Like many legal historians, I spend a good chunk of my life reading court records—and it’s one my favorite parts of my job. I love it so much that I make my students do it too, even undergraduates! I regularly teach a seminar in which I give students a volume of records from a customary court from early twentieth-century South Africa. In the rest of this post, I’ll talk more about how I think about court records as a source. Tomorrow, I’ll describe in more detail how I guide students to work with them; and next week, I’ll come back to highlight some of my favorite archival finds that might be interesting to those researching or teaching legal history elsewhere in Africa, or even beyond the continent.
Reading through court records is a pretty good introduction to the process of writing African history in particular. Court records are an attractive source for historians of colonial Africa, even those with no particular interest in law. Many of us work on times and places where literacy was restricted to a relatively small group of people, and court records provide one of the few instances where the voices of ordinary Africans appear to have been preserved. In writing Colonizing Consent, I found this to be particularly true for the question of rape, a subject that the colonial state largely cared about when it crossed racial lines, and which most newspapers (including those isiXhosa) discussed through delicate euphemisms. By contrast, in court records, I found hundreds of isiXhosa-speaking men and women discussing not only their experiences of sexual violence but also their understanding of what kind of sex was wrong, and why.
Of course, as readers of this blog know, it’s more complicated than that. Even when court transcripts show litigants speaking in the first person, their testimony was profoundly shaped by the context in which it was produced. Some of these processes are nearly universal: people go to court to make things happen, so the statements they make in court can’t be read as a transparent representation of their opinions or experiences. Others are more specific to colonial courts. Court transcripts in the 19th century Eastern Cape were written in English, although litigants almost universally gave their testimony in isiXhosa. And the process of translation was cultural as well as linguistic. Most African litigants did not think about sexual violence either in the terms provided by colonial law; indeed, they did not necessarily know what court officials meant by those terms, which mapped poorly onto the isiXhosa words conventionally used to translate them.
So what do we do with court records, if we want to write histories that include, or even privilege, the perspectives of ordinary litigants? There is more than one answer to this question. We can crunch numbers to identify the most prevalent forms of dispute, or mine transcripts for stray pieces of evidence that illuminate the path that litigants took before reaching the courtroom. I did both in my own research. The disproportionate number of domestic servants accused of infanticide provided insights into the sexual exploitation that often accompanied such labor, while litigants who admitted taking their cases to local headmen before approaching the colonial court attuned me to the broader landscape of legal power in the Eastern Cape.
By far the most revealing court records I looked at, however, were those in which the process of translation failed in some way. Again, sometimes, the failure was literal—court clerks reverted to isiXhosa for a word or phrase, providing evidence of the incommensurability between local and colonial ways of understanding the world. More often, it was a matter of mismatched expectations. Especially in the early years of colonialism, African men and women sometimes made charges of sexual impropriety using categories that were wholly unintelligible to colonial officials. These cases pointed to the limits of forum-shopping as a model for explaining litigant behavior; more importantly, they revealed the kinds of claims that litigants thought they should be able to make. They gave me access not to “authentic” views or experiences of individual men and women, but to the set of social norms that litigants expected to be able to appeal to. Over time, they also showed isiXhosa-speaking men and women learning the language of colonial law, and using it to make their claims.