Black consciousness on trial: The BPC/SASO trial, 1974-1976

African Studies Seminar series. Paper presented August 1990On 25 September 1974, the South African Students' Organisation and the Black People's Convention held two rallies to celebrate independence in Mozambique. Within two weeks, 29 black consciousness leaders were in detention, as the state prepared for a major trial of the black consciousness movement which would see nine leaders of BFC and SASO facing conspiracy charges under the terrorism act. The state sought to put on trial the actions and ideas of the movement since its foundation, in order to portray it as a revolutionary movement led by self-conscious conspirators. In the state’s view, the black consciousness movement sought to go one stage further than the ANC or PAC had. If they had failed, it was because they had reverted to guerrilla movements without preparing the people for mass revolution: it was this that black consciousness would build. The state thus charged the accused with a conspiracy to bring about revolutionary change and/or the promotion of racial hostility. A second count charged seven of them with organizing the rallies with intent to promote racial hostility. These two counts were mutually reinforcing: the rallies were the confrontational fruition of the conspiracy; the conspiracy explained what the rallies were all about. The conspiracy was to be found primarily in the rhetoric of the organisations, its publications calling on even children to "talk, eat, live, cry and play the struggle for liberation," its language talking of ‘infiltration’. The conspiracy was to be inferred from the "cumulative effects" of the actions and words of the groups, seen "in conjunction with the nature and activities of the organisations.

Habeas corpus, imperial rendition, and the rule of law

In the decades which followed the publication of AV Dicey’s Law of the Constitution, most English lawyers felt confident that the rights and liberties of Englishmen were protected by a rule of law, which was secured through ancient common law remedies such as the writ of habeas corpus. In their view, this ensured that no political activists would be detained without trial, unless there were particular emergencies which allowed the writ’s suspension, in order to protect the very rule of law. At the same time that these arguments were being made, however, detention without trial became an increasingly routine feature of colonial governance. This article examines the attempts used by political detainees from different parts of the empire to challenge their rendition and detention, and explores what the judicial response tells us about perceptions of the rule of law in the era when Dicey’s work was establishing itself as the classic text of constitutional law. Focusing on a number of key cases, it examines how courts examined two central issues in habeas corpus cases. The first concerns the legality of the detention. In discussing this issue, courts were presented with rival approaches to the rule of law, one which was more ‘formalist’ (asking whether the legislative instrument ordering the detention had a valid pedigree derived from the sovereign legislature), and another which was more ‘substantive’ (invoking a notion of fundamental rights). The second concerns the question of control, and explores the response of the courts to challenges to the writ by defendants who argued that they no longer had control over the detainee

The law of obligations: the Anglo-American perspective

The Anglo-American law of obligations was profoundly reshaped in the two centuries after 1800, driven by social and economic changes, and changes in legal institutions and doctrines. In contract law, nineteenth-century jurists increasingly sought to put the rules of law into a coherent rational framework (inspired by continental models resting on will theory), though they soon found that this theory could not explain many contractual doctrines. In tort law, jurists were also divided over whether unifying principles underlying tort could be uncovered, with formalist efforts to find such principles being challenged by Realists who argued that tort was in effect ‘public law in disguise’. The quest for underlying principles was also pursued by scholars of unjust enrichment, first in the United States and subsequently in England; though as in the other areas of obligations, by the end of the twentieth century, there was no consensus on whether this was possible

The commissioners for claims on France and the case of the Baronde Bode, 1815–1861

By presenting original research into British legal history, this volume emphasises the historical shaping of the law by ideas of authority. The essays offer perspectives upon the way that ideas of authority underpinned the conceptualisation and interpretation of legal sources over time and became embedded in legal institutions. The contributors explore the basis of the authority of particular sources of law, such as legislation or court judgments, and highlight how this was affected by shifting ideas relating to concepts of sovereignty, religion, political legitimacy, the nature of law, equity and judicial interpretation. The analysis also encompasses ideas of authority which influenced the development of courts, remedies and jurisdictions, international aspects of legal authority when questions of foreign law or jurisdiction arose in British courts, the wider authority of systems of legal ideas such as natural law, the authority of legal treatises, and the relationship between history, law and legal thought

Postema and the Common Law Tradition

First published in 1986, Gerald Postema’s pathbreaking and influential Bentham and the Common Law Tradition offered a controversial interpretation of how Bentham sought to combine the certainty of a code with flexibility in adjudication. A second edition of the work came out in 2019, with a significant new Afterword in which Postema addresses some of the criticisms of his interpretation. This article revisits some of Postema’s arguments in the book, assesses the Afterword, and considers how his arguments might have been modified in view of other work he has done on the common law mind

Imperial Incarceration

Michael Lobban examines the use of detention without trial in the British African Empire, evaluating the various legal powers used to facilitate imperial expansion. An essential text for lawyers and historians, Imperial Incarceration demonstrates the importance of context in understanding the law's effect

Legal formalism

This chapter considers the era of ‘legal formalism’, which is usually taken to refer to the period in American legal thought between the 1860s and the 1920s, when a new generation of post-bellum treatise-writers and legal academics sought to discover the underlying principles of common law cases, and put them into a rational order. This period is sometimes also referred to as the era of ‘classical legal thought’. In contemporary jurisprudence, the term ‘formalism’ refers to a specific approach to adjudication and constitutional interpretation, which has its defenders as well as its critics. However, in the era under study, it was neither a term which jurists used to describe themselves, nor one which their critics used to describe them

Theory in history: positivism, natural law and conjectural history in seventeenth- and eighteenth-century English legal thought

This collection of original essays brings together leading legal historians and theorists to explore the oft-neglected but important relationship between these two disciplines. Legal historians have often been sceptical of theory. The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the archives might falsify present understandings and demand revisions. On the other side, legal theorists are often dismissive of historical works. History itself seems to many theorists not to offer any jurisprudential insights of use for their projects: at best, history is a repository of data and examples, which may be drawn on by the theorist for her own purposes. The aim of this collection is to invite participants from both sides to ask what lessons legal history can bring to legal theory, and what legal theory can bring to history. What is the theorist to do with the empirical data generated by archival research? What theories should drive the historical enterprise, and what wider lessons can be learned from it? This collection brings together a number of major theorists and legal historians to debate these ideas