ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 580-582.

THE MAKING OF SOUTH AFRICAN LEGAL CULTURE, 1902-1936: FEAR, FAVOUR AND PREJUDICE by Martin Chanock. Cambridge: Cambridge University Press, 2001. 571pp. Cloth $90.00. ISBN: 0-521-79156-1.

By Stacia L. Haynie, Department of Political Science, Louisiana State University.

Understanding South African law and its "legal culture," like most legal systems, is a daunting adventure. Martin Chanock, of La Trobe University in Australia, set out on such a quest, initially intending to evaluate South African legal culture over the rise and fall of apartheid. Realizing that the type of attention Chanock envisioned to the key players, events and discourses one would encounter on this journey would lead to a tome the equivalent of Tolkein's LORD OF THE RINGS, Chanock chose instead to focus on one critical segment of the saga--1902 to 1936. During this period, South Africa emerges as a unique amalgam of differing voices and forces, ultimately uniting in a carefully knitted fabric, doomed inevitably to unravel. Although the rise of the National Party government with its near myopic focus on "separate development" may be a more interesting segment of the trek, or the ultimate triumph of Mandela and democracy the more compelling climax--these latter parts of the pilgrimage cannot be fully appreciated without the foundations for the legal culture delineated by Chanock's work.

THE MAKING OF SOUTH AFRICAN LEGAL CULTURE, 1902-1936 evaluates the development of the uniquely South African approach to the law. For Chanock, "legal culture" embodies "an interrelated set of discourses about law: some professional, some administrative, some political, some popular" (p. 23). To
appreciate this culture, Chanock argues we must appreciate the "multi-vocality" of these discourses. Though the "law" is often asserted to be a single authoritative declaration with unanimity in its application, social scientists and practitioners know this to be an impossible feat. What Chanock does is to understand the multiple players, particularly the unique approaches to the racial issue developed in each of the major provinces, and then to articulate the way in which these forces come together at the founding of the Union of South Africa. At 538 pages, he does so with a careful and detailed analysis. The book is divided into an introductory
section, followed by assessments of the "legal culture" in various aspects of the law: policing, criminology, labor, penology, criminal law, and the criminalization of political opposition. The latter sections of the text deal with the development of the Roman-Dutch law and the difficulties that followed attempts to integrate and then segregate the customary or native law. Finally, Chanock focuses on the land issues with special emphasis on the pass laws and master and servant contracts. Chanock concludes by noting the legal culture that followed a formal approach to laws within a system that ignored basic human equality.

To evaluate each of these chapters in detail would require a commentary too lengthy for the purposes of the LAW AND POLITICS BOOK REVIEW. Rather, I
will

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focus on one of the areas to which Chanock devotes his attention--land ownership. White South Africans viewed the Roman-Dutch and British common laws as inapplicable to black South Africans. These natives were bound by their own customary laws, which whites should respect. Of course, the deference whites paid to the chieftancies allowed the whites to ignore the rights of black South Africans while asserting due deference to indigenous legal culture. Initially black South Africans were allowed to buy and register land in their own names. By the turn of the century, whites had gained control of the land in the vast majority of South Africa. To allow blacks, a majority of the population, to buy and sell property, clearly limited the capacity of whites to control racial interactions. By 1913, the government passed the Land Act that prevented any land transactions between "natives and other persons." Concomitantly, the act prohibited black sharecropping.

These two aspects of the law prohibited the development of any independent African farming population. The chief represented an interesting exception to the inability of blacks to engage in land sales. The chief, as the owner of the communal lands of the tribe, could sell. Considering all natives to be part of the "tribe" allowed whites to assert that private land ownership was incompatible with native doctrines. Land that "survived white conquest and appropriation" was a communal asset held by the chief. While the chief could acquire additional lands only with white permission, the chief could voluntarily sell parcels without the support of the native community. This left the government in a particularly advantageous position in terms of land ownership. For the Cape, who proceeded cautiously on an
assimilationist path, eliminating land ownership made assimilation impossible. Legal rhetoric that could meld the law with the political assertions of the Cape was problematic. Natal, to the Cape's east and the Transvaal to the north of Natal initially supported individual ownership within the black African areas. The Orange Free State maintained no legal recognition of Africans. Chanock then assesses the government's attempt to fuse these differing philosophies within an overarching framework of racial inequality.

The whole of apartheid rested upon a legal assertion that black and white South Africans were so fundamentally different that integration was neither feasible nor desirable by either party. The land of fantasia envisioned by white South Africans would respect these differences by allowing blacks and whites to separately and individually pursue their autonomous futures. Of course the underlying fiction was problematic on many levels that Chanock addresses quite clearly in these chapters. First, many blacks had been forced to leave their communal lands following the conquest of whites and move to urban areas to survive. Whites had grown to depend upon this cheap source of labor. Many black South Africans integrated well and emerged in the cities with no relationship to their ancestral lands
whatsoever. A legal fiction was necessary to maintain a separation where none existed. Thus black South Africans were given "passes" from their fictional "tribal homelands" into white areas. The second dilemma emerged from those individuals that were neither black nor white and had no tribal lineage. Asians and mixed-raced individuals could not be relegated so easily to some distant "homeland." If the purpose of the law was not racism, but respect--where do these individuals fit? Chanock notes the provincial attempts to finesse these problems and the government's vain efforts

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to segregate within a system of legal rules that decried any racist motivation. Although most countries recognized the inability to reconcile these rules of the law with any meaningful rule of law--South Africa refused. Chanock explains the various paths, or voices, that led to the diverging fork in the road--a unified South Africa or an increasingly segregated one. It is at this juncture that the book ends setting the stage for the National Party to emerge.

Anyone interested in South African legal discourse, or simply interested in the political and social history of race and South Africa law must read this book. Chanock's analysis is thorough, detailed and precise. Only one who truly loves his subject can invest so much into understanding the foundations of apartheid South Africa. This book goes beyond the typical description of the melding of the Afrikaner Roman-Dutch legal heritage and the British common law, positioned over the black South African customary legal structures. It explains this strange amalgam of legal forces and the way in which a uniquely indigenous South African voice emerged from the chorus of political, social, legal and economic actors. Although the journey is far from over for the newly democratic South Africa, this book allows us to understand the making of South African legal culture. I anxiously await Chanock's next volumes in what is sure to be the definitive series on South
Africa's quest to a truly democratic rule of law.

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Copyright 2001 by the author, Stacia L. Haynie.