SALUS POPULI SUPREMA LEX ESTO (BADIOU et alii)

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The Editor’s note Sometime in March, I contacted Alain Badiou. An article he had written had been rejected, or shall we say “censored” by a French newspaper of (so-called) record. His essay dealt with the French Yellow Vests (Gilets jaunes) movement which, at that stage, had clocked up another record in a country that is supposed to be a benign democracy (and is in reality an illiberal republic): hundreds of injured protesters, and worse; and no result, being outmanoeuvred by managerial politics. I wrote to him, asking whether he would let AYOR publish it. “Bien entendu” was his immediate response. I let those who understand French to weigh those two words: “bien/entendu”. Aware of Badiou’s scepticism about rhetoric I tried to assuage him by ending my entreaty on this aphorism: salus populi suprema lex esto. He shot back with a line from Tacitus, that was drilled into us at school as the suprema lex amoris: “Titus Berenicem invitus invitam dimisit.” He added: “La rhétorique latine m’a toujours impressionné.” In that rhetorical line of thought, nothing has or will ever match the terseness of a Latin prose clausula or the imperious clarity of a Latin judicial apophthegm. Badiou’s essay is about the stunning salus populi suprema lex esto; and why, inviti invitos, Gilets jaunes protesters dismissed themselves at the very moment they thought they were embodying salus populi and forcing onto government the esto of their protests. Esto? It is a strange word, and while volumes have been written about salus populi suprema lex, less attention has been paid to esto. Scholars versed in the history of Roman law have shown how the imperative mode was the key rhetorical element to the power of laws, starting with the Twelve Tables. The grammatical imperative became the jussive mode, which is simply lost in translation when paraphrased by “shall” or “shall be”. Interestingly, one rhetorical way in which jurisprudence asserted its prudent claim to interpretatio of the laws was to mimic, rhetorically, the jussive command inherent in decemviral laws. If one believes this is not a contemporary issue relevant to law and rhetoric, it suffices to read the Epilogue of the Interim Constitution of South Africa (1993). The Epilogue is jussive: “In order to advance such reconciliation and reconstruction, amnesty shall be granted.” This is an esto, and with the arresting cadenza of a Latin clausula too. The primordial, sacerdotal esto was injected into a constitutional process, thus creating a dual foundation – an ethical foundation through the Truth and Reconciliation Commission (TRC); a political one through the Constitution. This uneasy duality remains the conundrum at the heart of the South African polity. The epilogical esto remains jussive, as Desmond Tutu has ceaselessly reminded politicians. The esto that grounds reconciliation is supposed to operate continuously, imperatively, modelled on the theological concept of a creatio continuans. While the political class considers the TRC to be a semelfactive event, something that happened once, but is now done with and gone, by contrast the jussive concept of reconciliation ought to remain active, if salus populi is to be suprema lex. Philippe-Joseph Salazar The Editor’s note i ‘“I have forgotten my umbrella’”: On the abdications of style in law and rhetoric Jaco Barnard-Naudé 1 Lessons from the “Yellow Vests” movement Alain Badiou 14 Sovereign terror, legal style, Giambattista Vico, and the military drone as rhetorical archetype Ian E.J. Hill 20 The style of a mark: The scandal of free speech in Matal v. Tam Sarah Burgess 36 Viserbal laws: On an arbitral modality recently adopted in judgments Peter Goodrich 50 Performing imperious legal style: Saleh v. Titan Corp et al. and private military contractor accountability Timothy Barouch 61 The pigeonhole dictated by logos: Behind the text in Volks v. Robinson Dennis Davis 73 When third parties are hard to find: In search of lost institutions Romain Laufer 86 Thrasymachus’ katabasis: Relations of power and ideological struggle in Plato’s Republic Book I Sergio Alloggio 98 The gates of Tripoli: Power and propaganda in post-revolutionary Libya Nathaniel Greenberg 115 Law and rhetoric: An analysis of the rhetorical techniques employed by President Cyril Ramaphosa to restore the rule of law in South Africa Sifiso Ngesi 129 A song of forgiveness: The dialectic between the rhetoric of place and the rhetoric of self in Marlene van Niekerk’s Agaat Thapelo Teele 145 “With no sanction for lying”—Recollecting the potential of a few dispossessing words Erik Doxtader 163