Introduction: law and South African literature.
In Mark Sanders's illuminating analysis of testimony provided before the South African Truth and Reconciliation Commission, he reflects that "[l]aw's relation to literature ... is not one of opposition but of interdependence. In order to be law, law engages, and engages with, cultural explanation, linguistic idiom, and even literary form" (2007: 9). Law is a genre of literature, a discursive regime, mediated through textuality. And literature is law-bound, governed by laws, as Jacques Derrida reminds us: "the legal personality of the text, its identity, its unicity, its rights, and so on" are "guaranteed by law, by a set of legal acts" (1992: 185).
Yet the relationship between law and literature is more fraught than Sanders's characterisation suggests. Law's normativity depends on a repression of its literariness. Law's positivist conception of itself as neutral and objective, its claim to scientificity, represents a de-ideologisation of its experience and interpretation of events. To confront law with its literariness is to encounter the contamination of its narratives by practices of a fictionalising kind. It is to draw attention to the historical contingency of law's practices.
Law's relationship to literature is one of opposition as well as interdependence. Law is a discourse that constitutes and regulates subjects, subjectivities and social formations, "an exceptional intersection of textuality and social power" (Brookes 1996: 15) whose dominance literature is in a position to challenge. Literature may reflect and even endorse hegemonic cultural assumptions, but it is also a "site of struggle" where articulations dominant in law may be contested (Aristedemou 2000: 10). Literature confronts law with representations repressed by law and in doing so provides inspiration for critiques levelled against the justificatory enterprises of law, as well as resources for contestation and improvement: "Literature deconstructs law .... [It] suggests other possibilities for law, other means of expression of law and more profoundly, conceptions of value and justice that draw upon a wider variety of gender, sexuality, ethnicity and lifestyle" (Goodrich 1996: 6) than those reflected in legal texts. Literature's oppositional relation to law may be viewed as a kind of supplementarity: it "draws attention to inequities committed by law's exclusions" (Thomas 1991: 537).
Consider a South African example. In Andre Brink's novel, A Chain of Voices (1982), a fictionalised reconstruction of an unsuccessful slave uprising in the Cape in 1825, the monologues of thirty characters, who relate their versions of the rebellion, are flanked by extracts from two authentic documents from the records of the Cape Court of Justice: an "Act of Accusation", which provides the official version of the rebellion and establishes the case against the rebels, and the "Verdict", at the end of the novel, where the court determines the guilt of the participants and imposes punishment. The various narratives "bear witness to a desire to supplement" the official legal accounts (Jolly 1996: 35). As fictional reconstructions of the events of the revolt, together they place in question the epistemic status and ethico-political authority of the "Act" and the "Verdict".
There are three main strands of law and literature scholarship. (1) The first, sometimes referred to as law in literature, engages with literary representations of trials, legal practitioners, law-enforcers, crime, punishment and imprisonment. A second focus is on law as a genre of literature: law as literature. Such work concerns itself with the role of narrative, metaphor and other rhetorical devices in legal texts such as judgements, legislation and constitutions. Law as literature also encompasses the application of literary modes of reading in the interpretation of legal texts, extending to legal interpretation the kinds of questions commonplace in literary theory: in what way, if at all, do the intentions of the author(s) control the meaning of a legal text? To what extent is the legal interpreter responsible for the generation of meaning? What constrains legal interpretation? A third sub-field of law and literature scholarship focuses on the regulation of literature by law: laws governing the production and consumption of literature.
An established field of interdisciplinary study in the United States, law and literature has received scant attention from postcolonial literary critics. Acknowledgements of the centrality of law in the regulation of colonised states are now commonplace in postcolonial theory and criticism, yet sustained engagements by postcolonial literary critics with the law have been infrequent. A themed volume of Ariel (35(1&2), 2004) entitled "Law, Literature, Postcoloniality", and the inclusion of a chapter devoted to law and literature in postcolonial society in a recent critical introduction to the field (Dolin 2007: 166-81), nevertheless attest to the recent engagement of postcolonial critics with representations of law. With the exception of Sanders's Ambiguities of Witnessing: Law and Literature in a Time of a Truth Commission (2007) and Carrol Clarkson's Drawing the Line: Towards and Aesthetics of Post-Apartheid Justice (forthcoming, 2011), however, law and literature has attracted little attention from literary critics working on South African literature or from South African legal scholars. Yet there are fertile opportunities for law and South African literature scholarship.
From the perspective of law in literature, representations of law permeate South African writing: legislation, adjudication, law-enforcement, crime and imprisonment feature prominently in the works of Herman Charles Bosman, Andre Brink, J M Coetzee, Athol Fugard, Nadine Gordimer, Ellen Kuzwayo, Zakes Mda, Bloke Modisane, Alan Paton, Jonny Steinberg, Marlene van Niekerk, Ivan Vladislavic and Zoe Wicomb, amongst many others. This fascination with law is unsurprising, since law has in South Africa operated as the primary technology of colonial power, or as Gary Boire puts it, "the perfect symbolic metonym of colonial authority" (1994: 204). Colonial and apartheid law and law-enforcement bring in their train physical, epistemic and discursive violence. South African literature frequently resists the colonial legal project of othering by opposing to it the narrative voices and experiences of the colonised. It contests the claims of legal narratives of colonial law-makers and courts, disarming spurious justifications for racism and violence. Since most law and literature work is undertaken under the rubric of law in literature, I devote Section Two of this introduction to a prolegomenous look at selected works of apartheid and post-apartheid literature to explore some of the possibilities for this kind of scholarship that such works afford.
Apartheid and post-apartheid legal texts offer abundant opportunities for law as literature work. For instance, the style and rhetoric of South African legal decisions, and their connection with politics and justice, await sustained interrogation. The style and rhetoric of the apartheid judiciary's judgements reflect an impersonality and high-minded austerity that have the effect of concealing the authors' presence in the text and obscuring the ideology colouring these decisions. By contrast, post-apartheid legal judgements in certain respects break with this convention, reflecting unconventional narrative structures that evidence eagerness to escape the stranglehold of the past. There is likewise a need for work that engages with South African legal disputes as "contests over narrative, not just at a surface level of evidence presented and contradicted, but at a deeper level of established versus alternative social visions" (Dolin 2007: 30). Stephen Clingman's essay in this issue is an example of this kind of work, dealing as it does with the South African Treason Trial as narrative: with the way the defence gained control of the text of the trial by framing and shaping the narrative in its favour.
The branch of law and literature scholarship concerned with the legal regulation of law has particular significance for South African literature, since from the early 1960s until the 1980s, the South African state "operated one of the most comprehensive censorship systems in the world" which "sought to control the dissemination of signs in whatever form" (Coetzee 1996: 34). The censorship system instituted by the National Party government through the 1963 Publications and Entertainments Act transferred inordinate power to a group of censors who were "agents of the government's repressive anxieties . charged with the task of protecting the apartheid order from seditious, obscene and blasphemous representations", and "officially certified guardians of the literary ... the apartheid regime's literature police" (Macdonald 2009: 11). A review article by Christopher Merrett dealing with Peter Macdonald's recent account of censorship in South Africa, The Literature Police: Apartheid Censorship and Its Cultural Consequences (2009), appears in this issue.
It seems hard to expect much credibility in recommending law and literature study here unless I can provide reasons why readers ought to consider it important. Among the reasons that South African academics have for taking law and literature seriously, aside from the critique of law that South African literature offers, are its pedagogical applications and advantages. Law and literature modules may be offered by English Studies departments, many of whose students are law students, but also in law schools--the majority of law schools in the United States offer law and literature courses (Dunlop 1991: 63). Departments of literary studies in South Africa, engaged in analysing the colonial and postcolonial in South African literature, should not need convincing of the advantages to their students of studying texts representing aspects of colonial and postcolonial legal systems if they accept that law is "[i]n many ways ... colonialism's first language" (Boire 2004: 231) and that it "was a central mode and legitimation of colonialism" (Fitzpatrick 1989: 276).
Law schools, by contrast, have been reticent about interdisciplinary approaches such as law and literature. In part, this is due to an internalist approach, according to which there are arguments, approaches, skills and forms of knowledge distinctive to law that must be mastered to engage with it competently. The discipline of law is held to be sufficient unto itself without the intrusion of knowledge and skills from other disciplines. A second reason is that the modern professional law school views its primary business as the training of lawyers to engage in the practice of law. The study of literature is often viewed as irrelevant to or a distraction from the aims of professional legal education. A case for law and literature must therefore be made to show that an extreme internalist position is mistaken and that law and literature has the potential to produce more knowledgeable, competent and morally aware lawyers.
There is reason to believe that the study of law is connected to the humanities--literature and philosophy, in particular--and that the discussion and analysis of legal issues cannot be undertaken effectively within the exclusive confines of traditional legal materials such as cases, statutes and textbooks. As Supreme Court Justice Learned Hand, one of the US's most distinguished judges, observed:
It is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books that have specifically been written on the subject. (quoted in Frankfurter 1951: 81)
Law is concerned with (because it regulates) life in its entirety, an understanding of which, in all its protean forms, is the concern of the humanities. Devaluation of the humanities may produce "generations of useful, docile, technically trained machines" whose skills are suited to profit-making. What are left undeveloped, however, are "searching critical thought, daring imagination, empathetic understanding of human experiences of many kinds, and understanding of the complexity of the world we live in" (Nussbaum 2010: 13). Peter Goodrich writes: "Neither a statutory text nor a case nor a textbook nor a practitioner's manual invites dialogue or opinion. They are stylistically gauged to state the law through an awesomely boring and repetitive panoply of citation, quotation, footnoted references, names of cases, names of statutes, names of judges ..." (1990: 7). On the other hand, by imaginatively representing circumstances which invite the reader to make a judgement, literature offers respite from the linear and coercive discourse that characterises much legal writing, encouraging students to think for themselves. As Elizabeth Perry Hodges remarks, "Many students ... are incapable of structuring a critical analysis in any language because they have not undergone the rigorous training that should accompany undergraduate study of literature or philosophy, training that would permit them to entertain ... the notion that no text is absolutely authoritative" (1988: 638).
There are strong arguments in favour of law students reading literature which features law. First, it reduces the degree to which law students will identify the law exclusively with the norms and decisions described in text books, acts of legislation, and legal judgements, which present an internal and therefore skewed picture of law. Martin Chanock emphasises the need in South Africa to "take seriously that part of a legal culture which has been given least consideration in formal legal literature so far--the discourses about law in the culture at large, about institutions, practices and values" (2001: 525). He advocates the study of internal professional legal discourses and discourses about law, such as literary narratives; regarding the latter, he considers that "their categories and ways of reasoning can be and often have been in the South African case, not only very different but also more just" (2001: 526).
Second, literature offers an ethical and a political critique of the legal order. As Charles Dunlop observes:
Fiction can place lawyers' and law students' presumptively conservative values against a broader background, leading the reader to question those values or to think about them more carefully. The long tradition of anti-law sentiment in literature provides a systematic counter-balance to the pro-law rhetoric pervasive in most legal writing and teaching. (1991: 72)
Third, works of South African literature offer depictions of legal officials and lawyers that may be edifying for law students. Nadine Gordimer's oeuvre immediately offers two examples. The protagonist of None to Accompany Me (1994), Vera Stark, represents Gordimer's alternative to the model of the lawyer promoted by the legal services industry: she is not motivated by economic efficiency or accumulation of money, imperatives in accordance with which the identity of law students is shaped in contemporary capitalist society. Vera combines technical virtuosity--she possesses "the impulse to order" (3) and an ability to distinguish fact from fantasy (11)--with a commitment to social justice. She chooses to work for a foundation that assists communities with their claims "for having restored to them the village, the land, their place, which was taken from them and allotted to whites" (13).
Under colonialism and apartheid blacks (and women) seeking admission to the legal profession were disadvantaged and disparaged (Sachs 1973: 209-13). In The House Gun (1998), Gordimer recuperates the agency and competence of the black lawyer in the figure of Senior Counsel Hamilton Motsamai. He "possesses all the desirable traits of the model attorney" (Durst 2001: 67): competence, intelligence and strategic adeptness as well as exemplary "compassion" (1998: 128) and "empathy" (1998: 275).
Other lawyers and judges portrayed in South African literature occupy positions that are less determinate than the models put forward by Gordimer --the Magistrate in Coetzee's Waiting for the Barbarians (1980) is an example--but no less instructive. Others are simply agents of colonial domination. Confronting such characters invites students to question their identities as lawyers.
Law in South African literature
Since, I suspect, most readers of this introduction will be mainly interested in apartheid and post-apartheid literature, I shall restrict myself here to considering representative examples of literature published from 1948 that engage importantly with law. (All but one of the essays in this issue--Khwezi Mkhize's, which assesses representations of normative conduct for African mineworkers in the newspaper Umteteli wa Bantu--deal with apartheid and post-apartheid law.) I begin with novels, focusing especially on those of Coetzee, Gordimer and Paton, and then proceed to consider examples of life writing.
Two novels by Alan Paton express, respectively, liberal reverence for law, which appears to him to hold promise as an instantiation of the liberal ideal of the Rule of Law prior to the National Party victory in 1948, and the erosion of that optimism as it grew clear that the Rule of Law was becoming increasingly remote from the reality of what Derrida describes as the "pathological proliferation of juridical prostheses (laws, acts, amendments) destined to legalise to the slightest detail the effects of fundamental racism, of state racism" (1987: 18). For the narrator of Paton's Cry, the Beloved Country (1958 ), the impartiality and political neutrality of the judiciary, a branch of government that in the liberal ontology is held separate from the political branches, which are responsible for substantive injustice, enables it to serve procedural justice (136-7). This adulation of the judiciary in undemocratic South Africa represents a conventional view of the judiciary at the time, according to which it had "fulfilled its task with absolute independence and impartiality . any inequality in the administration of justice can be ascribed solely to discriminatory legislation, the objects of which the courts are bound to apply without questioning its equity" (Corder 1984: 231-2).
Too Late the Phalarope (1971 ), Paton's second novel, reflects his growing conviction that South African law's enforcement of the norms of Afrikaner Calvinism renders law an instrument to restrict individual liberty and institutionalise racist ideology. This novel stages a critique of Afrikaner Calvinism that resonates with John Stuart Mill's objection that " [a]ccording to [Calvinism], the one great offence of man is self-will. All the good of which humanity is capable, is comprised in obedience . crushing out any of the human faculties, capacities and susceptibilities, is no evil: man needs no capacity, but that of surrendering himself to God" (1975 : 76). Mill opposed to Calvinism the claim that "desires and impulses are as much a part of a perfect human being, as beliefs and restraints" (74). The devaluation of desire and impulse by Calvinism and its "wearing down into uniformity" (77) of the individual produce a distorted character. The central focus of Too Late the Phalarope is a breach of the Immorality Act of 1927, which criminalised inter-racial sex. Paton indicts both the legal and ethical norms that regulate the behaviour of members of the community, and the strict enforcement of those norms.
J M Coetzee's Waiting for the Barbarians (1980) was written in response to acts of violence and torture by the South African security forces, legally indemnified in advance, inflicted on those deemed enemies of the apartheid state. It charts the alteration in the orientation of the Magistrate, a liberal "man of conscience" (Coetzee 1992: 363), from servant of the Empire and administrator of its laws to its adversary. This shift is triggered by the torture, in a "twilight of legal illegality" (1992: 363), of 'barbarians' by Colonel Joll, an agent of the Empire authorised by "emergency powers" (1980: 1). It becomes evident that the Empire's law is an apparatus of power rather than an institution that protects individual liberty (1980: 92). Waiting for the Barbarians offers allegorical terms for thinking about the relationship between law, power and torture not only in apartheid South Africa, but also elsewhere. In particular, it stimulates reflection--which Coetzee has subsequently invited (2007: 171-2)--on the granting by the Bush administration of emergency powers authorising torture of detainees as well as the shamelessness of its efforts to subvert the interdictions concerning torture contained in international law and conventions.
Of great interest from a law and literature perspective is Lionel Burger's trial and address from the dock in Gordimer's Burger S Daughter (1979), the background of which is the Soweto uprising of 1976 and its aftermath. Lionel, whose character is based on the advocate and communist party member Bram Fischer, some of whose words from the dock in his trial Lionel echoes, is prosecuted for illegal activities in resistance to the apartheid state. Accounting for his political ambition--"the national liberation of the African people" (26)--Lionel bears witness to the "terrifying contradiction" he has confronted between being a member of a group who "worship the God of Justice and practise discrimination, [yet] ... deny the humanity of the black people they live among" (25).
Post-apartheid novels necessarily represent law differently from apartheid novels: new social contexts reflect new social conditions and stage new literary interventions. Post-apartheid South Africa is characterised both by a turn to law--the introduction of a written constitution containing a bill of rights--and by transgression, criminality and lawlessness. How does literature represent and respond to law in the post-apartheid context? In Gordimer's None to Accompany Me, a novel of transition written after the release of Mandela and the unbanning of the ANC, the state legal apparatus is shown to be in the process of divesting itself of the trappings of material violence (1994: 94). At the same time, transitional South Africa is revealed as pervaded by criminal violence. Gordimer's narrator takes it that the motive for violent crime is poverty and inequality, as well as revenge, although a section of media audiences, she reflects, will attribute responsibility for attacks to the fact that victims "didn't keep the gun handy" (189).
The House Gun (1998), however, reveals the potentially lethal consequences of having a gun to hand: Duncan discharges a gun and kills Carl, one of his co-tenants, after he discovers Carl having sex with his (Duncan's) girlfriend. Gordimer here appears to draw inspiration from the narratives contained in recent South African judicial decisions dealing with the defence of emotional stress as temporary non-pathological incapacity (S v Campher; S v Laubscher; S v Wiid; S v Potgieter and S v Nursingh). (2) The view of post-apartheid law reflected in The House Gun reflects optimism about law's capacity for justice, amounting to a kind of liberal triumphalism. Gordimer implies that the view of the judge presiding in Duncan's murder trial--that the structural nature of the social violence in which the accused is situated diminishes his accountability and mitigates liability--represents an advance, from the perspective of justice, on the judicial approach followed during apartheid. Further, the judge's sentence is not simply equitable; it is more lenient than that, since he insists, "there must also be a measure of mercy" (273). The narrator describes the Constitutional Court, in the process of abolishing capital punishment, as "the antithesis of the confusion and disorientation of the fevered mind", while her description of individual Constitutional Court judges is unqualifiedly complimentary (135-7).
Gordimer's support for liberal legality in the new South Africa threatens to obscure the ways in which legal discourse continues to operate as an apparatus of power, albeit differently from the exercise of repressive state power during apartheid. (3) Dominic Head's assessment of the South African transition enables an understanding of representations of post-apartheid law:
The demise of the apartheid regime offers an exemplary working-through of Foucault's conviction that power is something that is exercised at the micro-level of society, rather than something which is possessed, in a 'top-down' model of power. The postcolonial moment, indeed, may be postmodernist in exactly this sense, with its potential (at least) to install a revisionist model of power. (1995: 56)
Although law after apartheid distances itself from physical violence and incorporates liberal rights, the purpose of which in the liberal account is to protect citizens from abuses of state power, law is conjoined with discipline, that is, with non-egalitarian and asymmetrical techniques of coercion and subjection that intervene in intimate aspects of personal life. Law is regulatory and normalising (and less coercive, repressive and excessively punitive than during apartheid).
In Disgrace (1999), for example, Coetzee stages the disciplining, in a Foucauldian sense (Lenta 2010), of an academic, David Lurie. In the course of the disciplinary hearing that follows his aggressive seduction of his student, Melanie, its members attempt to coerce him into a confession by offering to suspend his punishment (dismissal) in exchange. Lurie's initial refusal to narrativise his motivational life marks a resistance to disciplinary power. Slavoj Zizek reflects that "those in power often prefer even a critical participation, a dialogue, to silence ... to make sure our ominous passivity is broken". Lurie's resistance to the disciplinary committee's coercion represents an instance of what Zizek admiringly calls a "true political act" (2008: 183, emphasis in original).
The thematic scope of Disgrace extends beyond this university's legal system and disciplinary apparatus: it also "evinces at once a fixation with the [state legal system] and a significant anxiety about its capabilities" (Anker 2008: 235). Lurie's response to the rape of his daughter, Lucy--his sense that "they ought to install bars, security gates, a perimeter fence" (113) and his demand for retribution: "I want these men caught and brought before the law and punished" (119)--reflects an anxiety about lawlessness that refers back to Western colonial conceptions of law and legal boundaries which, far from resolving the problem of crime, draw attention back to criminality. As Carrol Clarkson points out in her essay in this issue, which focuses on the idea of the legal boundary or nomos in the work of Peter Fitzpatrick, Lucy's response to the rape is not tethered to Western colonial conceptions of legal boundaries and redress, inviting a questioning of the limits and capacities of Western law.
A defining feature of the postcolony is its association with "a counterfeit modernity, a modernity of counterfeit" (Comaroff and Comaroff 2006: 13). Its outlaw economy--the manufacture of fictitious documents, false credentials, fake IDs and pirated drugs and films--is fuelled by economic exclusion, coexisting with affordable technology and inefficient policing. The anti-heroes of Imraan Coovadia's Green-eyed Thieves (2006), the subject of Neelika Jayawardane's essay in this issue, participate in this marketplace of simulated reality. The elusive identities of the novel's protagonists, Jayawardane shows, threaten the integrity of the nation-state.
Life writing is a focus for law and literature scholars, in part because it offers oppositional narratives by those excluded from legal power: the experiences of women, blacks and other marginalised Others have been invisible or misconstrued or obscured by legislators and judges. During apartheid, for example, "judges displayed lamentably little understanding or knowledge of the plight of blacks in South Africa" (Corder 1984: 91). Autobiography presents an epistemological and political challenge to official legal narratives, a means by which to recuperate marginalised experience and perspective and to challenge law's privileging of the perspectives of affluent, heterosexual white men.
In Blame Me on History (1986 ), a reflection on the impact of state power on black masculine subjectivity--in particular, on the black intellectual, the "Situation", scorned by whites and snubbed by blacks during apartheid--Bloke Modisane considers the distortions of the subjectivity of the colonised engineered by discriminatory legal regulation and police violence. He critiques the liberal ideology of the Rule of Law by revealing law and its enforcement in the colonial context as nothing more than an oppressive exercise of state power.
In her autobiography published towards the end of apartheid, Call Me Woman (1985), Ellen Kuzwayo engages with apartheid legislation: its disregard for human rights and Christian principles in the name of which the laws are enacted; the fear and mistrust it engenders, as well as the social injustice in areas such as employment and property. Kuzwayo bears witness to the "responsibility placed on the shoulders of senior women in the family" (12) in whose care families remained while their husbands go to earn money in the cities. A particular concern is with the destructive effect of discrimination and social injustice on what Robert Putnam (2000) has termed "social capital": levels of trust and social relations that bind people together and foster moral relationships. The decline of trust results in the decay of morality and a turn to crime (1985: 19).
In the post-apartheid context, Portrait with Keys: Joburg and What-what (2006), is a hybrid work that combines diverse genres--autobiography, biography, historical writing and the essay--to apprehend the topology of its author's home city, Johannesburg. Ivan Vladislavic wanders through neighbourhoods of Johannesburg, describing found objects and aleatory encounters with characters who inhabit this space. He evinces a concern with crime and the insecurity and security measures it generates, rendering these things as a constituent of the postcolonial urban "everyday abnormality" (139).
Prison autobiography offers an important record of imprisonment under pass and security laws: "incarceration was simultaneously an individual experience and a synecdochal marker of communal suffering. In fact, the prison started to play the role of the nation in miniature: a claustrophobic, tightly controlled, racist and brutal regime encountered in one of its most coercive material manifestations" (Roux 2009: 231). Writers, intellectuals and political activists, black and white, were persecuted by the security police and forced to endure imprisonment and torture. In his first autobiographical venture, The Jail Diary of Albie Sachs (1990), Sachs, at the time an advocate representing those charged with violating apartheid laws, recounts his experience in October 1963 of being arrested in chambers and held under the notorious 90-day law so that information about his anti-apartheid activities could be extracted from him. The Jail Diary tracks the progress of Sachs' mental disintegration and physical deterioration, produced by isolation and enforced inactivity. Stephanie on Trial (1968) relates Sachs' experience of defending Stephanie, who eventually became his wife, and others, charged with destroying State property in protest against apartheid laws. He recounts how, during a subsequent detention, the security police sought to induce him to co-operate with their interrogation by depriving him of sleep (1968: 212-55).
The True Confessions of an Albino Terrorist (1984) attests to the violations that Breyten Breytenbach suffered as a victim of incarceration (to which he was sentenced under the Terrorism Act), for two years of which he was kept in solitary confinement. He reports on the rhythms of daily life, its routines and economies. He documents the pathologies and mortifications of prison life: the corrosive effects of long-term isolation (130), suicide attempts by prisoners (230-1), acts of sodomy (270), murder and cannibalism among prisoners (272), and the violence of warders. He reports on his interrogator's attempts to make him confess to participation in underground activities they suspect he is involved in, despite all evidence to the contrary: "they create the enemy ... we are all guilty" (49) he observes in a formulation that recalls Kafka's "In the Penal Settlement" (1949: 192). From the perspective of the state and its agents, Breytenbach's dissent is particularly deserving of punishment because he is an Afrikaner: "he is not merely the 'other' who is to be converted to the rhetoric of Afrikaner patriotism and white dominance; he is the 'self' who has become 'other,' and therefore needs to be converted back to his 'original nature'" (Jolly 1996: 68).
Jonny Steinberg's The Number (2004) is the most acclaimed example of post-apartheid prison writing. It recounts the life story of Magadien Wentzel, introduced to Steinberg on assignment as a journalist at Pollsmoor prison and interviewed by him. Particularly interesting from a law and literature perspective is the link that is revealed between nomos and narrative, a connection that Robert Cover takes to be a constitutive feature of legal institutions (1983: 4). The myth of Nongoloza is transformed into the mores of contemporary gang life: "the decisions [Nongoloza] made at each crossroads are formalized into philosophy and law, the philosophy and law of banditry" (2004: 44). Linked to the idea of banditry is a "fiercely anti-colonial ideology" that "tampers with the boundary between acquisitive crime and political nobility; it hovers ambivalently between an aspiration to social equality and anti-social violence" (2004: xvii). Wentzel's insistence that gang members "were never gangsters" but "freedom fighters" confounds the distinction between political prisoners and criminals that was a feature of anti-apartheid political memoirs (Roux 2009: 242). Isaac Ndlovu's contribution to this issue focuses on the discursive interweaving of narratives in The Number.
Judicial autobiographies are obvious subjects of law and literature scholarship, since they present the revelation of the judicial self obscured by the show of impartiality and objectivity that characterises the exercise of judges' institutional function. Most South African judicial memoirs published during apartheid avoid entering into political debates, including debates concerning the role of the judiciary. Post-apartheid judicial autobiographies by Albie Sachs and Edwin Cameron break with this convention. In his Witness to Aids (2005), Cameron (on the date of publication, a judge on the Supreme Court of Appeal, subsequently appointed to the Constitutional Court) bears witness to his personal ordeal with AIDS. He argues against the Mbeki administration's denialism, referring to scientific studies and sociological data concerning AIDS suffering. His disclosures concerning his own case and his partisan advocacy represent a "disrobing in a sense, for the effect is that we see him ... in all his fragile humanness" (Polatinsky 2008: 58).
Described as "the most 'literary' of lawyers" (Macdonald 2009: 343), Sachs has combined his professional interest in the law with the practice of life writing. The Free Diary of Albie Sachs (2004) interweaves four strands: recollections of past experiences, reflections on dilemmas arising out of Constitutional Court cases, impressions of travelling through Europe as a tourist, and experiences as a "constitutional evangelist" (33) and a "judge at large" (145) lecturing to European audiences on truth commissions and bills of rights. Many passages in The Free Diary are in support of South Africa's Bill of Rights and the Truth and Reconciliation Commission.
In The Strange Alchemy of Life and Law (2009) (reviewed by Karthy Govender in this issue), Sachs reflects on what it is that judges do when they carry out their institutional mandate (3). He shows the influence of his life experiences on his Constitutional Court decisions, extracts of which appear at the end of all but one of the chapters. His second concern is to tell "the story of the story" (7): an account of the "intellectual programme in terms of which [his judgements] have been devised, created, constructed, and formalized" (51).
All of the three main strands of law and literature scholarship--law in literature, law as literature and the legal regulation of literature--are represented in this issue, the purpose of which is to promote, in a South African context, pedagogy and research directed towards a blending of two fields that have until recently "been programmatically disjoined by each discipline's self-regard" (Weisberg 1999: 47). The intention is to stimulate scholars of literature to engage with law, legal scholars and practitioners to consider stylistics and narrative, and both groups to participate in debates that link aesthetics to law and justice.
Anker, Elizabeth. 2008. "Human Rights, Social Justice and J M Coetzee's Disgrace". Modern Fiction Studies 54(2): 233-67.
Aristedemou, Maria. 2000. Law and Literature: Journeys from Her to Eternity. Oxford: Oxford University Press.
Boire, Gary. 1994. "'Ratione Officii': Representing Law in Postcolonial Literatures". Mosaic 27(4): 199-214.
--. 2004. "Symbolic Violence: Law, Literature, Interpretation An Afterword". Ariel 35(1&2): 231-45.
Breytenbach, Breyten. 1984. The True Confessions of an Albino Terrorist. London: Faber and Faber.
Brink, Andre. 1982. A Chain of Voices. New York: William Morrow.
Brookes, Peter. 1996. "The Law as Narrative and Rhetoric". In: Peter Brookes and Paul Gewirtz (eds). Law's Stories: Narrative and Rhetoric in the Law. New Haven: Yale University Press: 14-22.
Cameron, Edwin. 1995. Witness to Aids. Cape Town: Tafelberg.
Chanock, Martin. 2001. The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice. Cambridge: Cambridge University Press.
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(1.) For surveys of 'law and literature' scholarship, see Ward (1995), Posner (1998) and Dolin (2007).
(2.) Respectively, 1987(1) SA 940 (A), 1988 1 SA 163 (A), 1990 1 SACR 561 (A), 1994 1 SACR 61 (A) and 1995 2 SACR 331 (D).
(3.) It is possible that Gordimer does not view post-apartheid law with uncomplicated satisfaction, however. In None to Accompany Me, when Vera's Foundation receives an instruction from members of a "tribe" who have returned illegally to land from which they were "displaced illegally in the first instance" (1994: 101) there arises what Lyotard calls a differend, in which the law's professed competence justly to resolve two competing claims is belied by the fact that one of the claims cannot be expressed in the discourse of the law, which as a result can recognise the claim of only one party (Lyotard 1988: 30). The members of the tribe ground their claim on an instruction from their ancestors. Vera recognises that this claim "didn't look good enough for a legal plea--peasant mysticism can't be codified as a legal right" (1994: 102). Instead she and her colleague follow "their own strategical experience in opposing law through its interstices" (1994: 102).
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|Publication:||Current Writing: Text and Reception in Southern Africa|
|Date:||Jul 1, 2010|
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