The Difference Law Makes
| Author | David Dyzenhaus |
| DOI | http://doi.org/10.1111/1468-2230.00121 |
| Published date | 01 November 1997 |
| Date | 01 November 1997 |
REVIEW ARTICLE
The Difference Law Makes
David Dyzenhaus*
Richard Abel,Politics by Other Means: Law in the Struggle Against
Apartheid, 1980–1994, New York: Routledge, 1995, xxi + 644 pp, pb £19.95.
Michael Lobban,White Man’s Justice: South African Political Trials in the
Black Consciousness Era, Oxford: Clarendon Press, 1996, ix + 288 pp, pb
£14.95.
1
‘The struggle against apartheid is one of the great contemporary moral dramas’,
says Richard Abel on the first page of Politics by Other Means: Law in the
Struggle Against Apartheid, 1980–1994–. His account of that struggle focuses on
the double role of law in it — law as the sword of the oppressor and law as the
shield for the oppressed. Similarly, in White Man’s Justice: South African Political
Trials in the Black Consciousness Era, Michael Lobban offers an account of the
role law played in judicial characterisations of resistance to apartheid when the
resisters had been brought to court charged with various crimes against the state.
There is a lot of common ground between Abel and Lobban. Both assume that
the central question of jurisprudence is the relationship between law and politics —
more precisely, the question of how law necessarily constrains politics. They think,
furthermore, that apartheid South Africa should be fertile ground for an
investigation of the relationship between law and politics. This is a compelling
assumption because apartheid South Africa presented such a striking example of a
‘wicked legal system’. It was a legal order which had all the basic institutions
familiar to lawyers in Western democracies and it functioned in much the same
way as their own legal orders. However, it had also been made the instrument of a
racist regime who used it not only to legislate its ideology into law but also to
outlaw in draconian ways most organised opposition to apartheid. In sum, the
apartheid legal order should tell us much about the ability or inability of law to
constrain politics.
In addition, both Abel and Lobban move beyond a traditional narrow focus on
legal reasoning to a broader perspective. Their perspective is broader, first, because
it investigates the social and political context which can tell us how challenges to
the powerful become legal challenges. Secondly, it looks to the role that law plays
in structuring the perceptions and conduct of all legal actors — of those subject to
the law, of the lawyers who are responsible for channelling their challenges to
authority or for defending them in court, of the officials who claim the law’s
authority for their actions, as well as the perceptions and conduct of judges and
magistrates charged with interpretation and application of the law. Thirdly, they
investigate the question of the interaction of law and fact when the issue is not only
The Modern Law Review Limited 1997 (MLR 60:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
866
* Faculty of Law and Department of Philosphy, University of Toronto.
1 All page references in the text are to these books.
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