Search

A research journey is not planned but develops according to where one is geographically, and the politics of the broader world, and of scholarship, at the time. My journey took me from South Africa, through England, to Africa in the period after decolonisation, and finally to an inter-disciplinary School at La Trobe University. My research, with its foci on colonialism, and a post-colonial world that continues to be dominated by the Global North, reflects this.

The chapter describes the history of the anthropology of law from the mid-nineteenth to the mid-twentieth century. It shows how legal anthropologists failed to foreground the profound economic changes brought about by imperialism, especially the impact of markets for labour and goods, along with the consequent legal individualization. It places the development of the discipline of legal anthropology firmly within the context of imperial rule, emphasizing the centrality of the fact that the subjects of study were also subjected to empires. Situated within this context, legal anthropology shared imperial governments’ agenda of searching indigenous legal systems for modes of authority and for rule-based law. Even as it cast aside its early racist and evolutionist premises, the discipline’s new functionalist methodology, because it was not attuned to recognizing and analysing change, failed to understand how new ideas about property and coercive marketization were affecting the legal worlds of imperial subjects.

Diana Gordon. Transformation and Trouble: Crime, Justice, and Participation in Democratic South Africa. Ann Arbor: University of Michigan Press, 2006. xiii + 382 pp. Notes. Bibliography. Index. $75.00 Cloth. $27.95. Paper. This is a good book on an important subject. The issue of pandemic criminality is the common dark side of transitions to democracy. (One of the many virtues of the book-all too rare in discussions of South Africa-is its awareness of similar problems in other countries.) In all democracies the question of which responses will, on the one hand, reduce crime, and, on the other, ensure that the criminal justice system adequately addresses crime are complex. As a society in which exaggerated hopes accompanied the apparent "miracle" of its transition from the horror of apartheid to the accomplishment of the human rights state, South Africa has had to face an efflorescence of ongoing criminal violence for which few were prepared. The new constitutional bill of rights contains extensive provisions to ensure that the oppressive policing and legal practices of apartheid criminal justice are repudiated. The landmark decision of the Constitutional Court declaring the death penalty unconstitutional set the tone for a completely new approach to a democratized criminal justice. New policing and new courts, both operating within a human rights framework, were envisaged. The weakest parts of the book are the two early chapters on pre-apartheid and apartheid justice, which deploy the customary narrative of racist evils; the title of chapter 3 ("Bitter Fruit from Poison seeds") sums up the basic argument advanced. While Gordon flirts with the idea that data regarding crime increases are not reliable, and that increases may be due to increased reporting, she does conclude that "violent crime is rampant-with women and children victimized in appalling numbers" (93). Indeed, it is violence against persons that characterizes South African crime. Essentially the author attributes crime to the structural inequalities bequeathed by apartheid, and as these conditions persist she envisages no early change, despite "thrilling democratization" (95). There are also the connections between the violent political resistance to apartheid and its carryover into criminal violence. And she claims an analogy with child abuse: "As abusing adults often reflect experience as abused children, those who are violent in South Africa have lived in the shadow of an abusive regime, even if they have not experienced its violence directly and physically" (100). …

For many nations, a key challenge is how to achieve sustainable development without a return to centralized planning. Using case studies from Greenland, Hawaii and northern Norway, this 2006 book examines whether 'bottom-up' systems such as customary law can play a critical role in achieving viable systems for managing natural resources. Customary law consists of underlying social norms that may become the acknowledged law of the land. The key to determining whether a custom constitutes customary law is whether the public acts as if the observance of the custom is legally obligated. While the use of customary law does not always produce sustainability, the study of customary methods of resource management can produce valuable insights into methods of managing resources in a sustainable way.

This chapter considers the future of legal formalism in South Africa. By formalism I mean the broad ideology of Western law which separates the ‘legal’ from the ‘politicar both institutionally and in terms of justification for decision making. Legal formalism amounts in fact to a paradigm in which legal decisions are made according to legal rules and doctrines. Rights and entitlements made according to these rules are seen in turn as different from substantive decisions in which political and other considerations govern.

This essay outlines a general framework for thinking about African ideas about proprietary rights and considers how this might produce insights into ideas about social relations.Drawing largely on examples from East and Central Africa, and on an analysis of property disputes pursued to the Natal Native High Court, it is suggested that the development of a customary law came first to the ‘law of persons’ and then to the ‘law of property’. Ideas and disputes relating to land and to other forms of ‘old’ and ‘new’ property are all examined. Ideas about what were and were not commodities, and about different ways of dealing with kin and with strangers, are shown to be fundamental to the understanding of disputing behaviours and the meaning of customary norms. Disputes were not simply about ownership and value but about the changing boundaries of commodity status. Ideas about appropriate behaviour regarding the transactional order between kin concerning ‘old’ property (food and cattle) extended into the dealings between strangers about ‘new’ property (acquired with money through the market), whilst the ideas and practices of the market economy had a significant effect on the way ‘old’ property was dealt with among kin. The development of the customary law related to property also has a particular relevance in understanding generational conflict in Africa.It is argued that customary law was formed in the process of a dialogue between rulers and ruled during the colonial period. The colonial state impeded the development of individual tenure by the ‘invention’ of communal tenure but was ambivalent in response to attempts by younger men, and by women, to separate estates from the control of older males.

THE PURPOSE OF THIS ARTICLE is to look at the ideological formulations which followed the imposition of European political authority over Malawi (Nyasaland) and the cultural and economic changes which accompanied it, and to try to illustrate the growth through time of a Malawian political culture. Malawian politics has a 'revolutionary tradition' encompassing the Chilembwe revolt of 1915 on the one hand and the period after the Second World War on the other, when politics was dominated by the question of closer association with Southern Rhodesia which provoked a determined, widespread and successful reaction against white political authority. Yet the fact of growing resistance to alien rule is not the only remarkable feature of the colonial period. The depth of Malawian acculturation to the values of their rulers over a period of some seventy years is also clearly of significance. Virtually all political, cultural and economic life involved coming to terms with the white world, to which, in varying degrees, adjustments had to be made. Where men situated themselves between the African past and the white colonial present was basic to the formation of their political attitudes. In Malawi with its history of intense missionary effort and its position on the periphery of white Southern Africa, consideration of the relationship of the tensions of acculturation to the formulation of political attitudes must be an ingredient in the study of political history. It is not unusual for a conquest situation to produce disaffection and a generalized nostaligia for the old order. The old days, however, soon became idealized, with different groups drawing from them, and stressing differing values which were supposed to be inherent in them. To the 'traditional' authorities-chiefs and headmen-the past often meant an idealized stability and a world in which their authority had been firm and unchallenged, whereas the younger intellectuals after the Second World War perceived a past of idealized equality and an authority resting upon mutual consent. Both groups were prepared to base the values of the political future upon the values of the past, though their views of the past did not coincide. The bulk of the political

This article outlines the approach to the writing of South African legal history being taken in a book in progress on the South African legal system between 1902 and 1929. It suggests that legalism has been an important part of the political culture of South Africa and that, therefore, an understanding of legal history is necessary to a comprehension of the South African state. It offers a critique of the liberal notion of the rule of law as a defence against state power, arguing that in the South African context ideological and legitimising explanations of law should be de-emphasised in favour of an approach which emphasises the instrumental nature of law in relation to state power. Elements of the existing legal and historical literature are briefly reviewed.The basic orientation is to consider the South African legal system as essentially a post-colonial British system rather than one of ‘Roman-Dutch law’. The study is divided into four parts. The first looks at the making of the state between 1902 and 1910 and considers the role and meaning of courts, law and police in the nature of the state being constructed. The second discusses ‘social control’. It considers the ideological development of criminology and thought about crime: the nature of ‘common law’ crime and criminal law in an era of intensified industrialisation; the development of statutory criminal control over blacks; and the evolution of the criminalising of political opposition. The third part considers the dual system of civil law. It discusses the development of Roman-Dutch law in relation to the legal profession; and outlines the development of the regime of commercial law, in relation to contemporary class and political forces. It also examines the parallel unfolding of the regime of black law governing the marital and proprietal relations of blacks, and embodied in the Native Administration Act of 1927. The final segment describes the growth of the statutory regime and its use in the re-structuring of the social order. It suggests that the core of South African legalism is to be found in the emergence of government through the modern statutory form with its huge delegated powers of legislating and its wide administrative discretions.