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See detailWhen Time Breaks: The Hiatus of Refugee Status
Van Der Walt, Johan Willem Gous UL

E-print/Working paper (2018)

“In the first place, we don’t like to be called ‘refugees.’ We ourselves call one another ‘newcomers’ or ‘immigrants.’” Already here, in the first sentence of Arendt’s essay “We Refugees,” does the hiatus ... [more ▼]

“In the first place, we don’t like to be called ‘refugees.’ We ourselves call one another ‘newcomers’ or ‘immigrants.’” Already here, in the first sentence of Arendt’s essay “We Refugees,” does the hiatus of refugee status become manifest. A divide already opens up between different habits of reference. Refugees refer to themselves in one way, non-refugees refer to them in another, and so does the projected or desired possibility of one world in which both refugees and non-refugees might find accommodation, split into two very different realities. Consciousness of the split is of course solely that of the refugees, at first. Initially, the hiatus is theirs only. Others – non-refugees – remain soundly oblivious to this fundamental split until such time as it brutally breaks into their world too, for instance, when the corpse of a four-year old child washes up on a beach, and washes up on every doorstep in a succession of media waves. And then the hiatus is suddenly everywhere and no one remains exempted. As the last sentence of Arendt’s essay contends forcefully, the split begins with the refugee status of some, but it ends with the bigger split of a world that begins to falter and fall apart: “The comity of European peoples went to pieces when, and because, it allowed its weakest member to be excluded and persecuted.” The comity of European peoples show all signs of going to pieces again today. When the comity of peoples goes to pieces, it is not only common space that cracks up, but also common time, the common time that warrants common space according to Kant’s Schematismuslehre. It is ultimately this breaking of time – the hiatus of time – that Arendt thematises elsewhere with reference to “the desolate aimless wanderings of Israeli tribes in the wilderness and the dangers which befell Aeneas before he reached the Italian shore.” “[T]his hiatus,” she continues, obviously creeps into all time speculations which deviate from the currently accepted notion of time as a continuous flow.” (Arendt On Revolution, 205). This text is also a supplementary discussion of my reviews of two recent monographs on Arendt. See: RECENT ARENDT SCHOLARSHIP: Review of The Wandering Thought of Hannah Arendt by Hans Jörg Sigwart, Palgrave MacMillan, 2016, ISBN: 978-1-137-48214-3, 147 pages (abbreviated as WT below), and Rightlessness in an Age of Rights. Hannah Arendt and the Contemporary Struggles of Migrants by Ayten Gündoğdu, New York: Oxford University Press: 2015, 298 pages, forthcoming in Constellations. [less ▲]

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See detailIrresponsible Ordoliberalism and the Imperialistic Fantasy That We All Might Become Good Germans One Day
Van Der Walt, Johan Willem Gous UL

in New Perspectives: Interdisciplinary Journal of Central and East European Politics and International Relations (2017), 25(2), 145-182

What follows is a reply to the critical responses of Malte Dold and Tim Krieger, Josef Hien, Charlotte Heath-Kelly, Emmanuel Pierre Guittet, Filipe dos Reis and Ben Kamis to my 2016 New Perspectives ... [more ▼]

What follows is a reply to the critical responses of Malte Dold and Tim Krieger, Josef Hien, Charlotte Heath-Kelly, Emmanuel Pierre Guittet, Filipe dos Reis and Ben Kamis to my 2016 New Perspectives intervention ‘When One Religious Extremism Unmasks Another: Reflections on Europe’s States of Emergency as a Legacy of Ordo-liberal De-hermeneuticisation’ (hereafter ODH – for “Ordoliberal Dehermeneutisation”). My reply will be divided into two main parts. The first part will focus on what I will call ‘a disciplinary instruction not to think.’ The second will focus on what I will call ‘constructive invitations to think further.’ The first part focuses on Dold and Krieger’s arguments. The second focuses predominantly on those of the rest of the interlocutors listed above. What ultimately emerges out of this second section is a reflection on the need to consider both order and disorder as constitutive elements of human freedom, and to sustain the tension between them. Of concern, here, I argue, is a freedom that refuses to be subjected conclusively to any “order of liberty” that a liberal government in general and an ordoliberal government in particular may wish to establish. [less ▲]

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See detailAbdications of Sovereignty in State Action and Horizontal Effect Jurisprudence
Van Der Walt, Johan Willem Gous UL

in Kahana, Tsvi; Scolnicov, Anat (Eds.) Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations (2016)

This article argues that different regimes of horizontal effect adjudication invariably turn on different attitudes to state sovereignty. Aversions to horizontal effect are usually a reflection of an ... [more ▼]

This article argues that different regimes of horizontal effect adjudication invariably turn on different attitudes to state sovereignty. Aversions to horizontal effect are usually a reflection of an apprehension regarding state sovereignty (understood as a threat to liberty) whereas endorsements of horizonal effect usually reflect a positive regard for state sovereingty (as a condition for liberty). [less ▲]

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See detailThe ombre spirituel of Statehood in the European Union: Reflections on Nikos Scandamis’ Essay L’Etat dans l'Union européenne: Passion d’un grand acteur
Van Der Walt, Johan Willem Gous UL

in European Politeia (2016), (1), 145-185

Nikos Scandamis’ essay L’Etat dans l'Union européenne: Passion d’un grand acteur suggests the EU has flayed the Westphalian Leviathan. It has laid its dark insides bare to relentless scrutiny. But perhaps ... [more ▼]

Nikos Scandamis’ essay L’Etat dans l'Union européenne: Passion d’un grand acteur suggests the EU has flayed the Westphalian Leviathan. It has laid its dark insides bare to relentless scrutiny. But perhaps it could only do so by appropriating these dark insides for itself. The ombre spirituel that Schmitt associated with sovereign statehood does not seem to have disappeared like the rest of nationalistic mists before the rising sun of European integration. It has simply shifted along with the pretentions of this rising sun. The market place has in broad daylight become the source of a new shadow. This response to Scandamis argues that the CJEU, the principal agent of EU integration since its decisions in Costa v ENEL and Van Gend & Loos, has simply taken over the many ombres spirituels of the Member States in the form of one cloudy jurisprudence that allows for little democratic transparency. True, the EU does not claim to be a sovereign state as yet and it is often said that its goal is also not to become one. In the meantime, however, it pursues its governmental goals in the manner of a sovereign state under the ombre spirituel offered by the obscure jurisprudence of its highest judiciary. [less ▲]

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See detailWhen One Religious Extremism Unmasks Another: Reflections on Europe’s States of Emergency as a Legacy of Ordo-Liberal De-hermeneuticisation
Van Der Walt, Johan Willem Gous UL

in New Perspectives: Interdisciplinary Journal of Central and East European Politics and International Relations (2016), 24(1), 79-101

This intervention explores the extent to which the technocratic de-hermeneutisation of European political economical thinking, of which the ordoliberal economic principles of the Freiburg school in ... [more ▼]

This intervention explores the extent to which the technocratic de-hermeneutisation of European political economical thinking, of which the ordoliberal economic principles of the Freiburg school in Economics are a key ingredient - may be contributing to the social conditions under which religious radicalisation typically takes place, or may at least be failing to provide significant responses on the basis of which religious radicalisation can be countered. [less ▲]

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See detailDELEGITIMATION BY CONSTITION? LIBERAL DEMOCRATIC EXPERIMENTALISM AND THE QUESTION OF SOCIO-ECONOMIC RIGHTS
Van Der Walt, Johan Willem Gous UL

in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft = Critical Quarterly for Legislation and Law = Revue Critique Trimestrielle de Jurisprudence et de Législation (2015), 3/2015

This response to Frank Michelman’s exploration of a weak form of judicial review in the case of socioeconomic rights (See Michelman “Legitimacy, the Social Turn, and Constitutional Review: What Political ... [more ▼]

This response to Frank Michelman’s exploration of a weak form of judicial review in the case of socioeconomic rights (See Michelman “Legitimacy, the Social Turn, and Constitutional Review: What Political Liberalism Suggests,” CritQ 3/2015, 183-205) takes its cue from the Laval and Viking series of judgements passed by the Court of Justice of the European Union (CJEU) in 2007 and 2008. The essay describes these judgements as a veritable Lochnerisation of EU law. This Lochnerisation of EU law that became evident in CJEU’s Laval and Viking jurisprudence, continues the argument, casts serious doubts over the wisdom of allowing judiciaries to decide the fate of SER protections. This response to Michelman accordingly attaches much importance to his cautionary footnote regarding the expectations one might have from the judicialisation of SER protections in today’s “neoliberal climates” and basically accepts with resignation that it is not the task of judges to develop the utopian potential that constitutional rights may seem to promise. It argues in this regard for a negative version of the liberal political project that Michelman explores. Instead of a legitimation of SER with reference to substantive constitutional values (with its attendant risks of Lochnerisation), judiciaries should be constrained to de-legitimations (constitutional proscriptions) of actual parliamentary and executive actions that fall foul of constitutional norms with reference to criteria of self-evidence (in cases of gross non-compliance) or compelling empirical evidence presented in court (in cases of less evident non-compliance). These criteria of self-evidence and empirical cogency, continues the argument, used to be well represented in classical (three-prong) proportionality tests, but have fallen by the way side in the exuberant balancing procedures to which many judiciaries have fallen prey in the wake of the horizontal effect revolution of the 20th century. Laval and Viking, concludes the argument, are the results of this development. [less ▲]

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See detailCRITICAL QUARTERLY ON LEGISLATION AND LAW 3/2015, SPECIAL ISSUE ON FRANK MICHELMAN, JUDICIAL REVIEW AND SOCIOECONOMIC RIGHTS: EDITORIAL INTRODUCTION
Van Der Walt, Johan Willem Gous UL

in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft = Critical Quarterly for Legislation and Law = Revue Critique Trimestrielle de Jurisprudence et de Législation (2015), 2015/3

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See detailThe Literary Exception: Reflections on Agamben’s “Liberal Democratic” Political Theology and the Religious Destabilisation of the Political in Our Time
Van Der Walt, Johan Willem Gous UL

in New Perspectives: Interdisciplinary Journal of Central & East European Politics and International Relations (2015), 23(1), 15-44

The concern with stabilising the political and avoiding the excessive deployments of coercive force by totalitarian political imaginations is usually associated with political liberalismand liberal ... [more ▼]

The concern with stabilising the political and avoiding the excessive deployments of coercive force by totalitarian political imaginations is usually associated with political liberalismand liberal political theory. It is rarely associated with political theology and conceptions of sovereignty that are based on political theology. The unique contribution of the Italian philosopher Giorgio Agamben to contemporary political theory is the opportunity it offers to contemplate the stabilisation of the political in terms of political theology and not in terms of typical rule of law arguments that one would associate with political liberalism. The aim of this article is to trace and question some of the essential thoughts on the basis of which Agamben puts forward the idea of the called existence of the Christian community. It does so in order to put forward, in response, an argument for a literary community that has much in common with Agamben’s conception of the Christian ekklesia, but ultimately also differs fromit in certain important respects. The argument for a literary community that is developed ultimately has more in common with Nancy’s conception of an “inoperative community”. The article also offers a close scrutiny of Agamben’s engagement with the work of Carl Schmitt. This scrutiny of Agamben’s engagement with Schmitt is crucial for the argument that the article forwards, considering the way in which Schmitt’s work is with good reason historically linked to exactly the kind of political theology that destabilises rather than stabilises the political. [less ▲]

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See detailWhen Time Gives. Reflections on Two Rivonia Renegades
Van Der Walt, Johan Willem Gous UL

in Allo, Awol (Ed.) The Court Room as a Space of Resistance. Reflections on the Legacy of the Rivonia Trial (2015)

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See detailTimeo Danais dona ferre and the Constitution that Europeans may one day have given themselves
Van Der Walt, Johan Willem Gous UL

in Van Der Walt, Johan Willem Gous (Ed.) Constitutional Sovereignty and Social Solidarity in Europe (2015)

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See detailConstitutional Sovereignty and Social Solidarity in Europe
Van Der Walt, Johan Willem Gous UL; Ellsworth, Jeffrey UL

Book published by Nomos/Bloomsbury (2015)

The essays in this book respond in different ways to questions regarding sovereignty, constitutionality and social solidarity in the European Union. Some of the essays perceive a threefold deficit in this ... [more ▼]

The essays in this book respond in different ways to questions regarding sovereignty, constitutionality and social solidarity in the European Union. Some of the essays perceive a threefold deficit in this regard – a constitutionality, sovereignty and solidarity deficit. The common view that can be distilled from them relates to a perception that the people and peoples of the European Union have drifted into a quagmire of political paralysis within which essential features of the paralysis – lack of constitutionality, lack of sovereignty and lack of social solidarity – feed off one another. Lack of solidarity, not only between European citizens, but also between Member States of the European Union, derails all possibilities of common political initiative, fervour and purpose. And absence of such common initiative, fervour and purpose quite evidently explains the faltering of Europe’s constitutional project and the reduction of this project to that which Jürgen Habermas has come to call Europe’s “mindless incrementalism.” Unable to arrive at the constitutionality that would allow for the emergence of European sovereignty, the faltering constitutional process has only managed to dismantle essential elements of sovereignty and social solidarity within the Member States of the European Union. This has led to the double edged lack of sovereignty (lack of sovereignty at EU level and lack of sovereignty in the Member States) that has lead Dieter Grimm to observe (also in his contribution to this book) that there may well be no true sovereign left in Europe today. Against this background, it is perhaps no surprise that a non-sovereign body would step in to take over the responsibilities of sovereign government, and do so on the basis of the only principle that appears prima facie legitimate under circumstances of political paralysis, namely, the ordo-liberal principle of reducing politics to guardianship of free competition between individuals that replaces constitutional law with competition law; hence the crucial role that the market-liberalisation jurisprudence of the European Court of Justice have come to play in the non-sovereign or surreptiously-sovereign way Europe is governed today. To be sure, not all the essays in this book share this grim view. A number of them discern an emergence of new forms of democracy or even new forms of political legitimacy in the complex structures of multi-level governance in the European Union. Between them, however, the spectrum of essays that make up this book undoubtedly provides the reader with a comprehensive study of the key issues of European politics and law today. [less ▲]

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See detailTHE HORIZONTAL EFFECT REVOLUTION AND THE QUESTION OF SOVEREIGNTY
Van Der Walt, Johan Willem Gous UL

Book published by Walter de Gruyter - 1st (2014)

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See detailLAW, UTOPIA, EVENT A Constellation of Two Trajectories
Van Der Walt, Johan Willem Gous UL

in Sarat, Austin; Douglas, Lawrence; Umphrey, Martha (Eds.) Law and the Utopian Imagination (2014)

This paper concerns the fundamental transformation of the utopian imagination in the course of the twentieth century. This transformation became abundantly evident in certain prominent trends in twentieth ... [more ▼]

This paper concerns the fundamental transformation of the utopian imagination in the course of the twentieth century. This transformation became abundantly evident in certain prominent trends in twentieth century philosophical thinking. Philosophy’s role in this transformation was probably as performative as it was constative. Philosophy or at least some philosophy reflected or registered this transformation clearly but in doing so also contributed to it. The transformation of the utopian imagination was, however, not just the work of philosophers. It was also reflected in and effected by artistic and literary intuitions. Paul Celan’s poetry was surely an eminent case in point. The trend of philosophical, artistic and literary thinking at issue here can be described, very broadly, in terms of a resistance to the way language and the exigencies of clear communication reduce the utterly incomparable uniqueness of singular entities or persons or events to repeatable and generic instances of fixed identity and stable meaning. At issue in this trend is what one might call, following Theodor Adorno, a negative-linguistic quest for the non-identity of singular existence that transcends or exceeds the identity-forging thrust of conceptual language. This negative-linguistic quest is utopian because of the way it contemplates the possibility of the impossible, as Jacques Derrida put it when he received the Adorno prize in 2001. It contemplates completely non-instrumental relations between individuals that would not subject anyone to the systematic instrumentalisation at work in all generalising conceptual schemes. What is the transformation of the utopian imagination in the philosophical, artistic and literary movements at stake here? What was the utopian imagination like before twentieth century philosophy and poetry and art changed it? The utopian imagination began with Plato and endured for many centuries – in the thoughts of thinkers such as St. Francis, More, Rousseau and Marx – as a very topical and typical denunciation of private property. It typically viewed private property as the source of all social injustice and all forms of societal alienation. The utopian imagination thus became a very predictable and generic socialist resistance against the institution of private property before it turned, already to some extent in the work of Marx and then very evidently in the work of Adorno and other neo-Marxists, into a much more radical questioning of linguistic or conceptual propriety as such. This radical questioning of linguistic propriety – what Celan describes as the wish of language itself to turn away from its regular quest for meaning so as to reach back into the absurd – was, however, surely not just a Marxist or neo-Marxist development. It reflected a broader movement in twentieth century thinking that was also clearly evident in the strands of twentieth century philosophical thinking that became known as phenomenology, post-structuralism and deconstruction. [less ▲]

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See detailTotemic Immimanence
Van Der Walt, Johan Willem Gous UL

in Motha, Stewart (Ed.) Reading Modern Law (2012)

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See detailLaw and the Space of Appearance in Arendt’s thought
Van Der Walt, Johan Willem Gous UL

in Goldini, Marco; McCorkindale, Chris (Eds.) Hannah Arendt and the Law (2012)

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See detailRethinking the Fundamental Structures of the State with Reference to the Horizontal Application of Fundamental Rights
Van Der Walt, Johan Willem Gous UL

in Sachs, Michael (Ed.) Der grundrechtsgeprägte Verfassungsstaat. Festschrift für Klaus Stern zum 80. Geburtstag (2012)

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See detailThe Murmur of Being and the Chatter of Law (review article)
Van Der Walt, Johan Willem Gous UL

in Social & Legal Studies (2011)

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See detailVertical Sovereignty, Horizontal Constitutionalism, Subterranean Capitalism: A Case of Competing Retroactivities
Van Der Walt, Johan Willem Gous UL

in South African Journal on Human Rights on Constitution-making in South Africa, 2010, 26 (1) 102-129 (2010), 26(1), 102-129

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