JOURNAL OF UWC FACULTY OF LAW | ISSN 2077-4907 | Short URL www.ldd.org.za

Fundamental rights and democratic contestation: Reflections on freedom of assembly in an unequal society, pg 221

Volume: Volume 21 - 2017

Article type: Refereed article

Author/s: Botha, Henk

In this article, I argue that the impoverished conception of freedom of assembly displayed in legislation and case law, and its neglect in academic literature, has to do with a set of dominant understandings of democracy. These understandings are structured in terms of certain hierarchical oppositions: between institutional and extra-institutional politics; between representative and direct democracy; between rational deliberation and political antagonism; between reason and affect; and between speech and action. I argue that these understandings, together with the narratives which help to sustain them, are problematic for a number of reasons: first, they do not pay sufficient attention to forms of power that are deeply ingrained in societal structures; secondly, they underestimate the constitutive role of conflict and antagonism in political life; and thirdly, they underplay the role of affects and passions in democratic struggles. Through my critique of these assumptions and understandings, I attempt to develop a more adequate understanding of the relationship between democracy and the right to assemble and demonstrate.

About the author/s

Henk Botha

Professor, Department of Public Law, University of Stellenbosch.

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