Sunday, February 22, 2015

Looking back at the effects of anti-apartheid lawyering in South Africa

Constitutional Court Justice Edwin Cameron, in his perceptive and often moving book Justice: A Personal Account (2014), revisits the old question of whether using the law against apartheid did more harm than good. He firmly maintains that on balance this work, in which he himself played  an active part, was on balance well worth doing - and I agree. 

But along the way he makes a startling point (see page 59 of his book). He says that both the attackers and defenders of this work "were right." The attackers' point, he writes, was that "the legal system provided a cloak that legitimated apartheid - enabling it to be enforced for longer under a guise of respectability," and he agrees that "without the law, apartheid may not have been as efficient as it was for so long."

Cameron's observation is open-minded and interesting. The question of whether such a boomerang effect took place was important at the time, and remains worth considering now. Moreover, I think he is right that law was an efficient tool for the administration of apartheid. 

It doesn't necessarily follow, however, that without law apartheid would have ended sooner. It would surely have been more horrendous, as Cameron emphasizes, but whether its even more grotesque injustices would have led to its earlier demise is hard to say. In fact Cameron, while saying that those who attacked lawyers' work within the system had a point, doesn't actually endorse the proposition that apartheid without law would definitely have ended earlier; what he writes on this score is phrased more tentatively and speculatively.

Even if law facilitated and extended apartheid, moreover, it doesn't follow that anti-apartheid lawyering had that effect as well. That conclusion would have to rest on more attenuated logic. The first step would be the proposition that anti-apartheid lawyering lent legitimacy to apartheid (by enabling apartheid’s advocates to paint it as an institution with open courts honestly hearing even claims that challenged apartheid). I think it is quite possible that anti-apartheid lawyering lent some measure of legitimacy to the courts - but whether it either encouraged the defenders of apartheid as a whole or weakened the convictions of apartheid's challengers is quite another matter. And even if it did have such effects to some degree, there was a lot going on the later years of apartheid besides court cases. My guess is that the most potent sources of supporters' and attackers' convictions lay outside the courts, and that any boomerang effects of anti-apartheid lawyering were very modest.

Happily, this is one issue that history has made easier to resolve. It's clear that the years of the most intense anti-apartheid lawyering were also the years when that system, with or without some measure of legal legitimation, was skidding towards its welcome end. And that means we can instead rejoice in the commitment to the idea of meaningful law that the anti-apartheid lawyers helped create as one contribution to the new South Africa.

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