How should criminal law come to grips with the banality of evil – the phenomenon of a normal person who is unable to tell right from wrong, and who commits grave crimes under circumstances that make it hard for him to know or feel that he is doing wrong? Those circumstances include not only the enthusiasm of Eichmann’s superiors” to “In Eichmann’s case, those circumstances include not only the enthusiasm of his superiors for the Final Solution but also the very nature of Nazi legality, which the chapter analyzes through Ernst Fraenkel’s concept of the “dual state,” where the law in books forbids murder but the dictator’s will supersedes the law in books without repealing it. The problem that preoccupies Arendt is that under these circumstances Eichmann and his ilk lack the subjective mens rea that “civilized jurisprudence” demands to justify punishment. At times she flirts with the idea that unforgivable crimes cannot be punished; the criminals can only be “eliminated.” The chapter argues that this is a mistake. That leaves the question of how to justify punishing criminals who lack subjective mens rea. The chapter concludes with a proposal that thoughtlessness, abdication of judgment, and culpable credulousness are a sufficient mens rea – and thus that the solution to Arendt’s problem is the banality of evil itself.

Marleen Gorris’s feminist classic A Question of Silence (1982) features what may be one of the most memorable court scenes ever filmed: an extended scene of wild laughter that grows and grows to eventually engulf all the women in the courtroom. The scene offers an occasion to think through modes and gestures of feminist refusal. There are other scenes: a fifteenth-century image depicting Calefurnia as it pops up in Julie Stone Peters’ Law as Performance; the bacchants in ecstasy tearing apart the son/king as figured in Bonnie Honig’s reading of Euripides’ play in A Feminist Theory of Refusal; Nancy Spero’s Sheela na gigs… Juxtaposing these and yet other scenes, this chapter returns to critical legal themes of rupture and minor jurisprudence in an attempt to further populate the feminist heterotopia that is the elsewhere of law’s mediation.

This chapter builds on Chapter 2 by explaining the etymologies of the complainant parents’ vernacular normative convictions – centring on Ubu-Ntu – that were woefully misunderstood and dismissed by the court in Komape. Thus, using language to uncover the self-conception and values of pre-colonial southern Africans, such as relational personhood and social organization, it explores how decolonising ‘the common law’ by recognising the Komape family’s world-sense requires focusing on the indigenous intellectual roots of the Ntu. It argues that these offer alter-Native ways of understanding concepts, challenging dominant European frameworks and (il)legalities. The analysis draws from ethnographic constitutional research and the sociolinguistic record, aiming to recover neglected histories of indigenous peoples’ identities and normative frameworks, often oversimplified as ‘customary law’, that still influence contemporary legal norms and social orders. Reclaiming indigenous ways of being and knowing, it highlights the often-muted gendered aspects of indigenous intellectual histories that would contribute to a more holistic understanding of social justice. Ultimately, the chapter calls for rethinking South African constitutionalism beyond Euro-American conceptions thereof, focusing on Ntu legalities and intellectual traditions. This offers a pathway to justice rooted in vernacular perspectives, which remain critical to addressing contemporary socio-legal challenges, as exemplified by the Komape case.

This chapter engages with the scholarship of legal academics Upendra Baxi and Ratna Kapur. In conversation with the academics, I read two of their texts: ‘An Open Letter to the Chief Justice of India’ (OL) co-authored by Baxi and his colleagues Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar; and Subversive Sites: Feminist Engagements with Law in India (SS) co-authored by Kapur and her friend and colleague Brenda Cossman. I look at how, while addressing questions of gender, class and caste, the formation of the OL inhabited conversations between Baxi, his colleagues, a judge, and a tribal girl named Mathura, drawing on whose experiences the letter was written, in late-1970s post-Emergency India. I draw out from these conversations how Baxi shaped his role and responsibility in public life as a feminist law teacher and how, in doing so, he shaped mutual ties with his academic discipline of law. I locate my reading of Subversive Sites in the context of the legal academia from where Kapur and her co-author, Brenda Cossman, conceived the ideas and practices that informed the writing of their book. SS inhabited Kapur’s conversations in the early 1990s after the economic liberalisation of India, with her friend and colleague Cossman and the Indian women’s movement. Through these conversations, Kapur shaped her role and responsibility in public life as a post-colonial feminist legal scholar, and in doing so, formed mutual relations with her academic discipline of law.

Chapter 8 summarises and concludes the analysis presented in the previous chapters. As highlighted throughout the book, the power of the courts to effectively protect freedom of expression is limited in the face of global digital networks and powerful private technology companies. This makes it all the more important to recognise not only the individual but also the institutional dimension of fundamental rights as objective value judgements under constitutional law, the implementation of which falls under the state’s duty to protect. Given the enormous technical and social complexity of the digital revolution, this task can only be accomplished through legislation.

In conversations with sex workers and members of VAMP, this chapter engages in the reading of activist texts published by VAMP. The reading and conversations about the texts are located at VAMP’s collective organisational site in Sangli, Maharashtra. Like DMSC, VAMP also emerged through a specific set of conversations between sex workers and others. These conversations were held amongst sex workers, a non–sex worker women’s organisation called Sangram, Dalit and non-Dalit feminist groups in Maharashtra, and Dalit and non-Dalit men’s groups in Sangli. The conversations consolidated women’s collectivisation in Sangli as businesswomen, or dhandhewali, which was achieved through the formation of mutual relations between sex workers’ lives and law. Thus, the sex workers formed VAMP as a registered NGO under state-authorised rules. Through the process of registration, the women shaped their role and responsibility in public life as dhandhewali, and reorganised their specific hierarchical relations of gender, class and caste in Sangli. Simultaneously, sex workers’ relationship with the state, mediated by the reorganisation of hierarchies in their community, attained a form that was distinct from their state-authorised criminal status and conditions.