Identities, Politics, and Rights

The Discourse of Rights in Colonial South Africa: Subjectivity, Sovereignty, Modernity

The Discourse of Rights in Colonial South Africa: Subjectivity, Sovereignty, Modernity John Comaroff The Law is the greatest thing imaginable. That's true because it's absurd. [Without] equality ... all rights are chimeras. -Carlos Fuentes, The Campaign Introduction It has become commonplace to note the centrality of law in the colonization of the non-European world; commonplace to assert Mindie Lazarus-Black and Richard Werbner read earlier drafts of this chapter; I am grateful to both for their generous, insightful comments. As always, I am deeply indebted to Jean Comaroff for her critical acuity and creative eye. The errors of fact and judgment are, of course, mine alone. In annotating unpublished archival sources, I refer to the London Missionary Society as the LMS; its records are part of the Council of World Mission (CWM) papers held at the School of Oriental and African Studies (SOAS), University of London. Housed there too are the archives of the Wesleyan Methodist MiSSionary Society (WMMS), to which reference is also made. Letters, journals, and reports are identified by author, place, and date of writing; also given, in each case, is the archival category, box, folder, and jacket in which the document is housed at SOAS. Carlos Fuentes's novel, The Campaign (New York: Harper Collins, 1992), from which the epigraph is taken, is set in South America in the early nineteenth century. These lines-found on pages 202 and 211-12-are uttered by characters caught up in the independence struggle against Spain. 193 194 IDENTITIES, POLITICS, AND RIGHTS "its" role in the fashioning of new Eurocentric hegemonies, in the creation of colonial subjects, in the rise of various forms of resistancet -vide, lately, Mann and Roberts's excellent Law in Colonial Africa.2 In all this, the discourse of rights has been a recurrent theme, albeit sometimes a submerged, secondary one. Historically speaking, the manner in which legal sensibilities and practices entered into colonizing processes, into their dramatic gestures and prosaic theaters , turns out to have been more subtle, less audible, murkier, than is often suggested. But, no matter, the general point has been made many times. Is there anything new to say? Anything other than confirmatory detail to add? Perhaps the most coherent statement of received wisdom on the role of rights in colonial southern and central Africa is to be found in Martin Chanock's consistently insightful writings on the invention of customary law.3 Treating property, after Bentham,4 as the quintessential context in which rights are constituted, conjured with, and called into question-and, simultaneously, stressing "the power of discourses to shape reality"5-he argues that European colonizers took 1. I place it in quotation marks to note the fact that several disparate things are often lumped together under the term law in the anthropology of colonialism-among them, (European) legal institutions and sensibilities; constitutional and administrative processes; dispute management of diverse kinds; and the workings of "customary" law; cf. Francis G. Snyder, Capitalism and Legal Change: An African Transformation (New York: Academic Press, 1981), 6. 2. Kristin Mann and Richard Roberts, eds., UlW in Colonial Africa (London: James Currey, 1991). Mann and Roberts introduce their volume with a comprehensive overview of recent scholarship on law and colonialism in Africa; they also include a large bibliography. For two other review essays on law, colonialism, power, and resistanceboth thoughtful and cogently argued-see Sally Engle Merry, "Law and Colonialism: Review Essay," UlW and Society Review 25 (1991): 889-992 and Susan F. Hirsch and Mindie Lazarus-Black, "Introduction," in Contested States: UlW, Hegemony, and Resistance, ed. M. Lazarus-Black and S. F. Hirsch (New York: Routledge, 1994). }. See Martin Chanock, UlW, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985) and "Paradigms, Policies, and Property: A Review of the Customary Law of Land Tenure," in UlW in Colonial Africa, ed. K. Mann and R. Roberts (London: James Currey, 1991). 4. Chanock quotes Jeremy Bentham's statement that "property and law are born together, and die together"; Chanock, "Paradigms, Policies, and Property," 62. The citation he gives, though, is not to the original (J. Bentham, Principles of the Civil Code [Edinburgh: W. Tait, 18}8), chap. 8, "Of Property"), but to the excerpted version in Property: Mainstream and Critical Positions, ed. Crawford Brough Macpherson (Oxford: Blackwell, 1987), 52. 5. Chanock, "Paradigms, Policies, and Property," 62. THE DISCOURSE OF RIGHTS IN COLONIAL...