Thursday, December 30, 2010

Post-apartheid South Africa and the post-Civil War United States

Perhaps the founding moment in US history that's most analogous to South Africa today is not the Revolution and the writing of the Constitution but the Civil War and its aftermath. The writing of the constitution was about constructing a nation, and that was certainly part of what South Africa undertook after the end of apartheid. But it was the Civil War, and the Reconstruction amendments ending slavery and barring racial discrimination, that marked the United States' effort to cleanse itself of injustice -- and that's the central theme of South Africa's transition.

What's troubling about this analogy is that the course of post-Civil War politics in the US did not run smooth. There were real efforts to remake the South, but they ran aground, and meanwhile Washington became the scene of remarkable levels of corruption (as my son Brian reminds me), perhaps partly because the spoils had grown more abundant as the war expanded the role of government, and partly because a new party and new people now had access to the treats Washington offered. My impression is that the Republican Party -- the noble party of Lincoln -- swiftly devolved to emptily "waving the bloody flag" of the Union's Civil War cause. It's possible to see South Africa today as all too similar, with grasping, mercenary politicians wrapping themselves in the slogans of liberation as they pursue their own interests. Perhaps this is one characteristic form of the decline of ideals as they become absorbed in the overwhelming practical business of ordinary politics.

But if that is so, the implications aren't all bad. The end of Civil War idealism in the United States was a deep loss, above all for the cause of racial justice which faded from view for many decades. But this was not the end of politics, or of struggle against injustice. Pride goeth before a fall, and the arrogant wealth of the Gilded Age in the late 19th Century surely contributed to the rise of unions and of modern liberalism in the United States (among other developments), and over a long sweep of time the "arc of justice" for African-Americans became prominent again as well. Perhaps South African politics too will reshape itself into new, and vibrant, movements against the inequalities left from the past and still being generated in the present. Then, happily, it will be clear that the problems of today's South Africa are not signs of looming disaster but part of the often disappointing, yet still profoundly valuable, play of democratic politics.

Sunday, December 26, 2010

Jonny Steinberg's "The Number" and the meaning of a constitution of no slogans

Jonny Steinberg's remarkable book The Number illustrates -- in virtuoso style -- the kind of sensibility that that a constitution of no slogans would rest on. His story of Magadien Wentzel, a senior member of the prison gang known as the 28s, confounds almost any expectation.

Oppression causes crime, it's often said, and rightly; but as Steinberg rightly observes, crime is a particularly conservative response to oppression. Criminals leach off of any order, and so they are not necessarily friends of the other victims of the order from which they steal. But the prison gangs had politics, anti-apartheid politics, and their hopes that their own liberation would follow from South Africa's were bitterly disappointed. All this is a useful reminder that "the oppressed" are far from a uniform mass, and that in fact among the oppressed are both victims and oppressors -- and that these two categories may often overlap, as poor people turn to crime against other poor people as their path to some degree of power and wealth.

What is more startling, however, is to learn that the Number -- actually three separate groups, the 26s, 27s and 28s -- had existed as long as South Africa had been a nation, and that their existence rested on ritual and mythology, all generated, it seems, in or near prison. Leaders of the Number had uniforms, weapons and a sacred text written on the hide of a bull -- but all of these implements existed only in their minds. They also had memories, or fantasies, of a golden age of the Number, some decades back from the tarnished present. In short, these oppressed men, who were vigorously engaged in oppressing other prisoners and carrying on a choreographed, violent-but-usually-not-lethal interaction with the guards, were also engaged in social ordering and myth-making. They were dangerous criminals, and creators of a society. And their odd form of order was itself threatened, not so much by the warders or by the end of apartheid as by the rise of drug gangs on the outside that for strategic reasons of their own appropriated the symbolism shaped by the Number.

What could a just society possibly do about the Number? What, especially, could such a society do if it was -- as South Africa was -- terrified by an explosion of crime? It is hard to see the legal framework big enough to speak meaningfully to this world.

But in fact the book is not just about the capacity of a gang society to evolve and persist, like antimatter in a universe of matter. For it is also, and above all, the story of the incompleteness of that gang society, and the life of Magadien Wentzel, who became a leader of the Number and then left it because he wanted to have a life that had meaning. That turned out to be almost as intractable a challenge for him as dealing with the Number might be for South Africa: filled with dreams of helping steer others away from crime, he found himself without money and without employment, living in isolation and dependent on the generous of people whose generosity faded.

And yet he did not, at least in the time that Steinberg's book covers, succumb. This one man, in fact, seems to have found a break -- because in the end Steinberg could not bring himself to profit from Wentzel's story while Wentzel himself was trapped in poverty, and so he signed over 10 % of the book's royalties to Wentzel himself. The book won a prize, and readers, and I hope that means that Wentzel himself has found opportunities -- and not been undercut by them. It is moving to read Wentzel's own Afterword, with which the book ends, and its last words, "May God be the judge of this book." Perhaps every book seeks the moral seriousness that would deserve a standard so profound, but certainly few books end with quite this striking a call for commitment.

And a constitution of no slogans? The judges and lawyers shaping a constitutional order of this sort would resist easy generalizations (from "poverty causes crime" to "criminals are irretrievable"). They would recognize the complexity of even a single life. They would not be blithely idealistic, but they would not give up on hope either. And they would recognize that they themselves are, inescapably, part of the story that they study and tell.

Saturday, December 25, 2010

A constitution of no slogans

A thought on Christmas Day:

Life is more complex than we might have expected. Human beings turn out not to share a uniform genetic heritage -- some of us are the product of interbreeding with Neanderthals, others (according to this week's news reports) of interbreeding with a hitherto unknown offshoot of humanity called the Denisovans. Human beings are also notoriously plastic -- our children are born knowing almost nothing, and take 20 years to achieve adult knowledge, while simpler creatures are fully equipped for their lives much more quickly, but the result is that we can adapt to far more varied and challenging circumstances than we could if we were born set in our ways. Even in adulthood we are constantly shaping the people we ourselves will become, and so we can become many things. William James said something to the effect that we should choose those beliefs that best serve our interests, and -- though the process is surely not so willful or simple as that -- we do have some ability (sometimes too ready an ability) to follow his advice.

All of which says that the sphere of fixed certainties is pretty modest. That doesn't leave us rudderless, but it suggests the need for a certain measure of restraint as we encounter the complex realities of how lives work. Just to pick up where my last post left off: how does customary law work? What are the currently governing rules of customary law? What are people's actual customs? These are questions with no simple answers, and there are likely many more such difficult questions, in the United States as in South Africa. The beginning of wisdom, I think, is to acknowledge how much we don't know, and how much may indeed never be settled, and to try to listen as hard as possible to people so that we can understand their actual needs and desires and principles as well as we can. I know that there is no listening without framework, but there are more and less open frameworks, and we need to try to be as open as we can. In that sense, though we need a constitution that protects against the real dangers of oppression and needless suffering that are part of life in society, we also need a constitution of no slogans.

Sunday, December 19, 2010

On figuring out what customary law is, especially when it's changing

(With apologies for two months of non-blogging!)

Back from a conference in Cape Town honoring Martin Chanock for his distinguished work on South African legal history, customary law and legal education, I'm realizing that the task of making customary law part of a Western-style legal system -- as South Africa's constitution envisions -- is truly complex.

If customary law were written down, of course, it would be easy to apply it in the same courts that apply common law principles, statutes, and constitutional requirements every day. But if customary law is written down, it risks becoming detached from actual custom -- as indeed happened, notoriously, as whites created a body of customary law adjudication and legislation in the 19th and 20th centuries.

So, too, if customary law were definitively pronounced by a particular person, such as the chief, or by a particular body, such as a council of elders, then its contents would be readily determinable. But if customary law truly is the law created by custom, then it is entirely possible that even if custom at one time conferred such law-pronouncing power on the chief or the council, the custom has now shifted -- and because of that shift, the chief or the council no longer actually have customary sanction for declaring what customary law is.

Or another variation: Suppose that the chief, for instance, is still empowered by custom to make rulings about the content of customary law. But custom also makes clear that the chief's task in this process is not to make the law he (or she) prefers, but to discern the law that has evolved from the customs of the community. How should the chief go about doing this? At this point the chief is in something of the same position as the Western-style judge, though the chief has the substantial advantage of actually being closely familiar with the customs of the community (and the potential disadvantage of having his/her own personal or political interests quite directly at stake): for each of them, the problem is that the customs in question may be unclear or may be in the process of changing.

If a community at one time held a custom of, say, male primogeniture in inheritance, how would someone -- its chief, or a judge of the South African High Court -- tell whether that custom still held, and still had the force of law? If most of the community no longer adhered to the custom, would it no longer have the force of law? Perhaps the answer is obviously yes (that it would no longer be law), but what if most members of the community still declared the point to be a customary rule, and tried to cover up the moments when they themselves departed from the rule? Or what if most members of the community said they weren't sure if the custom was still part of their law, while the rest of the community asserted that it definitely was? Or what if current members of the community were divided in their views, but the chief, or the judge, was convinced that one view fitted much better with the accumulated history of the group than the other view did?

I imagine there are many variations on these questions, variations that are actually arising in real South African communities, and perhaps in many other nations where customary law remains important. (There may well be analogous questions in connection with the customary law of nations -- but I won't try to pursue that issue here.) There don't seem to be any obvious solutions, least of all for judges who aren't very familiar with the customs whose actual content and legal force they are attempting to grasp. It would be convenient if the problems could simply be handed over to traditional leaders such as chiefs, but that solution is logically a circular one if the extent of the traditional leaders' authority is itself one of the controverted issues of customary law. It's also problematic to the extent that chiefs' power, even if uncontroverted in terms of tradition, is subject to constitutional challenge for its inconsistency with constitutional liberties now guaranteed to South Africans in every context of their lives.

Perhaps the best that can be said is that a society committed to honoring customary law must begin by paying very close attention to it, and to the various views of it that different members of customary communities express. A good deal of South African law constitutional law now seems to be aimed at generating that kind of close attention to the actual views of actual, previously unheard, people -- and that effort is exactly on target.