Fundamental rights and democratic contestation : reflections on freedom of assembly in an unequal society
CITATION: Botha, H. 2017. Fundamental rights and democratic contestation : reflections on freedom of assembly in an unequal society. Law, Democracy & Development, 21:221-238, doi:10.4314/ldd.v21i1.11.
The original publication is available at http://www.ldd.org.za
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.