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Meyerson, Denise --- "Book Review: The Making of South African Legal Culture 1902 - 1936: Fear, Favour and Prejudice" [2001] IndigLawB 74; (2001) 5(12) Indigenous Law Bulletin 22

Book Review:

The Making of South African Legal Culture 1902-1936:

Fear, Favour and Prejudice

by Martin Chanock
Cambridge University Press, 2001, p 587, RRP $90.00.

Reviewed by Denise Meyerson

In 1652 Roman-Dutch law arrived in the Cape along with the Dutch and was applied during the period of Dutch rule. Even after the British occupation Roman-Dutch law continued to be applied – although there were, of course, also English influences on the subsequent development of the common or non-statutory law of South Africa.

The Roman-Dutch roots of the South African legal system tend to dominate the standard approach to the history of South African law. Taking its start from Roman law, the standard account gives a comprehensive picture of the development of Roman law from its primitive beginnings in the Twelve Tables to Justinian’s codification in the sixth century. The story then turns to the reception of Roman law in mediaeval and Renaissance Europe and the coming into being of a Western European ‘common’ law or ius commune. This law was common in the sense that the countries of Western Europe had a shared law and legal science based on Roman principles.

Besides foregrounding the European roots of South African law in this way, the standard approach to South African legal history sidelines the nineteenth and twentieth century creation in South Africa of a body of local African private law based on the state’s understanding and interpretation of customary practices. The existence of this different set of rules for Africans, administered after 1927 by special courts, was justified by its supposed suitability to African needs and conditions. The standard texts in legal history make little, if any, mention of this ‘other’ legal system existing uneasily alongside the Roman-Dutch system and lacking the status of ‘real’ law.

Martin Chanock masterfully challenges this traditional picture which, as he says, ‘could know ancient Rome as itself but contemporary Africans only as others’.[1] He challenges the view that Roman-Dutch law was ‘a finished artefact, waiting to be found’,[2] arguing that in the nineteenth century it was ‘but a shadow little known to the few judges whose task it was to enforce it’.[3] Further, he claims that the subsequent triumphalist story of the victory of Roman-Dutch law over English law had more to do with the racist search for non-African roots and the nationalist desire to establish independence from English courts than the legal obligation to apply binding and authoritative texts.[4]

If the most important influence on the South African legal system was neither Roman law nor the Western European ius commune, what then was it? According to Chanock, it was the period of state-making which began in the volatile years after the South African War and ended with the white consensus on segregation in the 1930s. He claims that it was in the context of these local circumstances and conflicts that ‘all of the institutions, patterns and habits of South Africa’s law became established’.[5] In particular it was at this time that separate regimes of law were created for whites and blacks.

Breaking with the standard view in another way, Chanock also makes a place for African law in mainstream legal history, saying that Roman-Dutch law and African customary law cannot be properly understood except in relation to each other. He gives a sympathetic hearing to the idea, initially voiced by Z K Matthews in 1934,[6] that African law might be incorporated into South African common law.[7]

Nor does Chanock confine himself, in tracing the development of South African law, to the formalistic legal discourse of the lawyers and judges of the time. He rejects the view, again associated with traditional legal history, that judges and courts are at the centre of legal development and works instead with the broader notion of a ‘legal culture’, which he defines as ‘an interrelated set of discourses about law: some professional, some administrative, some political, some popular’.[8] Chanock is especially interested in the connection between the making of the white state and the bureaucratic way of looking at law – a way which does not conceive of the law as a check on state power but rather as a means of empowering officials to achieve their policy ambitions.[9]

All of these themes are meticulously spelt out and documented in a study which takes in the criminal justice system and criminology; commercial transactions; succession; delict (tort); the law of marriage and especially the problems created by the fact that many South African marriages during the period from 1902 to 1936 were polygamous; issues of status and capacity; labour law; land law; and administrative law.

In the final chapter of his book Chanock turns to the new era of state making which has recently begun in South Africa and points to the persistence of some of the dilemmas which characterised the first attempt. Perhaps one of the most interesting and complex of these is the conflict between the values served by a single legal system on the one hand and by legal pluralism on the other. Included here is the question of whether recognition of different systems of personal and family law based on different cultural and religious traditions is compatible with the value of equality which is so central to the 1996 Constitution.

Part of the question is whether the state should be blind to or sensitive to difference. The answer to this question is, of course, complicated by South Africa’s divided past and the Nationalist government’s deliberate exploitation of differences in language and culture as part of a divide-and-rule strategy. The need to promote national unity and the ideal of nation building is therefore now urgent. At one point in his book Chanock quotes E H Brookes who said in 1924:

Just as in discussing administration, we saw the advantage of a special administration and judiciary for Natives, so now we have seen the advantage of a permanently separate system of law. Practically and theoretically we can see the expediency and the justice of preserving, within the unity of humanity, the spiritual demarcation between race and race laid down by the Great Lawgiver Himself.[10]

Those who oppose the politics of difference and the idea of separate rights for different groups in contemporary South Africa do so because they see no clear way to distinguish these ideas from the segregationist views of people like Brookes.

The recognition of different systems of personal and family law is also troubling in as much as the post-apartheid state is being asked to accommodate systems of law which subordinate women in very fundamental ways. To give just two examples: under customary law women are regarded as minors and subject to the guardianship of their husbands and in terms of Islamic law women inherit only half of what their male counterparts inherit. Chanock therefore rightly says that ‘[t]he assertions of gender equality, and of a greater sensitivity towards cultural rights, and a growing confidence in an African-defined customary law, may not fit easily together’.[11]

It is difficult to do justice to the sweep and interest of this book in a short review. It is a major contribution to South African legal historiography and is bound to influence future debates within the discipline. Anyone with an interest in the subject will certainly want to read it.

Denise Meyerson is a senior lecturer in the Department of Law at Macquarie University.


[1] Martin Chanock, The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2001) 244.

[2] Ibid 167.

[3] Ibid 157.

[4] Ibid 166-8.

[5] Ibid 27.

[6] Z K Matthews, Bantu Law and Western Civilisation in South Africa (Dissertation, Yale University, 1934).

[7] Chanock above n 1, 356-7 and 528.

[8] Ibid 23.

[9] Ibid 428.

[10] Ibid 345.

[11] Ibid 532.


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