Stephen Ellmann

Law and Legitimacy in South Africa

This article examines whether anti-apartheid lawyering might have legitimized the South African legal system by asking what black South Africans actually thought of that system. Perhaps surprisingly, blacks, and in particular Africans, appear to have accorded the legal system a measure of legitimacy despite the oppression they often suffered at its hands. Three paradigms of African opinion are offered to help us understand the complex African response to the legal system: the conservatives, forbearing, acutely concerned with such issues as order and security, and perhaps disposed to be deferential to institutions of white authority; the speakers, fueled by faith in the truth or power of their speech, and welcoming the opportunity to be heard that courts could provide; and the activists, adamantly determined to bring down apartheid, and judging institutions and people by their contribution to that goal. For men and women thinking in these ways, anti-apartheid lawyering probably did contribute to legitimizing the legal system and that systems ideals. But this partial legitimation of the legal system is, in the end, no cause for regret; instead, it may have helped the new South Africa begin building a nation governed by law.