Reviewed by Jonathan Klaaren, Department of Sociology, Yale University and Faculty of Law, University of the Witwatersrand.
As this review is written in May 1996, the South African Truth and Reconciliation Commission is concluding a series of hearings, held in East London, Cape Town, Johannesburg, and Durban, designed to give the victims of apartheid of all political persuasions a chance to tell their stories. From these stories -- and others unearthed through further hearings, archival research, and in the field investigation as well as the stories of the perpetrators -- the Commission will attempt to fulfill its mandate of national reconciliation through discovering the truth of the events between 1960 and 1993. Many South Africans seem to be placing great faith (or at least great hope) in the Commission's ability to discover what really happened in this time period. Indeed, the discovery of the truth is the explicit quid pro quo for amnesty; within certain limits of proportionality, the perpetrators may trade their stories for immunity from criminal prosecution and civil liability.
In one sense, Richard Abel's book, POLITICS BY OTHER MEANS, LAW IN THE STRUGGLE AGAINST APARTHEID, 1980-1994, engages in a story-telling enterprise similar to that of the Truth Commission. Abel employs a largely descriptive method, presenting detailed histories of "ten pivotal legal campaigns during the last years of apartheid." (3). These ten campaigns cover a wide scope of anti-apartheid action. Abel begins in Chapter 3 with the 1980s victories of the Legal Resources Centre, a public interest legal organization, against the pass laws that restricted the rights of blacks to reside in urban areas. Another campaign featured both the collective resistance of the End Conscription Campaign and the individual trials of several white conscientious objectors to military service in the South African Defence Force (Chapter 4). Abel also covers similar high-profile legal events such as the Alexandra treason trial (Chapter 9), the three month closing of a leading anti-apartheid newspaper (Chapter 8), and the granting of an interdict restraining the police in Port Elizabeth from torturing emergency detainees (Chapter 7). Perhaps fittingly, a key figure in this last event who exposed the prevalence of official torture, Wendy Orr, sits presently as a member of the Truth Commission.
Other chapters treat legal campaigns revolving around issues of labor and land. South Africa's longest-running labor dispute saw the union, Metal and Allied Workers' Union, winning the final court battle but losing the war against the employer in not being able to return to work when faced with a newly hired work force (Chapter 5). The same trade union, aligned with the United Democratic Front, suffered murders at the hands of and engaged in violence with Inkatha in the Natal midlands (Chapter 6). Two chapters cover the general topic of forced removals, where residents of an urban township (Chapter 12) and a black village in a "white area" (Chapter Page 96 follows: 10) were able to ultimately resist government efforts to move them. In another campaign around land issues, the residents of the Moutse district used both ethnicity and gender to fight against incorporation into KwaNdebele, one of the apartheid Bantustans or homelands (Chapter 11).
The bulk of the book is thus a presentation of these "narratives of resistance through law" (6), occasionally in detail that is downright excessive. Yet of course, these narratives are employed, like the Truth Commission, towards a certain end. In Abel's case, this end is the attempt to "understand the value and limits of legality in resisting authoritarian regimes." (3). For Abel, "South Africa . . . presents the ideal setting in which to explore the central question of jurisprudence: the circumstances under which, extent to which, and ways in which legality constrains state power." (3).
The material presented in this narrative format is the major strength of the book. Indeed, its value as a record is acknowledged in a cover blurb by Albie Sachs, a former ANC stalwart who is presently a Justice of South Africa's Constitutional Court: "Many U.S. scholars pronounced boldly and brilliantly on the evolving situation in South Africa, and got it all wrong. Rick Abel was more modest and painstaking in his endeavors, and he got it right. This study is a meticulously recorded version of some of the major political trials in the last decade of apartheid."
In another sense, however, Abel's project differs significantly from the Truth Commission's. The stories Abel tells are based upon a conception of truth that is considerably less robust than that implied by the Commission's statutory duty "to establish the truth in relation to past events." Certainly, the Commission would agree with Abel that some parts of these stories will never be known with certainty. For instance, Abel forthrightly engages in informed speculation about the causes of the bureaucratic reaction to the Legal Resources Centre's successful test cases against the pass laws. (63-64). But Abel goes beyond such an acknowledgment of incomplete knowledge. He is alive to the notion that the truth is inherently ambiguous: "A threshold lesson is humility about the possibility of ascertaining the "truth" about what happened (a variant of the fact skepticism of legal realists like Jerome Frank). Why were the four MAWU supporters driving around the armed Inkatha encampment the night before the rally? Certainly not seeking a quiet place for Phineas and Flomena to make love [as they claimed]." (203) Abel states elsewhere that "facts are almost always ambiguous." (536 but cf. 534).
Moreover, Abel also argues against the truth of sociological generalizations. At least in regard to his subject material here, high-level political trials/campaigns, the sociologist capitulates to the historian: "This book concerns large, complex events, extending over many years, involving scores of participants, with repercussions for the entire society. Each case is idiosyncratic and inherently unpredictable, peculiar not only to South Africa in the 1980s but also to the unique conjuncture of time, place, and actors. Historical interpretation must complement, and often displace, sociological generalization." (545). Abel highlights the character of individuals and the important role of chance.
Still, beneath all protestations of mere Page 97 follows: story-telling lies some form of social theory. Abel is explicit in viewing law as relatively autonomous from politics (Chapter 2). However, more fundamental to his project is his theory of collective action, contained within his primary unit of analysis, a legal campaign. The first step is "the construction of adversaries: who they are and whether individual or collective." (524) Second, parties will choose a mode of engagement. In Abel's view, executive, legislative or adjudicative action (that is, legal action) is usually a second choice for both opposition and government after the option of negotiation. (525). Third, a party has to choose whether to be proactive or reactive. Here, with the planning advantages on the side of the government, Abel concludes that law was more effective as a shield (reactive) rather than as a sword (proactive) for the opposition. (527f).
Abel also forthrightly answers his own question about the worth of law in opposing unjust regimes: "[D]id law make a difference? The bottom line is an unambiguous yes. The opposition secured victories in court that eluded them elsewhere and did so at least partly because of law." (533). Indeed, Abel places himself in a theoretical tradition seeing the rule of law as a universal cultural achievement. (3).
What Abel arguably deemphasizes is the cultural role law may play in such campaigns. For instance, Abel is aware of the problems of assuming rather than explaining identity but he at times paints government and opposition with a broad brush that may not withstand finer-grained analysis. Interestingly enough, an emphasis on the role of ordinary people as opposed to their legal representatives is a principal theme of the short foreword by none other than President Nelson Mandela.
These conclusions about the role of law in collective action together with some characterizations of South African society form perhaps the secondary strength of the book. Together they constitute a number of propositions about the role of law during this time period and in South African society more generally which are ripe for research.
For instance, borrowing from Toqueville, Abel asserts that legality is as important to South African political culture -- both in constructing apartheid and in opposing it -- as it has been to that of the United States. (11-12). Moreover, contrary to present memories, Abel writes that "[t]he legal profession . . . failed to champion the rule of law." (19) Finally, noting the South African commentators' "obsess[ion]" with the constitutional framework, Abel forecasts that "at least as significant as substantive rules are the organization and composition of legal institutions: the bench, prosecutorial branch, and the legal profession." (548).
With suggestions such as these coupled to the accounts of some of the significant anti-apartheid legal campaigns, Abel's book will serve both as a first-level history -- such as the Truth Commission may provide -- but also as a guide in understanding the role of law in South African society.