Klaaren on Law under Apartheid

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

Essays on Fascist, Nazi and Authoritarian Criminal Law

Ideology and Criminal Law: Fascist, National Socialist and Authoritarian Regimes, edited by Stephen Skinner and published by Hart, is now available:

With populist, nationalist and repressive governments on the rise around the world, questioning the impact of politics on the nature and role of law and the state is a pressing concern. If we are to understand the effects of extreme ideologies on the state's legal dimensions and powers – especially the power to punish and to determine the boundaries of permissible conduct through criminal law – it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection's 16 chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity, self-perception and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law.

–Dan Ernst

Motha on sovereignty and violence

Stewart Motha (Birkbeck College, University of London) published Archiving Sovereignty: Law, History, Violence with the University of Michigan Press in 2018. From the publisher:

Archiving Sovereignty shows how courts use fiction in their treatment of sovereign violence. Law’s complicity with imperial and neocolonial practices occurs when courts inscribe and repeat the fabulous tales that provide an alibi for archaic sovereign acts that persist in the present. The United Kingdom’s depopulation of islands in the Indian Ocean to serve the United States’ neoimperial interests, Australia’s exile and abandonment of refugees on remote islands, the failure to acknowledge genocidal acts or colonial dispossession, and the memorial work of the South African Constitution after apartheid are all sustained by historical fictions. This history-work of law constitutes an archive where sovereign violence is mediated, dissimulated, and sustained. Stewart Motha extends the concept of the “archive,” as site of origin and source of authority, to signifying what law does in preserving and disavowing the past at the same time. 

Sovereignty is often cast as a limit-concept, constituent force, determining the boundary of law. Archiving Sovereignty reverses this to explain how judicial pronouncements inscribe and sustain extravagant claims to exceptionality and sovereign solitude. This wide-ranging, critical work distinguishes between myths that sustain neocolonial orders and fictions that generate new forms of political and ethical life.

 Praise for the book:

“Set in and around the Indian Ocean, Archiving Sovereignty is a thoughtful meditation on how the law traffics in fictions—the ‘as if’—as it adjudicates state sovereignty in contexts of colonial and postcolonial violence. Elegantly written, it invites an important consideration of the law’s complex work as historical archivist.” - Avery F. Gordon

“Stewart Motha re-envisions the Indian Ocean as a material site of law, violence, and dispossession that he compellingly terms an ‘archive of the present.’ Drawing comparatively from Australia, South Africa, and the Chagos Archipelago, Motha offers a beautifully crafted analysis of law and sovereignty, how they draw from and disavow their entangled colonial histories.” - Renisa Mawani

“Of the many interwoven themes in Archiving Sovereignty, the driving motif for me is Kant’s ‘as if,’ which responds to the disappearance of metaphysical objectivity. If objects are the only knowable facts, the unknowable is suspended in the ‘as if.’ This is true for a lie (such as acting as if law were grounded in nature or acting as if sovereignty were a power in itself) as well as for a fertile fiction. We must then think of the ‘as if’ in its relation to an absence of first law, and think of sovereignty as the ‘as if’ of a postulation of ‘nothing’ at the centre of existence. Stewart Motha explores this double dimension, its commingling and unravelling, its aporias and suggestions that are of course inexhaustible. This research is at the heart of the concerns and expectations of the present time.” - Jean-Luc Nancy

“Through a series of brilliant readings of contemporary cases of exile and exclusion the source of legality, the archive, is exposed as an unstable archipelago and excoriated as the fictive mark of sovereign solitude.” - Peter Goodrich

Further information is available here.