As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In a constitutional democracy, debates, arguments and other forms of disagreement about political or social issues can often be raucous, messy, chaotic, infuriating, irrational and even upsetting.
People sometimes shout slogans at one another (SOMETIMES, IN PRINT, THEY USE CAPITAL LETTERS AND EXCLAMATION MARKS IN THE BIZARRE BELIEF IT WILL HAVE A BIGGER IMPACT!!!!!!!). People also call one another names, or – oh so very pleased with themselves and exuding the hubris far too prevalent among those who have never been Othered or systematically discriminated against – they re-state questionable ideological beliefs or demonstrably false facts as if these are absolute and incontestable truths of shattering originality.
While arguing a point, some inadvertently or even unknowingly reveal their bigotry (their racism, sexism and homophobia, their class prejudices which blame the poor for being “lazy” or suffering from a “sense of entitlement”) for the entire world to see and judge.
Sometimes, people are too lazy or angry or lacking in the ability or will to construct a counter-argument to engage in the substance of the dispute, in which case they often try to shut up an opponent by deploying mechanisms to discredit their opponent instead of trying to discredit the opponent’s arguments.
Sometimes an opponent who raises an awkward point is labelled a secret agent for the DA (if the person wishes to defend the ANC) or an ANC lackey (if the person blindly follows the DA). An opponent can also be shut up by telling him or her that he or she is “playing the race card”, or is acting like an “angry feminist” or “shrill homosexual”, or lacks a sense of humour.
Nevertheless, and quite surprisingly, important and interesting opinions and insights (on both sides of an argument) can emerge from these chaotic exchanges – despite all the noise, the empty threats and red-herrings and numerous other techniques used to end debate or avoid engaging with the substance of an argument.
I would contend that this is so because it is surprisingly difficult always to draw a bright-line boundary between ad-hominem attacks and substantive arguments.
A person who holds strong opinions and is willing to construct plausible counter-arguments may launch carefully chosen (and sometimes witty) insults to “frame” the debate and the issues or to “place” the opponent on the ideological spectrum, which assists bystanders to understand what the disagreement is about and what is at stake in the exchange.
For example, when an opponent stereotypes black people or presents arguments steeped in patriarchal views, a first step to dismantling such arguments may well be to point out that the opponent, in your view, holds racist or sexist views. By doing so you lay the groundwork for a more substantive engagement with the opponents arguments.
Of course, sometimes, the ideological views of an interlocutor would be so outrageous or morally offensive, the factual basis for their argument so obviously false, or their prejudices so disgusting, that you feel ethically compelled to name and shame the person as a racist, sexist, homophobe or somebody harbouring class prejudices.
Such a naming and shaming, in my view, is more effective if you then proceed to develop an argument explaining exactly why you have labelled a person a racist, sexist, homophobe or classist. But the naming and shaming itself fulfils a purpose over and above that of vilifying your opponent – it asserts the moral framework within which your criticism of the opponent is being made.
While I bemoan the fact that those who disagree with an argument often do little more than shout angry insults at opponents in an attempt to discredit them, I understand that democracy is often messy and chaotic and that this cannot be entirely avoided.
It is therefore a good idea to develop a thick skin when entering debates. It is also advisable to inform yourself about the the subject matter of debates and read up on concepts and ideas employed by others. Most importantly, it may save you much embarrassment if you develop an understanding of the way in which your own experiences (and your ignorance about the experiences of others) influence your worldview and your opinions about the world.
But it is also a good idea to remember that in a democracy we all have a voice and a right (within the limits of the law) to express our views and opinions – no matter how daft they may appear to others.
No one has an inherent right not to be labelled, ridiculed or attacked for expressing a particularly controversial or unpopular opinion or an argument that those with less social and economic power than yourself may view as bigoted or plain dumb.
Neither do the racists, sexists, homophobes or classists have a right not to be called out on their racism, sexism or homophobia or class prejudices.
Like any other person in South Africa, those who have actually experienced homophobia, racism, sexism or class prejudice have a right to take issue with a person whose views seem to be embedded in prejudice or who is blind to the ways in which racism, patriarchy, heterosexism and class elitism continue to exert a powerful influence on the way the world is structured and social status and economic benefits are distributed.
Strangely, it is often those who (as a group) are the most privileged members of our society – white, heterosexual, middle class men – who seem incapable of dealing with the rough and tumble of robust and messy debate. (Of course, I am not claiming that all or even a majority of white, middle class, heterosexual men play the victim card when they are called out on the bigotry that frequently goes hand in hand with privilege.)
Suddenly turning themselves into victims, they claim that those who call them out on their prejudices are “calling them names”, are “strident”, and are “angry” or “shrill”. Instead of constructing a coherent argument, based on their stated worldview and ideological commitments, explaining why their argument is not bigoted, they complain that they are being censored. Their opponents are branded as enemies of free speech for daring to point out what appears to be deeply embedded and (often unacknowledged) prejudice.
This is obviously nonsense.
Now it might well be that a person who is vigorously attacked for espousing racist, sexist, homophobic or class prejudices, will be able to counter the accusations by setting out a coherent explanation of what racism, sexism, homophobia or class prejudice entails and demonstrating that his views cannot plausibly be classified as such.
In doing so it will of course not be helpful merely to assert – from your position of privilege – that you just do not yourself see the prejudice and that, hence, the prejudice does not exist. It is never a good argument to tell those who actually experience racism, sexism, homophobia and class prejudice every day that their own experiences are just not true. Such an argument is no more than an attempt to assert your privilege by denying others their lived experience. More would be required.
But freedom of expression cannot thrive where people try to stop others from expressing their views merely because these views are unkind or strident, or because it casts you in a bad light.
Yes, this chaotic exchange of ideas, vigorous criticism and even the hurling of insults can be difficult to handle if you are insecure or uninformed. But it’s time we all buck-up and grow a backbone.
And how do I suggest we do that? Not by acting out your macho fantasies and intimidating those with less testosterone than ourselves. Rather by reading more, by learning more about how other people feel and think, by being more self-critical and self-reflexive.
After all, few people who are confident of their own opinions – because they know their opinions are informed by sustained critical thought (and not inherited platitudes), copious reading (and not self-referential experience), and an ability to reflect on their own lives and the views of others (and not on the prejudices of their mates shared around the braaivleis fire) – will be intimidated by criticism or even vicious attacks by others.BACK TO TOP