The law does not expect persons who find themselves in an emergency situation to value the lives of others higher than their own. This was the reasoning of the South African Appellate Division in the case of State v Goliath 1972 when it justified the killing of another person to save one’s own life12. This ultimate hierarchy between self and other seems to be inevitable. Its inevitability is the source of all economic competition. It is the source of the feudal and the colonial.
To what extent can this hierarchy be resisted and who will be moved to do so?
Karin Blixen (1954, p13) wrote: ‘I had a farm in Africa’. She owned a farm in Africa in a context of undeniable colonialism, a colonialism from which we can hardly argue her to have been exempted. She was a European settler who used her land to produce coffee for a European market. She certainly aimed to do so for her own benefit. As is the case with all private legal subjects, as was also the case of Leopold II, she utilised what she owned for her own benefit. Why could one therefore nevertheless suggest that she gave a different meaning to the Leopoldian possession of a farm in Africa?
On the farm at the foot of the Ngong hills, or rather, at the foot of the Ngong hills, on land that later became Blixen’s farm, lived the Kikuyu people. When the land became Blixen’s, they continued to live there. Legally speaking, they continued to live there at her mercy. She had the right to evict them should she have pleased to do so. Yet, the relationship between her and the Kikuyu people was, at least psychologically speaking, a little more complicated than a common landlord-tenant relationship. The following passage close to the end of Out of Africa is quite significant in this regard. The coffee plantation had turned out to be a financial failure and she had had to sell the farm. The passage expresses her concern with the fate of the Kikuyu people subsequent to the transfer of the farm to the new owners:
‘The fate of my squatters weighed on my mind. As the people who had bought the farm were planning to take up the coffee-trees, and to have the land cut up and sold as building plots, they had no use for the squatters, and as soon as the deal was through, they had given them all six months’ notice to get off the farm. This to the squatters was an unforeseen and bewildering determination, for they had lived in the illusion that the land was theirs. Many of them had been born on the farm, and others had come there as small children with their fathers.
The Squatters knew that in order to stay on the land they had got to work for me one hundred and eighty days out of each year, for which they were paid twelve shillings for every thirty days; these accounts were kept at the office of the farm. They also knew that they must pay the hut-tax to the government, of twelve shillings to a hut, a heavy burden on a man, who with very little else in the world, would own two or three grass-huts - according to the number of his wives, for a Kikuyu husband must give each of his wives her own hut. My squatters had, from time to time, been threatened to be turned off the farm for an offence, so that they must in some way have felt that their position was not entirely unassailable. The hut-tax they much disliked, and when I collected it on the farm for the government, they gave me a great deal to do, and much talk to listen to. But they had still looked upon these things as common vicissitudes of life, and had never given up hope of somehow getting round them. They had not imagined that there might be, to them all, an underlying universal principle, which would at its own hour manifest itself in a fatal, crushing manner. For some time they chose to regard the decision of the new owners of the farm as a bugbear, which they could courageously ignore’ (Blixen, 1954, pp 317 -318, emphasis added)13.
She had the right to turn them off the farm and had often threatened to do so. Yet, they continued to live under the illusion that the land was theirs. She, like the hut-tax and the new owners, was looked upon as one of the common vicissitudes of life that one would have to face wherever one might live. She was for them like a natural difficulty that came with or came to the land they lived on. This woman who made them work for her and took money from them and often threatened to chase them away for reasons they probably did not understand, was akin to something like seasonal flooding that simply made life more difficult than it could have been, but did not alter the fact that the land was theirs to live on. One should also ask the question to what extent she lived on the farm at their mercy. As a woman who lived alone on the farm for long periods, her position was certainly ‘not unassailable’ either. Who was at the mercy of whom?
Albert Camus’ short story L’hôte deals with a French geography teacher in Algeria who gets saddled with the task to take an Arab prisoner to the closest police station. The teacher does not take the prisoner to the police station, but simply explains to him where it is and leaves it up to him to go there of his own accord. When he lets the prisoner go, his heart leaps in his throat, not knowing what the prisoner is going to do. After a while he notices that the Arab is indeed on his way to the police station. Again the colonial context. Again the relationship between the coloniser and the colonised. But again, a certain horizontality that makes it unclear who is at the mercy of whom, who is being hospitable to whom. Derrida (1999c, pp 117-120) comments on the story, noting Camus’ genius to consist in the way he maintains the ambiguity of the French word l’hôte which means both ‘host’ and ‘guest’ and thus leaves open the question as to who is the host and who is the guest. The story thus portrays a non-subjective hospitality that exists between the French teacher and the Arab prisoner and cannot be said to originate in either one of them. At issue is for Derrida a certain event of hospitality, a certain differential event that graciously lets both the teacher and the prisoner be. For a moment at least, the hierarchical or vertical relation between the coloniser and the colonised is replaced or displaced by a horizontal relationship of mutual responsibility.
Can it not be argued that a similar displacement of the ubiquitous hierarchical coloniser-colonised relation takes place in Blixen’s narrative? Is there not ultimately a certain graciousness or hospitability, a certain acceptance of equality and absence of hierarchy, in the ownership that allows ‘squatters’ ‘the illusion that the land [is] theirs’? And is this ‘illusion’ that the land ‘is theirs’, not theirs ‘in ownership’, that is, not technically or legally speaking their ‘property’, but simply ‘theirs’ to live on in the face of the ‘common vicissitudes of life’ not more real than the fiction of private property through which legal subjectivity seeks to enjoy more security than is warranted to mortals? Does this illusion not relate to a Thomist regard for a reality of existence and common survival that transcends the legal fiction of private ownership? (Van der Walt, 2001a, pp 524, 532) And did Blixen not share with them this Thomist ‘illusion’ when she proceeded to take it on herself to see that the ‘squatters’ be provided with alternative land? Does this mutual ‘illusion’ not, at least, constitute a certain deferral of the seemingly inevitable identities of the possessor and the possessed? Does this deferral not allow for a remnant of difference between the self and the other and thus for a remnant of plurality?
Is there not, as Merleau-Ponty (1964, p 319) puts it, a certain dispossession to be thought here? Is there not at issue a certain paradoxical ‘belonging to both (everyone) and no one’ that Lefort would aver to exist at the heart of constitutional democracy? And is the dispossessing paradox to be grasped here not the heart of the political or the public that brings us together on a horizontal plane as more than one, a more-than-one that exceeds the ‘verticalising’ and unifying or plurality-destroying logic of possession, possession that is always feudal possession, possession that reduces the possessed to a non-other, to a mere extension of the self? Is the dispossessing paradox of the political that brings us together as more than one not that which makes us mutually responsible for each other’s well being? Would this mutual responsibility not prohibit the selling of expensive arms to a government that cannot afford to buy them? Would this mutual responsibility not require the government that nevertheless go ahead to buy these unaffordable arms to come and justify the purchase to its citizens, to come and explain why they seem to use what little wealth the people have as if it is theirs to do with as they please? And why should constitutional review and the application of fundamental rights not be invoked for purpose of this justification if the electoral process no longer seems to fulfil this function or will only be able to do so when it is much too late to repair the damage? It will soon become clear what the South African judiciary might think of this argument.
What about the conduct of Daimler-Benz? Can one take legal action against a company that manipulates the constitutionally guaranteed process of collective bargaining by threatening to simply leave the country when it does not get its way? Blixen had no option but to sell the farm and return to Europe after the failure of the coffee plantation. Yet, ‘[t]he fate of [her] squatters weighed on [her] mind’ when she had to leave and she took responsibility for this fate. Daimler-Benz’s conduct seems to be in stark contrast with this responsibility. The threat to pull out after a week-long strike appears to be informed by economic expedience, not economic necessity. It does not strike one as at all bothered by the fate of others. But can one take legal action against economic expedience? The law certainly cannot address all social and moral conflicts. Yet, the argument regarding the horizontal application of fundamental rights developed above would suggest that economic expedience be subjected to constitutional review when it threatens the fundamental rights of others. Can one legally force a company to continue to do business in a country? This is most doubtful. Can one threaten to expropriate their assets when they threaten to pull out? This appears to be more plausible. One can imagine, however, the disastrous impact such a threat would have on a country that appears to have staked its economic survival on foreign investment, foreign investment that clearly cannot yet be said to have broken out of the self-serving logic of feudalism or colonialism. How does one get out of this mess?
But why would one retreat from the feudal logic of possession and self-enrichment? What attraction could non-ownership and mutual responsibility for one another hold for us? This question should perhaps not be asked. Hospitality to and responsibility for one another simply attracts us. It befalls us like unexpected grace, Derrida (1999a, pp 151-152) tells us. The understanding of hospitality and responsibility in terms of an unexpected occurrence does not leave us powerless in the face of feudal possessiveness. The fact of its occurrence is exactly that which already informs the critical insight that feudalism is to be resisted. But this seems to leave us with the stark reality that some are visited by a gracious hospitality and responsibility and some are not. Unscrupulous arms dealers and reckless governments are not and that is that. Those who are visited by the grace of responsibility and hospitality must and will resist them and that is that. That is indeed that. However, a certain political activist, herself patently visited by a less graceful if not less gracious responsibility, will still sense an element of acquiescence here. She would want to invoke a truth with which the ungracious can be persuaded to become gracious. For her the question persists: What attraction could non-ownership and mutual responsibility hold for us? Why resist feudalism and colonialism? Deconstruction has become notorious for not wanting to invoke truths on which political action can be based and the Derridean notion of a responsibility that simply seems to befall or overcome us does not appear to go out of its way to prove the contrary.
And what if deconstruction would attempt to make the politics of dispossession or the dispossession of the political attractive or persuasive by relating it loosely to pleasure, the simple dispossessed, dispossessing and therefore non-possessive pleasure of being and coming together as more than one, as citizens, as friends, as lovers? In Sidney Pollack’s 1986 cinema production of Out of Africa, Karin Blixen is portrayed to have said the following prayer at the grave of Denys Finch Hatton:
‘Take back the soul of Denys Finch Hatton whom You have shared with us. He gave us pleasure. We loved him well. He was not ours. He was not mine’14.