‘I am the first accused’: Seven Reflections (and a Postscript) on Derrida’s Mandela

Chapter 8
‘I am the first accused’: Seven Reflections (and a Postscript) on Derrida’s Mandela

The domain of the rules was no longer enough for you; you were unable to live any longer in the domain of the rules; so you had to enter into the domain of the struggle.¹

I

In 1985 Jacques Derrida published a text in a collection of protest ‘tributes’ that he co-edited with Mustapha Tlili, entitled For Nelson Mandela. Derrida’s own tribute was published in English under the title ‘The laws of reflection: Nelson Mandela, in admiration’.² On the day of Nelson Mandela’s death, I chose to subvert/remirror Derrida’s title by way of re-ordering its words. I wrote a tribute entitled ‘Nelson Mandela, in reflection: the laws of admiration’.³

My motivation for the violence that I knowingly committed against Derrida’s title and, thus, against his text, was inspired by the overwhelming impression that the day of Mandela’s death was in South Africa, at least, perhaps more a day of and for reflection rather than for admiration or, if you will, for reflection precisely by way of admiration – and reflection, then, on the laws of Mandela, which in the end are, by his own account and in reflection, the laws of admiration. By changing the title to refer to the laws of admiration, I wanted to foreground precisely what Derrida first taught us about Mandela – that he was a man of admiration and, in reflection on his death, that it is there, with this fact, that we ought to begin (again), asking ourselves once more what could be learned not so much in admiration of Nelson Mandela, but rather about the admiration he reflected so vividly. What, finally, could reflecting on Mandela on the day of his death, teach us about how he could be admired (more) faithfully, about admiration generally, and about the relationship between the law and admiration, specifically? Reflection, admiration, its laws and the Law. These are, then, the terms – even, the series – that come to light when we put Nelson Mandela in the light of Jacques Derrida. Or is it the other way around? Jacques Derrida in the light of Nelson Mandela? Or, in a gesture of fidelity to the ‘both, and’ logic for which deconstruction is (in)famous,⁴ is it not more accurate to say that these are the terms that come to light when these names are viewed in each other’s light? When we reflect on the laws that the Nelson Mandela reflected by Jacques Derrida will have given us in admiration? I hear the accuser asking as the police⁵ flashlight shines blindingly in my eyes: ‘What difference does it make?’ I proceed in this light, this light in which I also stand accused, to reflect, then, on the opening words (which are initially read as a confirmation and an affirmation) of Nelson Mandela’s statement from the dock in the Rivonia trial: ‘I am the first accused.’ The words, I hope to show, that made all the difference.

II

At the beginning of his text on Mandela, Derrida asks: ‘Why does he seem exemplary and admirable in what he thinks and says, in what he does or in what he suffers? … Why does he also force admiration in this manner? This word presupposes some resistance, for his enemies admire him without admitting it. … So, this is the question: where does that force come from? Where does it lead?’⁶

Derrida answers by arguing that we see in the force of this admiration a ‘line of reflection’ which is first of all a force of reflection. In other words, the force of admiration is, derives itself from, another force: the force of reflection. Mandela seems always to blend his experience and passion with theoretical reflection: ‘about history, culture, and above all jurisprudence’.⁷ Mandela was a man of reflection and, for that very reason, forced admiration. The force of his reflection generated the force of admiration (for him, in both senses of the phrase). Derrida accordingly puts two senses of Mandela’s admiration into play: ‘the one he inspires and the one he feels’.⁸ In short, Mandela is admired (even, albeit secretly, by his enemies) for having himself admired so forcefully. And what is it that he has admired so forcefully? Derrida answers that it is the Law and that jurisprudence is what inscribes this Law in discourse and in history.⁹ Jurisprudence, then, as a kind of optics, is what reflects the Law in discourse and in history. The ‘line of reflection’ here connects the two points: jurisprudence with law. And, by the force of his reflection on and admiration (an admiration, as we shall see, that is by no means uncritical, is reflexive) of the Law, Mandela has been a man of Jurisprudence. In fact, Derrida, who will explicitly bring to light the intricate connection between this admiration of the Law and the call of conscience, shows us that Mandela has always known the meaning of Jurisprudence as itself a line¹⁰ that connects two points: ‘the prudence, the phronesis of jus (law), law’s consciousness and conscience’, ‘the exploration of law’s justice and of an ideal law or equity at the bar of which state law is always judged’.¹¹ ‘In all the senses of this term Mandela remains, then, a man of the law. He has always appealed to the law even if, in appearance, he has to oppose himself to such-and-such specific legality and even if certain judges have made of him at certain moments an outlaw.’¹² As the first accused before the positive law in the Rivonia trial, Mandela, the man of Jurisprudence, found himself to be an outlaw, appealing to a consciousness of law’s conscience.

And it is because Mandela is a man of Jurisprudence as the line of reflection between law’s consciousness and conscience, that the reader of Mandela’s words/reflections can be led to an understanding that, in his appearance before the Apartheid court and in his writing about it, Mandela reflects ‘specular paradoxes in the experience of the law’.¹³ This is an understanding of these paradoxes, moreover, that is enabled by admiration. What is a ‘specular paradox’? What does it mean to understand it? Stephen Curkpatrick argues that in his work on law and justice, Derrida avoids an equation of justice with particular manifestations of legal justice. This is the case because we are always ‘behind’ on justice. Justice always already overtakes the particular instantiations of its demand articulated in terms of a particular case and even positive law in general.¹⁴ In short, there is always more justice to be done. One ‘specular paradox’ in Mandela’s experience of the law, then, is the injustice of law: the reflection that justice must be done and yet it cannot be done. One way in which this paradox is reflected by Mandela’s appearance in the dock at the Rivonia trial is that whilst he is summoned as first accused before the law of Apartheid in a supposed rendering of justice, he summons the very law which he is accused of transgressing, ‘in a spectral trial within a trial’ ‘to justify itself before his conscience and testimony’,¹⁵ to reflect that justice cannot be done and yet that it must be done, to account for its historical determinacy (here, as Apartheid), even in the face of his admiration for the Law. In Mandela’s call upon the Law, then, he places the law in question: it is no longer Mandela before the law, but the law before Mandela.

Derrida proceeds to quote from Mandela’s speech from the dock (in which he ‘prosecutes those who accuse him’) in order to explain what notion of law (now as positive, historically determined law) is at stake in Mandela’s admiration. Of the parliamentary system, the Magna Carta, the Petition of Rights and the Bill of Rights Mandela says that he is an ‘admirer’. And speaking of ‘the independence and impartiality’ of the judiciary under a system of justiciable rights he says that it never fails ‘to arouse my admiration’.¹⁶ But here, before him, in this court, the law that he admires stands accused and accused of having betrayed itself, of having betrayed justice.

III

At this point in his text, Derrida asks that we consider whether this law that Mandela admires is essentially ‘a thing of the West’ and whether the white, European struggle against Apartheid amounted to a ‘domestic war that the West carried on with itself, in its own name’.¹⁷ Derrida will answer by way of a detour that begins by pointing out that Mandela is an authentic inheritor of this legal tradition in that he ‘respects the logic of the legacy enough to turn it upon occasion against those who claim to be its guardians’.¹⁸ It is here where we begin to see that Mandela’s admiration of the democratic, constitutional law of the West never was an uncritical one, that in his eyes, the constitutional law of the West in its colonial and Apartheid instantiation, always stood accused of betraying the very principles upon which it relied for its justification. Curkpatrick believes that for Derrida, Mandela ‘is a spectre of justice that haunts European law, made and preserved for human dignity, yet inadvertently underpinning the presuppositions of apartheid in Eurocentric humanism’.¹⁹

For instance, Mandela turns the legacy against the guardians by causing the ANC’s – as a resistance movement’s – structure and paradigm closely to resemble the parliamentary democracy that he admires. And the Freedom Charter – as a resistance manifesto – matches the democratic commitments of the Universal Declaration and other bills of rights, similarly revered. Yet, Mandela refused to ‘maintain the struggle within the constitutional framework’ of Apartheid South Africa which was itself modelled on the Westminster system, because he recognized the coup de force – the failure of the law – of the white minority at the heart of the establishment of this constitutional law; a coup de force that could not, like others, be forgotten or covered over by retroactive acts of legitimacy.

To this coup de force of white occupation Mandela opposes the ‘entire nation’ and, in so doing, intends to refound, by way of the Freedom Charter, the founding act of law which is ‘necessarily alegal in itself’.²⁰ Whilst it is true that the moment of any founding of the law is neither authorized nor unauthorized²¹ – a certain coup de force – the point about the South African founding was that it ‘remained a coup de force’. The disparity between the fiction of the ‘unity of a nation’ and the reality of the particular will – that of a white minority – that it always had, exclusively, in mind, was simply too excessive, too transgressive: ‘The white community was too much in the minority, the disproportion of wealth too flagrant.’²²

However, in South Africa the Freedom Charter would have done more than simply refounding the law. It would have reflected against the white minority the very principles ‘from which it was claiming to be inspired, whereas actually it never ceased to betray them’.²³ This reflection is an accusation and this accusation is redoubled. It is not simply that Mandela and his people stand accused before any law – Mandela and his people stand accused before a law that has betrayed itself, before a law that is no longer a law, a law that has contaminated itself from within. And it is for this reason that Mandela and his people accuse and accuse by way of a witnessing of and a testimony about this betrayal. Mandela accuses by way of reflection. This becomes most clear in Derrida’s reading of the part of the speech from the dock where Mandela describes how the white government refused even to acknowledge receipt of his and other ANC members’ letters addressed to them. This refusal constituted a betrayal on the part of the whites of the very laws of ‘civility’ that they made and invoked in justification of Apartheid. In his speech, Mandela effectively acknowledges the receipt of this refusal to acknowledge receipt and in so doing reflects the government’s own barbarism: ‘He reflects somehow, by accusing, by answering, by acknowledging receipt, the scorn of the whites for their own law.’²⁴

In actual fact, Mandela’s reflection reveals that the adversaries accuse themselves in the very act (or, as the law would have it, omission) of not acknowledging the receipt of the petition. The accusation that sets the scene (‘I am the first accused’) is reflected back onto the white minority, the Apartheid system. It stands accused by the force of its own accusation. It accuses itself. Thus the prosecution of which Derrida speaks – the true prosecution in the Rivonia trial – institutes itself.

IV

This reflection that accuses ‘would oblige us to see what was no longer seen or was not yet to be seen. It tries to open the eyes of the whites; it does not reproduce the visible, it produces it’.²⁵ The accusation is political because it is aesthetic – it tries to produce the visible, it tries to open eyes. It disrupts the distribution of the sensible and thereby changes it, it produces the part of no-part as an actor on the stage: Mandela, the man but also the symbol of the ‘entire nation’ to whom is opposed the white minority and its government. If the ‘political autobiography, his and that of his people’ is ‘indissociable’, then so is the accusation. ‘The “I” of this autobiography establishes himself and justifies himself, reasons and signs in the name of “we”.’²⁶ ‘I am the first accused’ is thus also ‘We are the first accused’. Derrida notes how Mandela ‘always says “my people”, ‘especially when he asks the question of the subject responsible before the law’²⁷ and, in this way ‘presents himself in his people, before the law’.²⁸ It is as if, when Mandela speaks the words ‘I am the first accused’, the ‘entire nation’ rises up and speaks in one voice: ‘I am the first accused’ and then, by the reflection of the sharpest light, the constative transforms with the force of reflection into a performative: ‘I accuse.’

We cannot but recall here Emile Zola’s J’accuse in the wake of the Dreyfus affair. In that case there was also a first and falsely accused. In that letter there is also admiration of and high respect for the law, expressed in the language of light: ‘your star which, until now, has shone so brightly’.²⁹ And there is reflection of and upon this light and reflection of a type similar to the reflection that Mandela achieves with his ‘entire nation’:

Today is only the beginning, for it is only today that the positions have become clear: on one side, those who are guilty, who do not want the light to shine forth, on the other, those who seek justice and who will give their lives to attain it. I said it before and I repeat it now: when truth is buried underground, it grows and it builds up so much force that the day it explodes it blasts everything with it.³⁰

Like Mandela after him, Zola causes the light to shine reflectively by appropriating the accusation. Dreyfus is no longer the accused. By way of Zola’s performative ‘J’accuse’ Dreyfus is exonerated and his accusers stand accused (regardless of, or at least in opposition to, what was being exacted by the historically determined law at the time). This accusation (reflection) is achieved entirely by way of a line of reflection, a reflection that opposes ‘humanity’ to the injustice of the French government: ‘I have but one passion: to enlighten those who have been kept in the dark, in the name of humanity which has suffered so much and is entitled to happiness.’³¹

Zola realizes only too well that this accusation, this enlightenment, will in turn turn him into an accused. He thus accuses himself (but he never relinquishes his reliance on the light): ‘Let them dare, then, to bring me before a court of law and let the enquiry take place in broad daylight!’³² After the accusation, Zola stands accused as the accuser, and he is tried as such. From the point of view of form and effect, the position is no different from that of Mandela in the dock at the Rivonia trial.

And it is no coincidence that what comes to light at the point in Derrida’s text where the accused holds up a mirror to the accuser, is at its most intense, is forceful, because it answers the question of the ‘thing of the West’: it turns out that Mandela’s admiration for the law that he reflects onto his accusers has a presence in ‘the interior of African society’,³³ a presence that lies in the past, but a more immediate present for him as an African, nevertheless. The law is thus, not, or not exclusively, ‘a thing of the West’ – the West, parliamentary democracy, etc., is a weak force, is ‘an example but not exemplarily’.³⁴ In early African society, Mandela finds the seeds³⁵ of a democracy that would not only be more forceful, ‘revolutionary’ as Derrida indicates, but also exemplary, because it would found a society without class and without private property – a democracy to be admired, a democracy to come, a democracy of which it cannot be said with any certainty that it will come from the future or from a past. And here we have then, already in 1985, the spectre of Derrida’s 1993 Specters of Marx: ‘there are several times of the specter. It is a proper characteristic of the specter, if there is any, that no one can be sure if by returning it testifies to a living past or to a living future, for the revenant may already mark the promised return of the specter of living being’.³⁶

Mandela’s opposition of the ‘entire nation’ to the white coup de force, is thus not, as Bernasconi³⁷ has noticed, merely an internal opposition or contradiction within the Western edifice or schema. The opposition enables, even leads, Mandela to reveal that the struggle of the black community against Apartheid is not simply an undertaking ‘in the name of an imported law’.³⁸ The location of an already ‘virtually accomplished’ non-Western democracy within the interior of Africa is a dangerous supplementation from the outside that displaces the schema and causes it to tremble.³⁹ In the end, by way of this reflection of a revolutionary democratic existence in the heart of pre-colonial African society, it is not just that the interior law of Apartheid stands accused. Rather, it is the entire edifice of Western law and its imperialism as a ‘civilizing mission’ that stands, once more, accused.

V

This ‘logic of supplementarity’⁴⁰ redoubles. The ‘law’ before which Mandela (and his people) appear is of two orders. The appearance before the law of the second, weaker order is symmetrically double: it is the law that he summons and the law that summons him (and his people). It is the law before which he appears and that appears before him/them, the law that will judge him and the law that he will judge. It is Apartheid.

But there is more. These reflections (redoubled in themselves) will be interrupted only by the appearance (supplementation) of another law, the law of the first order: the superior law which he admires, before which he also appears, which he also summons, but this time the Law to which he appeals and before which the constative ‘I am the first accused’ becomes an appeal, a plea: ‘he addresses himself to the universal justice above his judges of one day only’⁴¹ in a voice ‘which never ceases to appeal to the voice of conscience, to the immediate and unfailing sentiment of justice, to this law of laws that speaks in us before us, because it is inscribed within our heart’.⁴²