Chapter 1 - Two Regions, (Nearly) One Legal Tradition

Summary

“I hope when the history of these times is written—when the history of the decade of the Sixties will be written, they will record a more intimate and closer attachment year by year between your countries of Africa and this country of the United States.”

—John F. Kennedy

Introduction

The trajectories that drove the Project's success did not begin with its 1967 founding. They had been inherent at the intersections of law and mass movement over the longue durée, and particularly within international anti-apartheid efforts. While the United States and southern Africa possess many differences, their common heritage of settler colonialism and legal regulations of race led to convergences in 1963 and 1967. During these years, the US-based Lawyers’ Committee for Civil Rights Under Law and its international Project emerged. As the next three chapters make clear, these similar histories existed long before the Project's establishment. Each country's unique path and experiences provided for public discussion of decolonization and a need to bridge gaps between official and grassroots dialogues, a need the Project ultimately fulfilled.

Race, law, and the foundations of South Africa

Both societies built and retained legal structures aimed—at least in part—at defining race, class and colour and organizing political power on these grounds. In South Africa, the modern, colonial judiciary dates to the seventeenth century, where early courtrooms served as connecting points between the comparatively strong executive and weak judicial branches. Traditional courts continued to regulate many everyday matters for Africans. Beginning in the early 1800s, Cape Dutch jurists allowed international law as a consideration in domestic cases, hoping it would help to regulate mercantile relationships. Early cases centred on the importation of enslaved humans. Ultimately, slavery in South Africa's Cape Colony ended in 1834 following the Slavery Abolition Act, a British parliamentary decision demonstrating the salience of international law within the country's then-colonial domestic judicial structure. The 1910 Union of South Africa's creation followed a stand-off between British and Dutch-descended settlers, who warred over competing citizenship interests while denying franchise and legal representation to Africans, people of Asian descent, or populations with diffuse racial or ethnic heritages. Thus, definition and regulation of race, ethnicity and identity became a key component in knitting together the Cape’s—and later the Union’s—social fabric.