Rights. Specifically it allowed the study of strategies adopted to prosecute similar demands surrounding access to water, which was explicitly included in the Constitution. In this case the SECC strategy was to deliberately obscure the boundaries between the two services. Rights talk was adopted by the SECC to serve political ends. The need of Sowetans for reliable, consistent and affordable supplies of electricity was transformed and demanded as of right by the SECC. Such a characterisation had obvious advantages to the SECC activists trying to build a movement that could challenge Eskom’s and the municipal government’s credit control policies. Rights talk provided a catalyst to engage interest in the campaign. On attracting an audience by ‘rights talk’ the allegation that service disconnection denied ‘fundamental human rights’ tapped into already existing feelings of hurt and humiliation. Rights talk legitimated peoples private feelings of pain and humiliation. The evolving sense of outrage as a result of this denial was then directed (hopefully) towards involvement in protests and meetings. The themes present in the writings of critical legal theorists on rights are explored. This study found that the key tenets of critical legal theory’s critique of rights such as the malleability and indeterminacy of legal discourse to suit your own ends; the tilt within the legal system to already powerful interests within South African society; and the risks of constitutional litigation to the democratic character of the struggle were all present in the minds of activists. Yet ultimately legal strategies were of ongoing interest to SECC activists because of the undeniable potential leverage they provided to promote social mobilisation and allow for real changes in harmful government policies through the assistance of the courts. These potential uses outweighed the identified attendant risks of a constitutional litigation strategy. This study concludes that rights can form an important component of the progressive activists arsenal of weapons against liberal capitalism. This is both understandable in a short-term strategic sense (as implied above in the SECC’s use of rights) as well as a more complex longer-term project of building a better society.

This thesis engages and scrutinizes critiques of rights developed in Critical Legal Studies scholarship and critical international law theory, specifically as formulated in the works of prominent and influential legal theorists Duncan Kennedy and Martti Koskenniemi, and draws on them to grapple with the changes that Swedish refugee and asylum policy went through during the fall/winter of 2015 and 2016. During this period, a series of drastic and far-reaching restrictions were enacted. Despite this, the Swedish government could still, albeit under immense criticism, claim a status for their policies as respecting human rights and adhering to the principles of international law. Against this background, the purpose of this study is to examine anew, using works of Kennedy and Koskenniemi, the relationship between the concept of human rights on the one hand and politics on the other, and how this relationship can be observed to have been (re)negotiated during the policy shift in Sweden. The thesis also raises the question of whether any general or uniform assessment of rights discourse is available in the works of the chosen theorists, and if so, of what this consists. The results show that the indeterminacy and contingency of rights frameworks, which is pointed to by both theorists, provides a suitable perspective from which to view the flexibility of the discourse, but this perspective is also seen as partially inadequate and in need of being supplemented with an account of what, or who, effects actual policy outcomes and thus determines the social meaning and contents of human rights. The theoretical tools developed by Koskenniemi help explain how the structural biases of the deciding institutions, the Swedish government and the EU, contribute to the re-definition of the content of refugee rights. Further, it is argued that both theorists have some difficulty in expounding in any clear and unambiguous way just what consequences their critiques might have for how rights discourses can and should be approached. An engagement with asylum and refugee rights from a critical legal theory perspective was thus shown as offering both problems and possibilities.

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Dominant theories of aboriginal rights articulate the relation between rights and identity in terms of a logic which treats identity as an irreducible good and rights as the instrumental means of its protection. However, identity claims and legal claims emerge in our use of language. Identity and the institutions in which identities are expressed and experienced are constituted in speech. A close analysis reveals the degree to which law and identity are a systemic imbrication of normative claims characterized by an innate indeterminacy. This indeterminacy renders all rights and identity claims contingent on their reception and validation by others.

Peace bonds are a legal tool of governance dating back to 13th c. England. In Canada, a significant change in the application of peace bonds took place in the mid-1990s, shifting their purpose from governing minor disputes between individuals to allowing for persons who have not been charged with a crime to be governed as if they had. Given the legal test for a peace bond has always been the determination of ‘reasonable fear’, the advent of these ‘specialized’ peace bonds suggests that the object of reasonable fear has changed. Despite their lengthy history, peace bonds have limited coverage in academic literature, a weakness compounded by a predominant doctrinal approach based in a liberal framework. The central inquiry of this thesis moves beyond this predominant perspective of ‘peace bonds as crime prevention’ by developing a governmental criminology, which deepens our understanding of the role of specialized peace bond law in contemporary society. Specifically, governmental criminology takes a Foucaultian critical legal studies approach, which acknowledges legal pluralism and sets out the historical context required for analysis. Ultimately, by unearthing underlying social, economic, and political power relations it is possible to critique the accompanying modes of calculation of fear and risk, thus challenging the regimes of practices that make specialized peace bonds possible. Specialized peace bonds merely manage the consequences of a criminal justice system limited by social, political, and economic circumstances, in a broader biopolitical project of integrating risky populations.

The dominant theoretical frameworks that define the ontological and epistemological limits of legal theory have marginalized or excluded alternatives visions on justice and social organization. Moreover, and in spite of being deeply embedded in specific political and ideological matrix, these frameworks have attempted to obscure the role of the political in the definition of its conceptual basis. The theoretical perspective that is developed in this article - and that is part of a long tradition of critical theories (in plural) - seeks to reveal the deep relation between Law and Politics and reformulate it analytically in order to propose a broad vision of the legal theory from Latin America. / Los marcos teóricos dominantes que definen los límites ontológicos y epistemológicos de la teoría legal han marginalizado o excluido visiones alternativas sobre la justicia y la organización social. Además, y a pesar de estar profundamente arraigados a una matriz política e ideológica determinada, estos marcos teóricos han pretendido oscurecer el rol de lo político en la definición de su base conceptual. La perspectiva teórica que se desarrolla en el presente artículo, y que es parte de una larga tradición de teorías críticas (en plural), busca revelar la profunda relación entre el Derecho y la Política, y reformularla analíticamente para proponer una visión amplia sobre la teoría legal desde América Latina.

This thesis consists in a critical analysis of international law’s traditional historical narrative about the prohibition of the use of force. Most contemporary textbooks teach that this prohibition was a creation of the twentieth century, and that beforehand States were free to resort to armed force against each other unconstrained. Positive international law, the story goes, was ‘indifferent’ to the use of force – it did not prohibit it but did not authorize it either, which meant that, in practice, States could do as they pleased. ‘Reality’ as it stems from historical sources, however, appears much more complex. In fact, not only did the vast majority of nineteenth century authors claimed war and measures short of war to be strictly ring-fenced by international law, but it also seems that States quasi-systematically felt the urge to justify their actions when they employed force against another nation. Starting from the observation of this discrepancy and using tools of history, sociology, anthropology and social psychology, the present research seeks to understand the roots of the ‘indifference’-narrative and how it became the commonly accepted version of the history of the use of force in international. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

Peace bonds are a legal tool of governance dating back to 13th c. England. In Canada, a significant change in the application of peace bonds took place in the mid-1990s, shifting their purpose from governing minor disputes between individuals to allowing for persons who have not been charged with a crime to be governed as if they had. Given the legal test for a peace bond has always been the determination of ‘reasonable fear’, the advent of these ‘specialized’ peace bonds suggests that the object of reasonable fear has changed. Despite their lengthy history, peace bonds have limited coverage in academic literature, a weakness compounded by a predominant doctrinal approach based in a liberal framework. The central inquiry of this thesis moves beyond this predominant perspective of ‘peace bonds as crime prevention’ by developing a governmental criminology, which deepens our understanding of the role of specialized peace bond law in contemporary society. Specifically, governmental criminology takes a Foucaultian critical legal studies approach, which acknowledges legal pluralism and sets out the historical context required for analysis. Ultimately, by unearthing underlying social, economic, and political power relations it is possible to critique the accompanying modes of calculation of fear and risk, thus challenging the regimes of practices that make specialized peace bonds possible. Specialized peace bonds merely manage the consequences of a criminal justice system limited by social, political, and economic circumstances, in a broader biopolitical project of integrating risky populations.