The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice

The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice

Martin Chanock

Language: English

Pages: 588

ISBN: 0521791561

Format: PDF / Kindle (mobi) / ePub

Martin Chanock's definitive perspective on the development of South Africa's legal system in the early twentieth century examines all areas of the law: criminal law and criminology; the Roman-Dutch law; the State's African law; Land, Labour and "Rule of Law" questions. His revisionist analysis of the South African legal culture illustrates the larger processes of legal colonization, while the consideration of the interaction between imported doctrine and legislative models with local contexts and approaches also provides a basis for understanding the refashioning of law under circumstances of postcolonialism and globalization.

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prisons were run was well described later by Justice Krause. He concluded that `the whole conception and 100 Law and order manner of carrying out the sentences imposed breathes a spirit of brutality and savagery' and that `physical pain and degradation' was the purpose and policy of the prisons, especially as far as the treatment of black prisoners was concerned (Krause 1939: 114, 116). The report of the Penal and Prison Reform Commission of 1947 put the matter well (UG 47 1947: 92). The 1911

simply accepted the guilty pleas of the (usually illiterate and rarely represented) accused (e.g. Simons 1936: 470). One of the most signi®cant features of the legal history of this period is the shift of the bulk of cases down the judicial ladder. In 1917 the jurisdiction of the magistrates' courts was greatly extended (by sections 86 and 87 of the Criminal Procedure Act). The 1917 Act was based on the imperial model Transvaal law of 1903. There were additional features: it introduced majority

down on `¯agrant instances where the limits of free speech have been grossly exceeded in the speeches of . . . labour orators' was not successful (Hancock and van der Poel 1962, vol III: 111; Smuts±Merriman 5/9/13). Merriman focused on what was at stake: `We may laugh at the ravings of the syndicalists, but the dangerous thing is that they are appealing . . . both to the poorer Dutch and to the Natives . . . Do recollect that the maintenance of law and order is the great question before the

middle of the eighteenth century `contract was advancing as one of the great organising categories of liberal thought' (1989: 200). Along with property it was far more than a legal doctrine, carrying the weight of the justi®cation of inequality and crucial to the conceptualising of the fair yet unequal society. The values which contract embodied `buttressed freedom of dealing and sanctity of bargain, the economic superiority of market place pricing over government regulation, the moral

frontier Industrial conciliation law The colour bar Wage regulation Women's wages Industrial legislation in practice 437 437 444 446 460 462 18 A rule of law Administrative law Asian traders: joining the discourses Reading the law: statutory interpretation 470 472 487 497 Part VI Consideration 19 Reconstructing the state: legal formalism, democracy and a post-colonial rule of law Legal culture: political con¯ict and the development of formalism Judges Legal culture 2 Race Legal culture 3

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