My research for Colonizing Consent opened up far more questions than I could reasonably answer in the space of one book. Like many academics, I’ve developed a long list of topics that I think could use a book-length treatment. I’m holding on to some of these for my own purposes. One—the intellectual history of customary law in turn-of-the-century South Africa—has become the focus of my current research. I hope to find time in the next few years for article-length treatments of several others. But I’ve found more interesting research subjects than I could plausibly get to over the rest of my career—some of which would require me to reinvent myself as a historian of British colonialism, rather than Africa—so I thought I’d take this opportunity to pitch a few of that might be relevant to readers of this blog.
1. Black Peril and White Supremacy in the Anglophone World, ca. 1865-1914
Colonizing Consent is mostly not about “black peril,” the term used in South African and other British settler colonies to refer to fears about the rape of white women black (or other “native.”) I wanted to write about women’s actual experiences of sexual violence, and the vast majority of rape in colonial South Africa was committed within racial groups, while black women were much more likely than white women to be victims of interracial rape. So while black peril panics certainly play a role in the story that I tell, they are not its primary focus.
In my research, however, I read through the major African-owned newspapers in the Eastern Cape, Imvo Zabantsundu and Izwi Labantu. I was struck by the close attention that these newspapers paid to the racial politics of not only other African settler colonies such as Kenya and Rhodesia but also the United States and, to a lesser degree, Australia and New Zealand. White newspapers, too, constantly looked abroad to these other settler territories as the logical comparison to South Africa. This was particularly true for discussions of interracial rape. In both black and white newspapers, lynchings in the American South provided the specter of what could happen in South Africa if the South African state did not deal adequately with the problem—although, unsurprisingly, black and white newspapers tended to propose quite different solutions. For someone interested in transnational histories of law and sexuality, there would be a rich payoff following up these conversations.
2. Custom in the British Legal Imagination
As Colonizing Consent notes in passing, British colonial administrators in the Cape Colony grappled with the proper relationship between law and custom only a short time after British legal reforms had drastically changed the place of custom as a category in metropolitan law. I am far from the first scholar to note this. Martin Chanock’s classic Law, Custom and Social Order contains an extended, and rich, discussion of the ways in which British administrators sought to read African law through analogy to the common law tradition. The mapping of geographical legal difference onto chronological ‘evolution’ was a staple of early comparative legal scholarship. Just yesterday, I was reading Dorothy Hodgson’s Gender, Justice, and the Problem of Culture, which notes a 1930s example of the direct invocation of British legal rules for determining custom in the effort to create “native courts” in Tanzania. But I haven’t found anything that fully connects the history of British legal reform on customary law to the development of ideas about “native law and custom” in the British Empire. This is a particularly important story in Sub-Saharan Africa where—unlike in South Asia or in Islamic North African colonies—British administrators understood custom not as secondary to religious law, but as the primary category through which indigenous law was conceptualized.
I’ll never write this book, because it would take me farther out of African history than I want to go. My current research, however, tackles some of the same questions from African perspectives. I’m interested in how black intellectuals in colonial and segregation-era think about the relationship between precolonial law, official customary law, and alternative ways of “modernizing” custom. I would love to read a book that traced British perspectives on these questions from the metropole into the African colonies—probably via British India, and perhaps other colonial territories.
3. White South African Lawyers before 1912
Famously, first fully qualified black South African lawyers returned home in the early twentieth century, where three of them—Alfred Mangena, Pixley ka Isaka Seme, and George Montsoia—promptly organized the first meetings of the organization that would become the African National Congress, the most significant black political organization of the 20th century and the governing party of South Africa since 1994. They were pioneers; but the legal profession they joined was shaped by the white lawyers who dominated it. In the court cases a read from the eastern Cape, a handful of black “law agents” represented African clients (I’ll write more about them in another post) but the vast majority of black litigants who had any legal representation worked with white lawyers.
The history of these white lawyers has been told, if at all, primarily by academics at South African law schools, who have narrated the professionalization of legal practitioners over the course of the nineteenth century and their role in the creation of the judicial structures of the four pre-union territories and, subsequently, the Union of South Africa. Much of this work is painstakingly researched and of excellent quality, but it is interested in very different questions from those which animate the rest of South African history. While recognizing that white lawyers were implicated in the creation of the structures of white supremacy, this legal scholarship does not generally engage with precisely how these white lawyers thought about race, and how the experience of legal practice shaped the racial knowledge of both lawyers and of the broader public. There is nothing, at least to my knowledge, that treats law and lawyers the way that Saul Dubow’s Commonwealth of Knowledge treats science and scientists. Gender is similarly present as subject, but largely absent as an analytical category, despited the robust critical legal studies scholarship on gender and law in South Africa since 1948.
Again, I’m not going to write this book, largely because I don’t have time; I’m following different threads from my first book, which lead me in a different direction. But I would love to see someone else pick these up.
If anyone reading this is interested in one of these topics - perhaps you were already working on them, and needed no prompting from me, or perhaps you know of work on these subjects that I haven’t come across - please feel free to get in touch! In all three cases, I have thoughts about sources that might be useful, and I’m generally eager to hear from anyone who is working on South African legal history, since there aren’t so many of us.
