Reviewed by Stacia L. Haynie, Department of Political Science, Louisiana State University. Email: pohayn [at] lsu.edu.
In THE LEGACIES OF LAW: LONG-RUN CONSEQUENCES OF LEGAL DEVELOPMENT IN SOUTH AFRICA, 1652-2000, Jens Meierhenrich suggests that the effect of established, professionalized legal systems, even those within authoritarian regimes, can have positive effects on subsequent democratic transitions. By providing a common reference to respect for laws – as opposed to the rule of law – the legal system of the prior regime can temper the transition from oppression and repression to democracy.
Meierhenrich uses the South African experience as the laboratory to both develop and test his assertion. Broadening Weber’s ideal types (formal, substantive, rational and irrational – and the relevant combinations thereof), the author suggests that laws can be legal (i.e. Weber’s ideal formally rational) but not legitimate. For Meierhenrich, this distinction becomes critical when societies, such as South Africa, face democratization. The transitioning authority competes for power, wealth, and security while confronting a number of strategic dilemmas including lack of information concerning principal goals, preferences and strategies among the parties at conflict, commitment problems, and the exacerbation of insecurity. This increasingly contentious process leads to “the uncertainty predicament – and the concomitant bargaining predicament” facing the transitioning power and the incoming one.
Meirenrhenrich then shifts to the exploration of the “path dependence” of the law. Based on Ernst Fraenkel’s (1941) “rarely mentioned” (p.43) book on dictatorship, Meierhenrich grounds his theoretical approach in Fraenkel’s concept of the dual state, i.e. the prerogative state and the normative state. Fraenkel, influenced by his own experience in Nazi Germany, argues that in the prerogative state the government rules by arbitrary decree and violence with no respect for formal justice (p.64). In contrast, the normative state is governed by law focusing on procedure and protection. That is, rules are “legal when they display functional competence based on reason” (p.24). Legitimate law, on the other hand, “is a synthesis of morality and legality embodied in the law” (p.24). Meierhenrich “advances a procedural theory of law” (p.24) in that the substance of the law matters much less than how decisions and decision-making authority are allocated in society. Such duality (when laws are legal but not legitimate) predisposes the ultimate outcome for regimes but does not ensure a path dependent trajectory for the politics that flow from the structural [*606] conditions of either democratic or dictatorial systems. As he argues, the “law’s common knowledge produces, under certain circumstances, behavioral regularities that can vastly reduce the uncertainty predicament in democratization” (p.48). Ultimately, formally rational law produces both “behavioral” and “hermeneutic” effects that emerge in the “interplay between legal structures . . . and social preferences” as societies democratize (p.50). Legal structures then serve to shape the fundamentals of the “constitution of the law” – institutions, interests, and ideologies. Using the “duality of the law” societies, even authoritarian ones, may develop a culture of law leading to common expectations, thus providing some certainty despite the fact that all laws are malleable.
The complex theoretical arguments presented in the book are not easily condensed to a few paragraphs, but ultimately, Meierhenrich argues that apartheid law was adopted within a constitutional framework and applied within a legal culture that recognized the rules and functioned “legally” within that context. That foundation allowed for a smoother transition to democracy. Because the population at large maintained respect for the rules, the focus then becomes on the rules themselves (majority rule, minority rights), rather than the process by which those rules will be enforced.
The second section of the book provides an historical overview of the apartheid state that divides his analysis into the evolution of the normative state which Meierhenrich suggests was undergirded by exposure to “progressive, liberal ideologies imported from Great Britain” (p.90) and by the importation of capitalism from the British and Dutch colonists. The prerogative state, of course, emerges as racism dominates the politics of South Africa culminating in the victory of the National Party (NP) in 1948 with its institutionalization of segregation in every facet of South African life. Meierhenrich extends his analysis of the prerogative state to include the extra-legal violence and repression embedded in the apartheid state as well as the use of the law by the opposition to provide some protection of rights and liberties – the ultimate irony of the dual state. South Africa’s “rule-guided” tradition was grounded both in its religious and legal traditions and “embraced” for three reasons according to Meierhenrich:
- law demonstrated its utility by serving as an effective method of control;
- law promised to better the apartheid government’s standing in the internal community by providing a modicum of legitimacy; and
- law embodied a sincere belief in its appropriateness.
Meierhenrich’s analysis of the unraveling of the apartheid state spends significant attention on the “endgame” and the processes by which the new democratic order was constructed. Specifically, Meierhenrich focuses on the electoral design selected (proportional representation) and the miscalculations by both the NP and the Inkatha Freedom Party (IFP) regarding its potential advantages for them. Despite such miscalculations, he argues, the moderation of preferences in determining who governs – i.e. groups [*607] select cooperation over confrontation – is a fundamental objective of democracy. He further asserts that the “usable state” – the remains of the old regime – were necessary for the “convergence on secondary institutions,” such as a constitution that encompasses the governing structure. Further negotiations leading to adoption of a bill of rights and the adaptation of the prior judicial structure were “fought on the foundation of an elaborate legal tradition” (p.218). Indeed, as Meierhenrich notes, black South Africans had surprisingly high levels of confidence in the apartheid legal system – 50% of black South Africans had “quite a lot” (26%) or a “great deal” (24%) of confidence in the legal system in 1981. A remarkable 62% had a “great deal” (27%) or “quite a lot” (35%) of confidence in the legal system in 1990. Such confidence played a critical role in the transition to democracy according to the author.
Another critical aspect of the successful transition to democracy, argues Meierhenrich, was the establishment of the Truth and Reconciliation Commission (TRC). The extra-legal nature and the immorality of the apartheid system was fully exposed in the proceedings of the TRC, but Meierhenrich notes that the TRC “became a reinforcing bridge in the transition from the rule by law to the rule of law” (p.266). The TRC was “the missing link between legality and legitimacy – a link that helped turn law legitimate” (p.267).
Meierhenrich’s final chapter is intended to serve as a “plausibility probe” for his theoretical model. Connecting all the disparate dots within the theoretical model offered by Meierhenrich is not an easy task, and verifying its plausibility in a terse examination of the “redemocratization” of Chile is less than compelling confirmation. Nonetheless, he provides an examination of its dual state and its endgame and finds that here, too, the “legacies of the law” facilitated democratic development in that state (pp.295-313).
Meierhenrich’s work provides an impressive synthesis of scholarly research on authoritarian transitions generally and dismantling of apartheid in particular. While the disparate threads of the argument are more tightly woven in some parts than others, overall, the work provides a strong historical and legal framework within which to understand how fundamentally illegitimate systems can function and ultimately even further the democratic process. It may be, however, that Meierhenrich’s evaluation of the South African transition is a bit too optimistic. Recent developments in South Africa suggest that the path to a legitimate legal system may be taking some less than desirable, if not fundamentally destructive, turns. Meierhenrich’s argument in part is grounded in the respect that not only black South Africans had for the rules of the law and the boundaries the laws imposed, but the respect that government officials had as well. Machinations over the past year suggest that the latter has been seriously eroded. Beginning with the resignation of Thabo Mbeki and culminating in the recent manipulations of the composition of the Judicial Services Commission (JSC), one would be naïve to argue that the independence of the judiciary is not under threat. Jacob Zuma’s ascendency to the presidency was enabled in large [*608] part by the decision of the prosecuting authority not to pursue corruption charges against him stemming from his alleged involvement in a 1999 arms procurement deal. Those of us who study judicial politics are not surprised by its persistent evidence in the legal system, but its visibility on the national stage brings a notoriety lacking in the apartheid regime. The subsequent decision by the South African prosecuting authority to abandon the case leaves it largely moot. In the mean time, justices of the South African Constitutional Court have submitted allegations of misconduct to the JSC that a Cape High Court Judge President, John Hlophe, had improperly attempted to influence the court’s decision in the Zuma case. Further complicating the matter, Judge Hlophe has filed suit charging that the Constitutional Court’s decision to make their allegations public through a press statement constituted a violation of his rights to equality and dignity, a charge he won in the trial court but lost on appeal. He has since appealed the reversal to – you guessed it – the Constitutional Court, and is now calling for the recusal of 10 of the 11 members who were party to the allegations of misconduct. As if that were not sufficiently convoluted politically, President Zuma has altered the composition of the JSC allegedly with some Hlophe supporters. If all that were not complicated enough, Zuma has made a shortlist of nominees for the JSC to consider for membership on the Constitutional Court.
While the Mbeki-Zuma-Hlope saga could simply be a tale of politics not more or less intriguing than many of our own Supreme Court nomination processes (Clarence Thomas’s chief among them), what is even more troubling are the structural changes being proposed by the Zuma regime. Particularly disconcerting to many is the call for material aspects of the administration of the judiciary to be vested in the executive branch, something many consider a fundamental attempt to undermine the independence of the judiciary and the rule of law. While the current sub-plot may simply be a few pages in the longer novel of South African politics, many fear it is something far more sinister. Whether Meierhenrich’s legacies of apartheid law provide the foundations he suggests remains to be seen. I hope for South Africa and its people he’s right.
Fraenkel, Ernst. 1941. THE DUAL STATE: A CONTRIBUTION TO THE THEORY OF DICTATORSHIP. New York: Oxford University Press.
Weber, Max.  1972. WIRTSCHAFT UND GESELLSCHAFT: GRUNDRISS DER VERSTEHENDEN SOZIOLGIE, 5th ed. (Tübingen: J. C. B. Mohr).
© Copyright 2009 by the author, Stacia L. Haynie.