Toward a Performative Epistemology of Law and Resistance

289 Pages·2014·1.84 MB·English

Allo, Awol Kassim (2013) Law and resistance: toward a performative
epistemology of law. PhD thesis.

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Law and Resistance: Toward A Performative Epistemology of Law

Awol Kassim Allo

Submitted in fulfilment of the requirements for the Degree of PhD in
Law

School of Law
College of Social Sciences
University of Glasgow
September 2013
ii

Abstract

This thesis is a genealogical inquiry into law’s conditions of possibility for
political critique as/and resistance. Questioning law’s claim to normativity, it
argues that law is a performative discourse that generates and presents its
normative materiality through performative iterations. From the constitution of
sovereignty to the formation of the legal subject; from the rituals of legislation
to ceremonials of adjudication, there is a performative logic that contingently
conditions law’s generation of the normative reality of the present. Arguing that
law’s normative representation and expression of sovereignty, the subject, and
politics closes the possibility for change and becoming; contesting law’s claims
to rationality, objectivity, neutrality, autonomy, and universality; it puts forth a
performative epistemology of law that is attentive to power and discourse; and
to the production of knowledge’ and the ‘generation of truth.’ Calling attention
to law’s entanglement with power and the violence of exclusion and domination;
it brings historical inquiry into the orbit of law and legality. The thesis presents
the political trial both as: (1) a moment that subverts law’s normative claims to
rationality, autonomy and value-neutrality; and (2) as a power-knowledge
formation capable of accommodating fresh articulations of hegemonic norms.
Drawing on Foucault’s conceptions of power and resistance, I will offer
strategies and tactics that: (1) formulate and circulate strategic knowledges of
power in law; and (2) open up new sites of struggle for what I call a
performative-genealogical intervention.
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Table of Contents
Abstract ………………………………………………………………………………………………………………..ii
Acknowledgement ……………………………………………………………………………………………….vi
Author’s declaration ……………………………………………………………………………………………vii
Chapter One ………………………………………………………………………………………………………….1
1. Introduction ............................................................................ 1
1.2. Research Objective ............................................................ 5
1.3. Methodology .................................................................... 6
1.4. Outline .......................................................................... 10
Chapter Two …………………………………………………………………………………………………….15
2. Law and Resistance: Beyond a Normative Conception of Law ................ 15
2.1. Introduction .................................................................... 15
2.2. Law and Resistance ........................................................... 16
2.2.1. Between Legality and Legitimacy ...................................... 17
2.3. Foundations, Intelligibility, and the Logos of Politics ................... 21
2.4. Gate-keeping Legal Technologies of Power ............................... 25
2.4.1. The Judicial Apparatus .................................................. 30
2.5. Beyond a Normative Conception of Law and Sovereignty ............... 33
2.6. Conclusion ...................................................................... 40
Chapter Three ………………………………………………………………………………………………….42
3. Law and Resistance: Toward a Performative Epistemology of Law ........... 42
3.1. Introduction .................................................................... 42
3.2. Performativity: The Genealogy of the Concept .......................... 43
3.2.1. Performativity as Deconstruction ...................................... 45
3.2.2. Law’s Performativity .................................................... 50
3.2.3. The Performative Constitution of Sovereignty ....................... 53
3.2.4. The Performative Constitution of the Subject ....................... 59
3.2.5. The Performative Generation of the Legal Person .................. 62
3.3. Toward a Performative Epistemology of Law ............................. 66
3.4. The Transformative Promise of a Performative Epistemology.......... 72
3.5. Conclusion ...................................................................... 75
Chapter Four .............................................................................. 77
4. Law and Resistance: Toward a Performative Epistemology of the Political
Trial ......................................................................................... 77
4.1. Introduction .................................................................... 77
4.2. The Political Trial: From Domination to Resistance ..................... 80
4.3. Beyond a Normative Conception of the Political Trial ................... 88
4.4. Toward a Performative Conception of the Political Trial ............... 91
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4.5. The Power-Knowledge-Discourse Constellation in the Courtroom ..... 99
4.5.1. The Political Trial as a Site of Domination and Resistance ....... 105
4.6. Conclusion ..................................................................... 110
Chapter Five .............................................................................. 112
5. Law and Resistance: Toward a Performative Genealogy of Resistance in Law
112
5.1. Introduction ................................................................... 112
5.2. Law, Resistance, and the Subject ......................................... 113
5.3. Resistance in the Name of Law and Justice .............................. 116
5.4. Law, Power, and Resistance ................................................ 118
5.5. Strategies of Resistance: From Agonism to Genealogical Critique .... 124
5.5.1. Agonism: Contestations and Transgressions ......................... 124
5.5.2. Genealogical Critique as/and Revolutionary Agitation ............ 126
5.5.3. Toward a Performative Conception of Resistance ................. 132
5.6. Strategic Thinking in Law: Carving out Space within Space ........... 134
5.7. The Transformative Potential of Performative Resistance in Law .... 139
5.7.1. The Performative-Genealogical Paradigm in Action ............... 142
5.8. Conclusion ..................................................................... 147
Chapter Six ………………………………………………………………………………………………………152
6. ‘Black man in the white man’s court’: Nelson Mandela in Pretoria ......... 149
6.1. Introduction: Apartheid on Trial ........................................... 149
6.2. Performative-Genealogies in the Old Synagogue Court ................ 151
6.3. Jurisdictional Objections: Opening up Space within Space ........... 157
6.4. From Epistemic Injustice to the Ethic of Coexistence .................. 161
6.5. White Justice: ‘Black man in a White man’s Court’ .................... 165
6.6. Between Law and Justice: Law’s Illegality and Immorality ............ 170
6.7. Conclusion ..................................................................... 176
Chapter Seven ……………………………….……………………………………………………………… 180
7. Terrorism and Resistance on Trial: Marwan Barghouti in Tel Aviv ........... 177
7.1. Introduction: The Road to Tel Aviv ........................................ 177
7.2. The ‘Politics’ in Barghouti’s Trial: From Domination to Resistance .. 180
7.3. Barghouti in Tel Aviv: Between a Terrorist and a Freedom Fighter .. 184
7.4. The Performative Generation of the Materiality of Terrorism ........ 188
7.5. The Performative Generation of the Materiality of Resistance ....... 195
7.6. Barghouti in Tel Aviv and Mandela at Rivonia: Generative Historicity
204
7.7. Between Moses in Egypt and Barghouti in Tel Aviv ..................... 210
7.8. Conclusion ..................................................................... 214
Chapter Eight …………………………………………………………………………………………………….220
8. Slave-Owners as Founding Fathers: Counter-history in the Courtroom ..... 216
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8.1. Introduction ................................................................... 216
8.2. The Black Panther Party: Counter-history as Mode of Critique ....... 217
8.3. Background: Setting the Scene ............................................. 224
8.4. ‘Calling to Account’: The Usurpation of Speaking Position ............ 227
8.5. Between ‘Slave-Owners’ and ‘Founding Fathers’ ....................... 232
8.6. Liberationist Counter-history as Strategy of Rupture ................... 238
8.7. The Legal Register as an Archive of Liberationist Counter-history ... 242
8.8. Conclusion ..................................................................... 251
Chapter Nine ………………………………………………………………………………………………… 258
9. Summing Up: A Performative Epistemology of Law and Resistance . . . . 253
10. Bibliographic Materials ........................................................... 266
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Acknowledgement

According to some preeminent thinkers whose ideas animate this thesis, the
individual person is nothing more than a contingent articulation of a power-
knowledge assemblage that conditions her or him. Completing a thesis offers
the occasion to look back and reflect on the self according to this axiom.
Looking back, it is evident that I am indeed a product of a series of assistances,
mentors, debts, books, supervision sessions, seminars, conferences and the
many individuals, institutions, friends and family who participated in these
formative acts. They have all provided the raw material for this thesis.

This thesis would not have been possible without the funding by Glasgow
University under the Kelvin/Smith Scholarship scheme. I thank the University of
Glasgow for the generous financial support. I am enormously indebted to my
supervisors Professors Emilios Christodoulidis and Alison Phipps for their
unyielding engagement and intellectual inspiration. I owe a great gratitude to
Professor Emilios for introducing me to critical theory and providing a fantastic
guidance throughout this project. I hugely appreciated your unwavering support
on the Rivonia project and your commitment to fostering a critical legal
community in the school. I am equally indebted to Professor Alison for
introducing me to the field of performance and theatre studies – somewhat a no
go territory for me had it not been for Alison’s creative energy. I could not
thank you enough for your conversations, stimulations, and guidance on the
project and beyond.

A very special thank you to Mom, Dad, sisters, and brothers for all your love,
support, and understanding! Special thank you to Abdulatif Idris for your
reaffirming friendship. Abadir Ibrahim, Tsegaye Ararsa, Meron Hirpa, and Asta
Hansen, thank you for your support, encouragement, and interactions on my
thesis and issues of mutual interest. A very special thank you to Yenenesh,
Samuel Gezmu, Dereje Workie and family for your friendship and company.

Lastly, I owe a very special thank you to my dear wife, Munira Husen, for her
encouragement and patience with my long and unruly working hours. Thanks for
your understanding.
vii

Author’s Declaration

I declare that, except where explicit reference is made to the contribution of
others, that this dissertation is the result of my own work and has not been
submitted for any other degree at the University of Glasgow or any other
institution.

Signature
Printed name Awol Allo
1
1. Introduction

Resistance or what the Ancient Greeks call agōn, began as ‘a moral gesture,’ as
a concern with truth and a contestation against oneself.1 Although there are
several mythologies of resistance dating back to the pre-Socratic era, it is really
Sophocles’s Antigone that provides the most complete account of resistance
against the state.2 Through Antigone, Sophocles shows the incommensurability
between law and resistance – the antithetical and irreconcilable difference
between sovereignty and the subject on questions of fundamental significance
to organized political communities. Creon and Antigone hold mutually exclusive
views about law and justice and the very meaning of the good life and how to
achieve it. More than two millennia after Antigone, we are still asking the same
question: what is the precise relationship between law and resistance?

In contemporary political theory, agonism is conceptualized as an ‘alternative
normative vocabulary’ to communicative rationality and democratic consensus.
Theorists such as William Connolly, Bonnie Honig, Chantal Mouffe and others
suggested various modes of agonistic struggles against the containment and
reduction of politics through democratic consensus and procedural
reductionism.3 In the legal domain, however, the whole idea of a ‘normative
vocabulary’ is a normalizing discourse that disables resistance and renders it
unintelligible. Law, we are told, is a paradigmatic normative system that lays
claim to a very distinctive genre of normativity.4 Given this claim, i.e., law’s
representation and expression of its constitutive and regulative conditions as
always already normative, resistance becomes a backstage discourse that
cannot be spoken in the face of law. Law’s claims to universality, rationality,
objectivity, autonomy, and value-neutrality, on the one hand, and its

1 Herta Muller, ‘Das Ticker, Der Norm,’ in Hunger and Seide (Reinbeck: Rowolt, 1997) 91-2.
2 See generally, Sophocles, Antigone, Oedipus the King and Electra, Edith Hall, eds., trans. H. D. F. Kitto
(Oxford: Oxford University Press, 2008).
3 See generally William Connolly, Pluralism, (Durham, NC: Duke University Press, 2005); Bonnie Honig,
Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993); Chantal
Mouffe, For an Agonistic Model of Democracy,’ in The Democratic Paradox, (London: Verso, 2000).
4 See generally, Hans Kelsen, General Theory of Norms, trans. M. Hartney (Oxford: Clarendon Press, 1975);
H. L. A. Hart, The Concept of Law, 2nd eds. (Oxford: Oxford University Press, 1994); Max Weber,
Economy and Society, Guenther Roth and Clause Wittich, eds., (Berkeley: University of California Press,
1978).
2

prescriptive nature (law’s power to prescribe what is) impose a closure that
renders resistance, a priori, unintelligible.

With the emergence of democratic states, the rationalization and formalization
of law in the 19th century, and the rise of legal positivism in the same period,
law managed to institute a form of rationality and mode of reasoning that
render resistance superfluous. The constitutionalization of the exercise of
political power, the institutionalization of legality, and constitutionalism were
defended as normative ideals that make resistance unnecessary or the right to
resistance superfluous. Legal positivism played a crucial part in the elimination
of the right of resistance from the juridical discourse. By 1831, John Austin, the
father of legal positivism, proclaimed that ‘[a] law, which actually exists, is a
law, though we happen to dislike it.’5 Two centuries later, the rationalization of
law reached its apogee, with H. L. A. Hart, formulating the ‘crown of the
positivist method’6: the ‘legal system is a 'closed logical system' in which correct
decisions can be deduced from predetermined legal rules by logical means
alone.’7 This rationality and neutrality, it is argued, elevates law beyond the
expediency of power and politics. It gives law an inner reality, closed within
itself and inaccessible to the man ‘Before the Law,’ waiting at the gate in
anticipation of its truth. According to this mode of reasoning, law and politics
operate according to two exclusive axioms: politics is the field of power
relations and contestations; and law is the sphere of truth and justice governed
by the rule of law.

Normatively speaking, then, law and resistance are incommensurable. They
depart from different referent points, and operate through antagonistic genres
of discourse that operate according to their own rules, strategies, and
instruments. Given these differences, there cannot be mutual recognition
between law and resistance. On this register, resistance registers as resistant
only insofar as it contests the order against which it stands on its own terms and
from within its own discourse. If resistance is to register as resistant on its own

5 John Austin, The Province of Jurisprudence Determined (Amherst: Prometheus Books, 2000), 184.
6 See P. d'Entrèves, Alexander, ‘Legality and Legitimacy.’ The Review of Metaphysics 16, (1963), 694.
7 H. L. A. Hart, The Concept of Law, 2nd eds. (Oxford: Oxford University Press, 1994), 302.
Chapter 1: Introduction