Tuesday, February 5, 2019

African History as Legal History

Many thanks to the editors for inviting me to post here this month, although I’ll confess to feeling like something of an interloper.   Indeed, exploring that feeling struck me as a useful starting point for my thoughts this month.  African history has a peripheral place within the broader field of legal history, and vice versa.  That’s probably not going to change significantly in the near future; but I’d like to make a pitch for legal historians in other times and places to read a bit more in African legal history, and I’ve put together some recommended readings to start with. 

I didn’t start thinking myself as a legal historian until several years after I’d finished my PhD.  I wrote my dissertation, which became my first book, on the history of rape in colonial South Africa; but the questions that I was interested in were less about law than about culture and politics.  I wanted to understand how people thought about sexual violence and sexual consent, and how their ideas changed during the intensely violent process of colonization.  In my initial research, law appeared as a methodological riddle.  By far the largest body of archival material dealing with sexual violence came in the form of court cases: criminal prosecutions for rape and violations of anti-miscegenation laws, divorce hearings, and civil litigation over seduction and adultery.   I sifted through thousands of court records with the goal of reading around and beyond the formulaic phrases of the colonial courtroom, with the hope of deciphering how people talked about sexual violence when they weren’t adjusting their narratives to the expectations of these various legal venues.

I succeeded, in part. My research left me skeptical of overly determinative accounts of forum-shopping.  At least in the 19th century Cape Colony, plenty of litigants turned up in court with little knowledge of how to shape their testimony to the court’s expectations, even if they wanted to.  But I couldn’t figure that out without understanding the courts themselves.  At the most basic level, I needed to understand who had power, and how they used it.  I needed to understand how cases travelled through the court system, from the court clerk to the magistrate to the Solicitor General to the jury.  I needed to know how the words of Xhosa-speaking litigants were transformed into English-language transcripts.  And I needed to know how all the actors in this system thought about rape as a legal category.  

In order to make sense of my archival records, in other words, I needed to become a legal historian of sorts.  It was a more challenging process than I anticipated.  There is a rich body of scholarship on the history of the colonial Eastern Cape, much of which draws heavily on court records, but very little that lays out the basic functioning of the colonial court system.  Meanwhile, the official statements of the colonial regime were usually aspirational at best.  Indigenous African law had no official legal status in most of the Cape Colony, but an approximation was nonetheless widely applied in civil cases, many of which literally bore the notation “informal case” across the top of the archival record.  Meanwhile, few 19th century magistrates had formal legal training, or even access to standard legal texts, so the form of law applied in lower courts on the colony’s periphery was often quite different from that described by judges and prominent advocates in Cape Town.  

As I worked through these questions, I came to see courts themselves as sites for the dissemination of legal knowledge.  I could see African defendants learning how colonial officials thought about rape, and I could see colonial officials developing new understandings of African “customary law.” I also came to appreciate the political stakes of law itself, as I read black intellectuals vigorously debating the place of customary law in the emerging segregationist state.  As I finished my first book, law moved squarely to the center of my research.  My current book project has “law” not only in the title, but before the colon (Imagining African Law: Black Intellectuals and the Politics of Custom in South Africa), and I’m currently the lone Africanist among a group of fellows at the Shelby Cullom Davis Center working on the theme of “Law and Legalities.”

Yet, despite this trajectory, I still feel like an outsider to legal history in many ways.  My time at the Davis Center has been tremendously intellectually productive, precisely because there is still so much I don’t know about the field (luckily, there are very smart people around to explain these things to me).  I would guess that most of my colleagues working on law and African history, a small but vibrant field, feel the same way. 

There are both institutional and intellectual reasons for this. In comparison to scholars of American, European, or Latin American legal history, relatively few of us have legal training, and even fewer teach at law schools. Meanwhile, historians of African law have focused disproportionately on the history of “customary law,” a protean term that glosses a variety of bodies of law which claim some connection with precolonial African law.  This preoccupation has brought us in conversation with a wide-ranging scholarship on legal pluralism, but has simultaneously cut us off from many of the other major questions in legal history.  There is shockingly little historical scholarship on the process of writing African constitutions and the development of postcolonial legal regimes, for example, despite the recent turn in the broader field to postcolonial history.  There is also less work than you might expect that treats law as part of African intellectual history.

Precisely because this divide is so entrenched, however, I see big intellectual dividends in reading across it.  In recent years, my own thinking has been shaped by reading Bianca Premo and Tamar Herzog on law in Latin American empires, Kunal Parker on the common law in America, and Matthew Sommer on alternative marriage practices in late imperial China.  I’d like to think that those working in other fields would benefit equally from reading scholarship on law in African history—and as evidence for this claim, I’d point to Dylan Penningroth’s The Claims of Kinfolk  and Ann Marie Plane’s Colonial Intimacies, two books about American history that draw substantially on Africanist scholarship on customary law.

So, to close this post, here are some of my favorite books in African legal history.  The list skews towards my own interests in gender, sexuality, and empire, although I’ve tried not to be too parochial. Happy reading!

1. Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia.  The foundational book in the history of colonial-era customary law.  Dense, but worth it!

2. Sara Berry, No Condition is Permanent: The Social Dynamics of Agrarian Change in Sub-Saharan Africa.  Not legal history strictly speaking, but all the more interesting because of it; Berry examines customary courts as part of a broad set of struggles over property and rural wealth. 

3. Thembeka Ngcukaitobi, The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa.  Written for a popular audience by one of South Africa’s pre-eminent human rights lawyers, an exemplar of the recent interest in law as intellectual history and an argument for the importance of legal history to contemporary South African politics.

4. Emily Burrill, States of Marriage: Gender, Justice and Rights in Colonial Mali.  Exemplary in bridging different spheres of law through an analysis of marriage and a succession of attempts to reform marriage law.

5. Mahmoud Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism.  The classic book on the politics of indirect rule, and a forceful argument about the role of customary law in that process.  

6. Kristin Mann and Richard Roberts, Law in Colonial Africa.  An edited collection that provides a useful starting entrée into this corner of the field. 

7. Ghislaine Lydon, On Trans-Saharan Trails: Islamic Law, Trade Networks, and Cross-Cultural Exchange in Nineteenth-Century Western Africa.   An argument for the role of Islamic law and associated practices in creating and sustaining the trans-Saharan caravan trade.

8. George Karekwaivanane, The Struggle Over State Power in Zimbabwe: Law and Politics Since 1950.  Thinks through the role of law as a category and practice in a time and place where the “rule of law” was often recognized in the breach.

9. Harri Englund, Prisoners of Freedom: Human Rights and the African Poor.  This one is cheating—Englund is an anthropologist, but one that I think historians should read, particularly if we want to understand the complicated place of law in the international human rights project. 

This is obviously not a comprehensive list, but I hope it provides a useful starting point.  I’ll be back later this month to talk about institutional efforts to bridge the fields of African history and legal history.