Legal Liberalism, Statutory Despotism and State Power in Early Twentieth-Century South Africa

Abstract

This article is about the attempts by pre- and post-Union (1910) South African governments to create effective sedition laws, partly directly to curb specific political opponents, but also to license and focus state intelligence-gathering activities. Supreme Court judges' adherence to a rule-of-law formalism in a succession of court cases both hindered and encouraged these attempts. I am particularly interested in how the courts' imposition of more rigorous standards of performance in the production of evidence eventually exceeded the state's bureaucratic capability and undermined officials' confidence in the instrumental value of the rule of law, leading administrators to enact legislation to suppress their political adversaries without reference to the courts. The judges' stance in this history was not one of progressive or sudden capitulation to the lawmakers' and executive's will, as is sometimes argued, but notably consistent throughout.