The Making of South African Legal Culture, 1901-1936: Fear, Favour and Prejudice (review)

Martin Chanock takes a refreshing approach to legal history, viewing it as a cultural product. As such it is in constant flux, responding to the issues of the day while recreating itself. This approach is a fine complement to histories that view South African law as forged in the Roman Empire and the Renaissance, ignoring its adaptation to the processes of colonialism and apartheid.

A second major theme of Chanock's excellent work is that of multiplicity. It is his contention that South African law developed in response to a number of claims and influences. He says that no single voice dominated its development. Thus, many factors figured into its development, each competing and sometimes cooperating in its shaping.

Finally, Chanock claims, quite rightly I believe, that his work has implications beyond the understanding of South African legal culture. It is part of "a larger process of legal colonization—a transfer of ideas, images, doctrine, institutions and legislative models" that marks the period Chanock covers. This insight into a more general process lends greater weight to Chanock's book. It indeed provides a general frame for understanding the colonial process.

Chanock chooses the period of 1902-1936 because that period spans the end of the Boer War to the solidification of the white consensus on segregation and the establishment of the state. It is a period in which the legal systems of the various white settlers accommodate each other at the expense of the African and other colored populations of South Africa. Each aspect of the law gives the state dominance over the people while enforcing segregation, even using African customary law as a tool in segregation.

In eighteen well-written and powerful chapters, Chanock lays out his case. He clearly demonstrates the manner in which cultural issues shape the course and content of the law. His use of narrative in the first chapter captures the reader, drawing him or her into the unfolding of the tale. Every aspect of the law is covered in Chanock's painstaking research. The proof of good research is in the clarity and authority of his writing. After providing a succinct account of his methodology, Chanock proceeds to detail the development of the police and policing, the place of South Africa within the international movements in criminology, prison movements, and the science of criminology. He is especially perceptive in discussing the manner in which the state criminalized the opposition.

Chanock handles the complicated issue of how the South African state generated a common law from the raw materials of Roman, Dutch, English, and African law. His discussions are theoretically sophisticated and grounded in social reality. A feeling of social process in his writing moves the narrative along while enabling him to proceed with a detailed analysis. Chanock clearly demonstrates the significance of his theoretical understanding in discussing the manner in which white agreement on segregation and the legal discourse agreed upon to inform its use touched on land, marriage, labor, and every aspect of life in segregated South Africa.

The last chapter, "Reconstructing the state: legal formalism, democracy and a post-colonial rule of law," brings the discussion to the current period. Chanock jumps over the period after 1936 to the period after the end of apartheid. He finds, interestingly, that this post-apartheid period is closer to that of 1902 than to the period that immediately preceded it. It is a period filled with flux and possibility. Cultures, including legal ones, must reach an accommodation. Peoples must find a common ground on which to agree so that they may found a new state, one capable of doing their bidding. That this state now includes Africans as major players is an interesting difference, but the major cultural and structural principles seem to be there as they were in 1902. The possibilities to transcend the errors and oppression...