Nelson Mandela and Civic Myths: A Law and Literature Approach to Rivonia

Chapter 4
Nelson Mandela and Civic Myths: A Law and Literature Approach to Rivonia

Peter Leman

Introduction: Myth and Orality in Law and Literature

A key text in the law and literature movement, Herman Melville’s novella Billy Budd, Sailor (which he began writing in 1888 and was published posthumously in 1924) describes the trial and execution of its eponymous character on the HMS Bellipotent in 1797. Billy’s captain, Edward Fairfax Vere, loves the young man described as the “Handsome Sailor,” but feels compelled to observe the law when Billy kills the master-at-arms in a fit of anger. In the chapter following Billy’s execution, the narrator quotes Vere, in one of the most famous passages from the book, stating his legal philosophy. Commenting on the “disruption of forms going on across the Channel and the consequences thereof” (i.e., the French Revolution and its aftermath), Vere observes, “With mankind, forms, measured forms are everything; and that is the import couched in the story of Orpheus with his lyre spellbinding the wild denizens of the wood” (1986: 380).

Literary critics and legal scholars have debated the meaning of this statement, and one of the more persuasive accounts is offered by Brook Thomas who insists that Vere’s “measured forms” are an expression in favour of legal formalism, of which the “central doctrine … is that freedom can be guaranteed only by maintaining the institutions supporting the formal order of the law” (1991: 230). What interests me most about Vere’s statement, however, and what is most important to this chapter is not his insistence upon legal formalism as such, but the fact that he connects law’s forms to the classical myth of Orpheus. What does it mean to assert that the “import” of legal formalism—an eminently rational, even scientific, form of jurisprudence—is to be found in the myth of a magic lyre? Thomas relates the Orpheus allusion to one made earlier by Thomas Carlyle about the French Revolution and the need for the “Lyre of some Orpheus, to constrain, with the touch of melodious strings, these mad masses in to Order” (qtd. in Thomas 1991: 230). One might respond, then, that for Captain Vere the comparison is strictly metaphorical—he is not saying formalism functions by magic, but that just as Orpheus’ powerful song is able to bring order, so too can the power of the law’s forms bring order to disorder. Or, perhaps he is instead emphasizing the performative nature of the law: law is characterized by speech acts that can bring order through their performative power, as does Orpheus’ song. I find these compelling but still insufficient interpretations due to the overdetermined quality of the metaphor that juxtaposes formalism, which is rationally based and tends to be embodied in the written word (even performative utterances in modern law have their lasting force in being written afterwards), and a myth that describes divine power expressed through song. Melville, I argue, recognized a fundamental tension in modern law arising out of its simultaneous denial and incorporation of myth, which in the legal context is intimately related to orality, or pre-literate forms of cultural expression.

In addition to embodying this tension, Vere’s statement also embodies a myth fundamental to the history of Western law, particularly in contexts of imperialism such as those of Great Britain in the eighteenth century and, for example, South Africa in the twentieth: namely, the myth of a defining divide between “civilized” and “uncivilized” parts of the world. (Indeed, according to Mahmood Mamdani, in colonial Africa “civilization … meant the rule of law” [1996: 109].) This “white mythology,” as Peter Fitzpatrick calls it (1992: x), quoting Derrida, maintains that those with the law must bring it to or impose it upon those without and that those who rebel against the established authority (as in the French Revolution or the anti-apartheid movement) are “wild denizens” and “mad masses” in need of constraint and order.

Now, why am I beginning a chapter about Nelson Mandela and the Rivonia Trial with a nineteenth-century American novella? It is an unlikely choice, I admit, but not an arbitrary one. Primarily, I believe Melville’s text usefully introduces a number of concepts that have been important in the law and literature movement as well as some that have yet to be examined fully, and each of these concepts is useful in helping us develop a law and literature perspective on what Nelson Mandela accomplishes in his statement before the dock, a statement that, I argue, is deeply attentive to and engaged with the forces of myth in apartheid South Africa. Just as a tension emerges in the way Captain Vere connects the forms of the law to mythology, so too are there tensions and contradictions in the colonial system of apartheid, the laws of which only appear legitimate within the context of the political mythology of Afrikaner nationalism and the anti-communist mythology of the Cold War. One of Mandela’s strategies, as I will show, was to sabotage (conceptually, as Umkhonto we Sizwe [MK] had done physically) these mythic foundations. Furthermore, whereas Captain Vere associates Orpheus with the forces of power and civilization and the wild denizens with those who resist such power, there is a marked irony in the fact that it is among the so-called “uncivilized” parts of the world where orality and song actually have the force of law. In other words, it does not necessarily make sense to locate the “import” of Western law, with its absolute dependence upon the written word, in the story of Orpheus, poet, singer, and orator. Compare, instead, what Ugandan poet Okot p’Bitek says about poets, singers, and orators in Africa: “The [traditional African] artist proclaims the laws but expresses them in the most indirect language: through metaphor and symbol, in image and fable. He sings and dances his laws” (1986: 39). Okot meant this literally: poets and singers are law-makers in indigenous African cultures, not only in Uganda but throughout the continent. In other words, orature—the myths, songs, stories, poems, proverbs, etc. that comprise an oral tradition—can actually be law. Orature archives normative wisdom and shapes traditional procedures. Elsewhere, I have studied this phenomenon, which I call “orature-as-law,” at length,1 and for our purposes here, a recognition of orature’s relationship to law suggests that there is a sense in which Vere’s observation turns against itself when read in the context of an oppressive situation like that of apartheid. During Rivonia, the state no doubt believed itself to be imposing “forms, measured forms” on the “wild denizens” who resisted and repeatedly disobeyed its laws. However, in his statement at the dock, Mandela invokes African oral traditions in subtle but important ways, leading Jacques Derrida to describe him as a “man of the law by vocation”—by calling and profession, of course, but also by the power of his voice, his vocality, his orality, and the forms of African orality that he invokes (1987: 29). Thus, Mandela’s Orphean speech challenges the law directly by confirming and rationally justifying his participation in forming Umkhonto we Sizwe, but also indirectly—and in a sense more powerfully—by destroying the myth upon which Captain Vere’s and the apartheid state’s laws were based. He demonstrates, ultimately, that the wild denizens who lack and are in need of the law are not the African people, but, ironically, the Afrikaner oppressor who in “scorning his own law … gives the law over to be scorned” (Derrida 1987: 32).

In the remainder of this chapter, I will examine how Mandela frames his speech with oral conventions in such a way that allows him to judge the apartheid system and dismantle its myths from the standpoint of an alternative basis of law. Additionally, more than solely employing a “negative hermeneutic” of unmasking the myths and ideologies of apartheid (Thomas 2007: 10), Mandela also seeks to generate new myths, or new ways of understanding the origin, destiny, and potential unity of South Africa as a nation.

Mythology and Modernity

Before examining Mandela’s speech as a civic myth, it is necessary first to say a bit more about the concept of myth itself and its relationship to law and the state. In thinking about myths, I have been influenced primarily by Brook Thomas’ Civic Myths: A Law and Literature Approach to Citizenship (2007), whose title is clearly echoed in my own, as well as Peter Fitzpatrick’s The Mythology of Modern Law (1992) and Leonard Thompson’s The Political Mythology of Apartheid (1985). All three scholars begin with a similar point, which, I believe, was also Melville’s: although modernity is assumed to be opposed to myth, or to have replaced myth with truth (historical, scientific) during the Enlightenment, myth is “vibrantly operative in modernity” (Fitzpatrick 1992: ix). In fact, the great myth of modernity is its very denial of myth. Or, as Thomas puts it, summarizing Blumenberg, “the Enlightenment’s great myth was the belief that, by replacing myth with truth, it could leave myth behind” (2007: 13). Our civic and political mythologies today may not have the same interest in the supernatural or the transcendent as so-called “pre-modern” mythologies, but their patterns and functions are nevertheless similar. We tell stories and construct and assume narratives, sometimes but not always factually true, that make sense of, render coherent, and/or justify as natural particular states of affairs that may otherwise be contradictory. In fact, Thomas asserts that civic myths are “a particular version of … cultural narratives. Stories without specific authors, cultural narratives help give meaning to social practices that cannot necessarily find a basis in rational logic” (2007: 6). Because myths can be used to render contradictions meaningful and coherent, we may be tempted to see them in terms of ideology—in other words, as potentially dangerous falsehoods that must be unmasked and critiqued. Inasmuch as myths are pervasive features of any oppressive regime, this is, in fact, true, and as I will show, one of the strategies that Mandela uses in his speech is such a critique of myth.

However, myths are not all bad. Not all myths serve nefarious functions, and in many respects, myths are necessary in our world today. As Thomas writes, the “relentless reliance” of ideological criticism “on a negative hermeneutic of ‘unmasking’ has limited its range, as evidenced by recent turns to both aesthetics and religion. Even critically skeptical citizens need something to believe in, some stories that serve as ‘equipment for living’” (2007: 10). Thomas’s response, therefore, is to employ a method that he finds in the work of Hans Blumenberg of working “on/with myth” (2007: 12–13). To work on a myth is to continue the necessary labor of unmasking, of debunking dangerous myths that can be used to justify and perpetuate oppression and inequality. But once a myth is removed, it is not replaced automatically with truth or fact—often a void remains, a place where people need stories to help them make sense of their place in society, of their relationship to the whole and its various component parts. Therefore, we need to work with myths and not just against them. “Following Blumenberg’s lead,” Thomas asserts, “scholars and teachers should continue their quest for complex truths, but they should also explore the process by which those truths can generate civic myths to rival the ones they debunk” (2007: 13).

One way of exploring this process, according to Thomas, is by turning to works of literature, which naturally interact with myths in ways that are both challenging and generative, and this is one additional reason I chose to begin this chapter with a work of literature. However, imaginative literature is not an obvious source for understanding the mythological complexities of Mandela’s statement and the trial in which it was delivered, although Nadine Gordimer and Alan Paton were both briefly involved (Gordimer in editing biographical notes of the accused for the press, and Paton in standing as a mitigation witness [see Broun 2012: 123–6]). My method for reading Mandela in terms of civic myths departs here somewhat from Thomas’—whereas he works on/with myths by turning to works of literature that can be read in the context of specific legal problems related to citizenship, I am interested in identifying how Mandela himself works on/with myths in the immediate context of a legal event that, in a sense, is also about citizenship, or what it means to be a citizen (or a subject) in South Africa. Mandela is, therefore, the literary text, although there are some interesting comparisons to be made between his strategies as a “man of the law by vocation” (Derrida 1987: 35) and those of authors such as Herman Melville, as we have seen already, and also Nurrudin Farah and Ngũgĩ wa Thiong’o, who similarly work on/with myths in contexts of oppression. Like them, Mandela was able to begin generating new forms of myth to replace old ones without sacrificing a core commitment to truth. In his text (in him as text), myth and truth work together, and this may be one reason why the Rivonia statement and Mandela himself have, today, achieved such mythic status.

Orality, Myth, and Law in the Rivonia Trial

The content of Mandela’s speech during the Rivonia Trial is highly significant, of course, but so too are its formal elements and the form of its presentation, or performance. As noted earlier, Mandela frames his speech with elements of orality, which, along with his choice to deliver a statement rather than submit to cross-examination, provides greater legitimacy to his effort to put apartheid on trial. The assumption behind Mandela’s choice to deliver a statement was, in part, that apartheid law itself was illegal—that its legitimacy was a myth, in other words—and that he and his people were not bound by its forms. In The Political Mythology of Apartheid, Leonard Thompson describes in detail the powerful mythic dimensions of Afrikaner nationalism which were foundational to the apartheid state. Among the most influential civic myths for the state were the myth of the Afrikaner people’s divine origin and destiny and the classic imperial myth that separates “us” from “them” along lines of race and civilization. These myths informed the core myth of the state that any disagreement with and resistance to its policies could not have a legitimate basis and must, therefore, be criminal and even terrorist in nature. The tendency of the government to react in this way—expressed, for example, through the extreme powers of the Sabotage Act—reflects the myth of the laager, as Mandela notes, or the protective wagon circle with its closed loop and defensive posture that was an actual mechanism of defence for nineteenth-century settlers in South Africa and that, in the twentieth century, became such an important symbol in Afrikaner political discourse.

Mandela works on these myths, first of all, by turning the tables on apartheid and assuming its assumption of absolute legitimacy to be wholly incorrect. He expresses this more directly in statements prior to his speech at Rivonia: in his earlier trial statement in 1962, for example, Mandela began by challenging “the right of this court to hear [his] case” because, as he said, “I consider myself neither legally nor morally bound to obey laws made by a parliament in which I have no representation” (2013). Additionally, when asked whether he pled guilty or not guilty to the charges during the Rivonia Trial, Mandela and his co-defendants responded, “My Lord, it is not I but the government that should be in the dock. I plead not guilty” (1994: 310). A similar claim opens the Freedom Charter, and what is significant about the idea of declaring a government illegal is not simply the declaration itself and the way it counters core myths, but that it is done from an alternative position of authority, or from the jurisdiction of an alternative system of law. This both undermines the myth that Africans are “wild denizens” without law and authorizes them to take action against the infringing body.

Several literary texts explore these concepts in fascinating ways and are worth bringing in here for the sake of comparison. Furthermore, as works of narrative and performance, these texts can help us better recognize and understand the significance of the narrative and mythic elements of Mandela’s speech. For example, in Nurrudin Farah’s novel Close Sesame (1983), the final text in his trilogy collectively titled Variations on the Theme of an African Dictatorship, two of the main characters, a father and a son, begin the novel with a discussion of the concept of lex talionis, or the law of retribution. The current dictator—a fictionalized version of Siyaad Barre—has led a brutal regime, and the son, Mursal, is interested not simply in overthrowing the dictator in a fit of naked power against naked power, but in discovering an actual legal justification for ending the regime. Mursal, a professor of constitutional law, looks to traditional and Islamic law in order to declare the regime illegal. He asks: “does the state in Somalia as we know it have a traditional base in Somali thought? Does the régime of Somalia today have any Islamic legitimacy?” (1983: 11). The answer is no, of course, and Mursal and his co-conspirators make several efforts to carry out—legally, according to their reasoning—a death sentence against the dictator. Similarly, in Ngũgĩ wa Thiong’o and Mĩcere Mugo’s play The Trial of Dedan Kimathi (1976), the main character—the last Mau Mau general captured by the British during Kenya’s State of Emergency—refuses to acknowledge the legitimacy of the court in which he is being tried. The Judge reads the charges against Kimathi and asks how he pleads. Kimathi then declares, echoing Mandela, “I will not plead to a law in which we had no part in the making” (1976: 25). The Judge replies, “Law is law. The rule of law is the basis of every civilized community. Justice is justice.” “Whose law? Whose justice?” Kimathi demands, insisting that the Judge’s tautological explanation conceals the particularity, rather than the universality, of colonial law and its role as a means of protecting the rights of the white minority and denying the rights of the black majority. The parallels with South Africa are, no doubt, clear. Like Farah and Ngũgĩ, Mandela situates himself in such a way as to argue that his resistance to apartheid law through the ANC and MK was not illegal, but, in fact, was the only lawful thing for a “man of the law by vocation” to do (Derrida 1987: 29).