Jonathan Klaaren, University of the Witwatersrand, has posted Law under Apartheid, which is forthcoming in the unfortunately timely Oxford Handbook of Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:
Law under apartheid in South Africa between 1948 and 1986 may be understood as an instance of authoritarianism and specifically of autocratic legalism. Authoritarian regimes usually employ the tactics of autocratic legalism in the electoral field, using existing laws as well as creating new constitutional and statutory rules. In apartheid's first decade, the white National Party regime continued to adversely incorporate Africans and other blacks into subordinate legal orders and to exclude them from a common and equal citizenship. Law in a bureaucratic mode used to regulate civil registration and the mobility of urban residents was the locus of differentiation. With the declaration of the Republic of South Africa in 1961 and the commitment to apartheid Bantustans (homelands), the regime further eroded the rule of law, doubled down on racial discrimination, and regulated mobility through the construction of international borders internally and in Southern Africa. In the 1980s, law was used as a shield and a sword in both the maintenance of and the resistance to apartheid, providing some lessons for understanding law under authoritarianism.
--Dan Ernst
