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The proclamation extended beyond protecting private property from tres- pass. As a strategy for inducing labor, the legislation was by no means unique. Similar situations were found in many parts of the world Nye ; Huggins , yet vagrancy laws have not been subject to thor- ough analysis in the making of the colonial state.
Indeed, given the centrality of private property and the institutions that circled around it in the key Western intellectual notion of civilization, especially in the s, it is surprising that vagrancy is so underresearched. The emphasis on the in- strumentality of vagrancy legislation has diverted attention from the contradictions inherent in it. In particular the cultural and moral mean- ings of this legislation have been ignored. Law not only regulates sociocultural life, it represents it as well.
As an ideology, law contributes to the social construction of the world by. In Namibia, law emerged out of complex factors; settler society was rarely homogenous in its legal needs.
Everyday Lives in Contexts of Dramatic Political Change
Legislation was generally a compromise measure designed to satisfy the needs of several factions of settlers in both Namibia and South Africa as well as for the international audience at the Permanent Mandates Commission of the League of Nations to which the South West African administration had to submit annual reports for oversight and advice. The Vagrancy Proclamation must be read in conjunction with other legislation from this period, and, in such a context, the argument that this overlapping battery of laws served to provide cheap labor for set- tlers seems eminently reasonable.
An employed native could obtain a pass only from his employer. Workers could, but rarely did, take grievances to the magistrate. The same proclamation amended the Masters and Servants Proclamation by doubling the severity of punish- ment for servants. Fines went from three to seven pounds, imprison- ment was similarly extended, and whipping was introduced. If conditions were bad in the reserves, they were even worse in the towns. It was, for example, laid down that natives might not make a noise at night, that they might be expelled without appeal to the courts, and that in the case of Swakopmund they were not allowed to walk on the pavements, etc.
The baselines of native policy were shaped by the Native Reserves Commission that reported in June and underwrote the principles of segregation by arguing for reserves. It comes out succinctly at the hearings of the Perma- nent Mandates Commission. The European population was continually complaining of the large numbers of va- grants, who had no means of subsistence and who stole stock from the farmers. To meet these complaints, the pass system had been invented by the Germans. The world the Germans imposed was considerably weakened with the establishment of the mandate.
The same basic organizational structure persisted but in a much diluted condition. The South Africans engaged in consider- able downsizing. Native administra- tion in Namibia was always a shoestring operation. In addition each magisterial district was in charge of a magistrate who doubled as a native commissioner.
At the same time it was decided that for. Magistrates were recruited from the South Af- rican Department of Justice on a rotating basis, and a usual posting lasted for less than four years South Africa An attempt was made to reward the study of local languages and customs with a cash bonus, but after a few years and general lack of interest this fell into abeyance. Indeed it was argued that most of the settler popula- tion knew something of native customs and languages in any case, and thus no special training was deemed necessary pmc Minutes ; Typically they were transferred in from South Africa on a two-year tour of duty.
This meant that they had considerable informal power. Nowhere is this better illus- trated than among the superintendents. They were responsible for all re- serve development work, the collection of grazing fees, the allocation of grazing and habitional areas, and had an important say in admission. The post.
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Hailey n. Despite settler demands for increased policing, abatement was the norm. Until , the general pattern was for a consistent decrease in authorized strength and a constant undermanning as actual strength never matched the authorized members. Indeed, when the administra- tion was forced to retrench personnel during the Depression, the largest single block of retrenchments, 81 Europeans and natives, came from the police force South Africa Downsizing occurred not only in raw numbers but also in terms of distribution.
While the Germans had operated police stations, this number decreased to 39 under the South Africans pmc Minutes In , for example, four new outstations were opened to control the movement of infected livestock from the north. In and an- other three outstations were commissioned, but their purpose appears to have been largely to prevent the theft of diamonds.
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This occurred not because of rebellious natives or recalcitrant workers, but because the South Africans feared a putsch by the local German settler minority. The business of the police, at least in popular police folklore, was patrolling Swanepoel Typically they would undertake three-week. It was only in that their camels and horses were replaced by twenty vehicles. These included the following tasks: administration and prosecution under the Motor Vehicle Ordinance including roadworthiness and driver testing , prosecuting, pass issuance, branding native stock, pre- paring voters rolls, relieving reserve superintendents, agricultural cen- sus, examining sheep and goats for scab, land board inspections, com- piling lists of school children, representing the meat trade control board, inoculating cattle, and serving as subreceivers of revenue and as postal agents South Africa Such a situation was not conducive to formal policing, and this was acknowledged by the administration:.
Laws have been provided to deal with this aspect of native admin- istration, but in a country of vast distances. Per- sons living at great distances from the nearest magistracy prefer to put up with impudent conduct on the part of their natives rather than undertake long journeys for the purpose of putting the law in motion and risk the possible loss of their servants, to say nothing of the delay and expense and thus no special training was deemed necessary. Given the quality of this enforcement system, statistics should be treated with more than average suspicion.
But, while they are problem- atic, they do provide pointers with respect to the main emphases and relationships of the enforcement system. If one examines the ratio of the number of cases sent to court per policeman, the ratio increases from 19 to 1 in to 43 in , and peaks at 50 in before declining to 29 with the infusion of South African Police in Workers recruited by this means simply deserted again! Could there be a correlation be- tween administrative incompetence and incapacity and excessive laws?
Yet as anyone who has extensively used the Namibian archives will attest, one of the most obvious changes accompanying the insertion of the South African administration is the massive decline in administrative documentation. The scribal culture was not well developed among the South African administrators. Records, reports, and routine data collection became increasingly problematic. In- deed some of their most famous native commissioners did not complete their high school educations. Evidently South Africans did not feel the need for such knowledge.
Instead, when justifying themselves to the ex- ternal world like the pmc, the administration argued that white South Africans did not require education or knowledge as they had an inherent understanding of natives that was derived from long experience, a claim they would repeat on numerous occasions Pienaar Nor was there any keen interest in amateur ethnography. Civilisation will never be developed on idleness, and education of the native does not consist of teaching him the alphabet or the Bible only.
Left to himself he will simply sit in the sun and dream about women and cattle. A good harvest results in liberal brewing of beer, heavy drinking and tribal disorders. Work brings him in contact with civilisation and therefore necessarily assists the process of civilising him. South Africa Such discourse has to be contextualized. Labor and poverty were held to be simple polar opposites, and increasing the one would reduce the other. Instead, the rhetoric of civilization and its inherent need for controlling labor enabled colo- nials to control the situation, not in the name of fear, but in the name of the desire to civilize.
These rumors peaked with the Bondelswarts Rebellion. As the administrator observed:. Previous to that, every three or six months we had rumours of ris- ings, resulting in farmers leaving their farms and running into the towns for protection. There is ground for suspecting that certain white people. Isolated murders of white farmers like Mrs.
Coleman in Aus 18 Feb. The July assassination of Gobabis Magistrate van Ryneveld by a Bushman Gordon —98 further exacerbated matters. In lonely country-sides anything in the nature of truculence on the part of a single native may be construed as a symptom of native unrest. The constant anxiety of people who feel that they have no proper protection is productive of a state of mind, which in itself constitutes one of the gravest menaces to peace.
If the native is constantly reminded that his slightest act is followed by a general panic amongst whites, he will inevitably, in due time, conceive a contempt for the people who have him in subjection. This situation should hardly be surprising. In his careful examina- tion of demographics, David Courtwright suggests that rumors are es- pecially apt to generate insecurity in contexts where there are large numbers of single, unattached men In Namibia, settlers were thinly scattered on the ground, and the country in general was no- torious for its low population density.
If there is one thing Catholics, anthropologists, and neo-Marxists agree on, it concerns the crucial role ritual plays in both coping with un- certainty and insecurity on an individual level and state formation on a collective level. This insight was clearly discerned by Sir Herbert Spencer:.
The earliest kind of government, the most general kind of govern- ment, and the government that is ever spontaneously recommenc- ing, is the government of ceremonial observances. More may be said. Many anthropologists have argued that the inculcation of awe and respect by the colonized was more important than force as a means of ruling. Certainly, rituals were deployed for such purposes in Namibia, but given the fractured and politically divisive nature of the Namibian settler community, such commemorative events further fragmented the fragile settler solidarity.
Instead, the focus was on the day- to-day rituals. Indeed these were the contexts in which natives experi- enced the states. Dealing with the Bondelswarts Rebellion, the administrator, Hofmeyr, with no previous military experience, proclaimed himself colonel. The two most famous native commissioners of the interwar years were sticklers for etiquette. According to Reverend Tobias:. Hahn and Eades are very much on a pedestal and keep aloof and speak through an interpreter—they are very anxious for me to speak just as they do. The Bishop came to me before he left and said that Hahn wanted to speak to me [about] my attitude to the natives.
More generally, legalism is a prominent feature in South Africa. As the Windhoek Advertiser, on 3 January , editorialized on native policy:. Not only are the natives beginning to lose respect for their European masters but they are beginning to lose that respect for the law which is the fundamental basis of civilizations. There is an atmosphere most unhealthy to our safety in the local locations.
There is a further aspect of the symbolic dimension. In order to ensure compliance and intragroup cohesion, the ethnic state must ex- ercise power legally. In Namibia, as in South Africa, oppression occurred not so much by terror per se as by the routinization of terror in day-to-day interaction. Police salaries were notoriously low.
Indeed, they were so low that in addition to high turnover, they occasioned a number of letters of complaint in the press from farmers who objected to having to provide patrolling police- men with sustenance. At the same time, an extremely important element of police power came from their nonpolicing duties, since a major source of power was in the control of access to valued goods and services.
Structurally, the situation was conducive to a cozy relationship between settler-farmer and patrolling policeman, in which the latter would fre- quently overlook indiscretions of the former and vice versa. The weak administrative state survived by franchising its legal use of violence to its settlers.
One of the most sensitive observers of the colonial situation, Albert Memmi notes the profound ambivalence permeating the colonial project: How could the colonizer look after his workers while peri- odically gunning down a crowd of the colonized? For the colonizer, to think about the contradictions inherent in colonialism was to under- mine it. The panoply of legislation was a mechanism for the colo- nizers to grant themselves self-absolution.
This legislation and the interaction rituals it sustained established a moral and psychological. Law was a massive local anesthetic that sedated the contradictions and the necessity of thinking. Knowledge may be power under some circumstances, but, in others, power rests on denial and studied displacement. This image of a smoothly functioning social order lends itself to the creation of the capacity for fascist self-delusion. A performer may be taken in by his own act, convinced at the mo- ment that the impression of reality which he fosters is the one and only reality.
In such cases the performer comes to be his own au- dience; he comes to be performer and observer of the same show. Presumably he intracepts or incorporates the standards he attempts to maintain in the presence of others so that his conscience requires him to act in a socially proper way. It will have been necessary for the individual in his performing capacity to conceal from himself in his audience capacity the discreditable facts he has had to learn about the performance; in everyday terms, there will be things he knows, or has known, that he will not be able to tell himself.
The spread of fascism depended on a set of everyday social practices, the fetishism of the ordinary, as Dean MacCannell convincingly argues. From this per- spective, power is the disciplining of men, just as technology disciplines nature as the Farson epigraph shows. In inculcating this attitude, laws like the Va- grancy Proclamation played a major role. Hayes et al. Ox- ford: James Currey. As a counter model, Gluckman proposed that analysis start by ob- serving that Africans and their interactions were an integral part of the modern world system That colonization unleashes a vortex of instability and unpredictability upon the colonized is well established Fanon But what is the impact and psychic cost of domination not on those at the receiving end but on those who ostensibly dominate?
As anthropologists widen their focus and take in the larger context the question of the culture of colonialism has been pushed to the fore Thomas ; Dirks ; Cooper and Stoler Segregation had more to it than simply ensuring an equitable labor supply for settlers:. After providing for domestic and similar essential services at European centres, it is undesirable to allow surplus natives of various races to crowd into municipal locations. South Africa Annual Report See also generally the South Africa Annual Reports. Male-gender language is used exclusively in the legislation.
Noting this increase the administrator commented:. South Africa —9. Another practice was to use prison labor despite League of Nations discomfort with such practices. In the territory boasted eleven jails and three lock-ups controlled by magistrates and sixteen by police; the average daily number of pris-.
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For a number of years, settler demand for prison labor exceeded supply. In the allocation of prison labor, administration requirements were given preference, and then labor was allocated to municipalities at a rate of one shilling per unit while private individuals had to pay one and a half shillings South Africa para. Prison labor statistics are scanty; nevertheless, the following emerges: Assuming that prisoners worked for three hundred days per year, the number of prison workers per day increased from just over 60 for the whole territory in to more than in —hardly an unlimited source of cheap labor.
Second, to the supervision of the activities of subordinates by their superiors within any collec- tivity. It is important to distinguish these as it is to emphasize the potential connections between them. The garnering and storage of information is a prime source of time-space distanciation and therefore of the generation of power. Power is also generated by the supervisory activities of superordinates, since supervision is one medium of co-ordinating. Giddens It was felt absolutely necessary to make provision for the better control of natives in urban areas in the interests of the natives as well as Europeans.
Experience has shown that there is a strong tendency for natives, both men and women, to drift into urban locations where in both cases they neither want nor seek employment. As they simply loaf and do not earn money honestly they resort to illicit liquor selling, prostitution, gambling and other means to obtain it and generally degen- erate.
South Africa para. Administrator Hofmeyr in pmc As has been mentioned in previous reports, the natives of this territory, with the exception of the Ovambos, are purely pastoral people: agriculture has never been practised by them owing to the greatest part of the country being entirely unsuitable for such pursuits, and their only concern was for the care of their herds. Progress amongst such a population has always been much slower than in the case of agriculturalists and it is only to be expected that there would be little evidence of any real progress.
How notions of masculinity permeate law is seen in the treatment of indigenous women. Women were legislatively invisible. Frequently people did not know the laws, and they were encouraged in their ignorance. Nevertheless the majority of native women are under the impression that they are required to carry passes and in the interest of control, they should not be disabused of this idea and travelling passes should continue to be issued to them. It would however be remembered that a native female cannot lawfully be convicted of failing to carry a pass in terms of the provisions of Proc.
Space does not permit an analysis of the exclusion of women from this legislation. The administration responded with its Burgher Law of that allowed for the drafting of settlers into civilian defense units, but the actual functioning of these units drew much derision from the settler press.
Indeed, verbal communication plays a very small part in such assignments. Social order is fragile, impermanent, full of unexpected loop-. The initial supplies for an administrative presence in Ovamboland also included a large number of khaki messenger uniforms. In no part of South Africa has the white population had to submit to more indignities and humiliations from the natives than they have to in this country and it speaks volumes for the forbearance and their loyalty to the Administration that they have not taken the law into their own hands long ago.
Its impact permeated other domains of settler society as well and would be a major factor in explaining the excruciatingly dull settler literature of that era. In Seeing Like a State , James Scott also attempts to answer the question of what impels the state to sedentarize its subjects. Similar elements are present to varying degrees in the Namibian situation. Rather than shallow knowledge leading to failure of high modernist projects, the Namibian colonial case clearly suggests the situation is more complicated: ignorance clearly has its virtues in governance as well.
Law commonly provides a symbolic arena in which ideas about history, property, and law itself are disputed. Indeed, as part of this pro- cess, the courts have disenfranchised the former judges and lawyers of the German Democratic Republic GDR.
Formerly powerful at the bench and bar, they are now faced with the challenge of defending their professional licenses and personal reputations. In the new German narrative, they have been placed in what Karl Llewellyn and E. Adamson Hoebel termed the crucible of litigation.
By interviewing GDR jurists, I collected their professional life stories and learned about their present situations. In the developments I explore in this essay, the nation enters the contro- versy over the ex-GDR jurists by systematically producing symbols and practices of delegitimation and exclusion. The re constitution of the German nation as a single juridical and political entity—from the West German perspective at least—called for a thoroughgoing Delegiti- mierung delegitimation of the GDR. In doing so, the prosecuting authorities exploit the unique characteristics of German legal history from Weimar through the cold war.
No understanding of the power of these charges is possi- ble without a grasp of German jural history, that is, how it acts as a template for contemporary legal arguments. As noted, the western legal forum stands as an arena where opposed ideas of law are at times contested. Edward Thompson observes that a legal system that advertises itself as fair must in fact at least occasion- ally be fair It is not simply an expression of prevailing superstructure. Thirteen years later in , a fascist dictatorship assumed control, remaining in power until After , separate governments prevailed in the East and West—one socialist economically and dictatorial politically, the other capitalist economically and democratic politically see Schoeneburg — In the re- maining states, judges and prosecutors were for the most part allowed to hold their positions while retention was under formal consideration Hutt — Given these contrasting approaches, only a small number in East Berlin submitted themselves to the procedures set up for gaining acceptance, and only a small fraction of this group was even- tually retained for future service.
Even with goodwill the task would have been daunting; with- out it the results might be appalling. How could outsiders appropriately judge a legal culture they had never experienced? But change was everywhere. When presuppositions are torn away, destroyed, jumbled, or otherwise negated, the ability to grasp symbolic content, dependent on almost intuitive pre-understandings of context, is like- wise undermined or uprooted entirely. A small incident observed in in former East Berlin brought home how pervasive the invasion is felt to be. One morning a young clerk at the counter greeted a customer in the neighborhood bakery.
He asked for a certain pastry but drew only a blank expression. He then gestured toward the desired item in the display case. Major shifts of power dominated the landscape, producing a demand for replacement of an entire value system: from party centralism to elective bodies; from a socialist to a capitalist economy; from pressures favoring collectivism to those promoting individualism, and so forth. Several pervasive crises have recently emerged in the East, provoking humiliation and shock over 1 the depth and extent to which corrupt governmental practices existed in the state-party, 2 the breadth and abuses of the informer system, 3 the extent of privileges accorded party leaders, and 4 the despoliation of the environment by expedient agricultural and mining practices.
In the East, after a period of initial optimism, the shock of economic disillusionment quickly appeared. Years of exposure to scenes in telecasts from the West depicting lives of comfort and luxury compared to those on the other side of the Wall whetted this expectation. Instead of prosperity, unemploy- ment ravaged families, hitting women especially hard. An immediate consequence was the gradual eclipsing of the Christian Democratic Union cdu in almost every election in the East after December , when Helmut Kohl had man- aged to retain his chancellorship on the strength of promises of easy union and economic reward.
Scarcity brought modest aims. Goals were realistic. The former jurists of the GDR were not immune to these pressures, compounding their distress. Along with family members, they faced the prospect of unemployment. Like many others they succumbed to the blandishments of high-pressure salesmen. And, their teenagers began to adopt what they saw as the jarring clothes, hair, and music fashions of West Berlin youth. Men and women from the highest echelons of GDR law faculties were reduced to mere assistants. Prosecutions against.
Moreover, whether or not a former judge or prosecutor was actually a defendant or target of an investiga- tion, the charges tainted the entire GDR legal profession. A historical backdrop is needed to appreciate the Rechtsbeugung accusation. After World War II in West Germany, the majority of jurists who served during the Nazi era were either reinstalled as judges or allowed to pursue careers as lawyers. After the founding of the GDR in , legal careers entailed three to four years of specialized education the Studium , followed by several addi- tional years as assistant judges and prosecutors usually somewhere out- side Berlin , involvement with one or more legal-professional organiza- tions, advancement through the ranks of government assignments, and so forth—all in a formal manner not unlike the modern profession as it has developed from the mid-nineteenth century in most other European.
Naturally, assaults on long-established, prestigious careers produced widespread devastation among a majority of those judges and lawyers. This was less the case for younger mem- bers, but they too commonly expressed deep resentments about their treatment. Almost daily exposure to sensational accusations against lawyers and judges aggravated the uncertainty about future income and loss of stat- ure.
The answer is complex since both continuities and discontinuities predominate. Immediately after the Wende, that is, during the period between the fall of the Wall in November until mid, there was a prevailing belief—ultimately quite quixotic—that the union of the two German polities would include at least a partial melding of legal histo- ries and ideas, a Rechtsangleichung legal adjustment. That expectation is traceable in part to East-West exchanges taking place during the Willy Brandt-inspired Ostpolitik Eastern Policy initiated in the early s and sustained by each of his successors.
Deep disappointment—even betrayal—stands forth, especially among legal scholars who had been warmly greeted in the s when they were members of delegations in touch with Western jurists including West Germans. In that context,. A time of confusion followed. Anyone whose name reached the public nearly always faced calami- tous prospects.
Teachers lost positions, lawyers were disbarred, diplo- mats were sacked, and politicians were humiliated. In their eyes,. Professional dispossession involved more than personal costs. Pol- iticians most likely to provide continuity of leadership in the East have faced enormous roadblocks. Manfred Stolpe is a case in point.
Stolpe had been elected prime minister of Brandenburg as a Social Democrat on the strength of his legal representation of the Protestant opposition in the time of the GDR. By early , his reputation had fallen under a pall of suspicion. Stolpe denied the im appellation, declaring that any listings credited to him had been made without his knowledge. In the foreword to a book coauthored with Riege, Uwe-Jens Heuer sets out a portion of the last letter his friend and colleague wrote before Riege took his own life:.
It has been taken from me under the new freedom. I fear the publicity that the media will pro- duce and against which I cannot defend myself. I fear the hatred which will be lashed upon me in the Bundestag from the mouths, eyes, and attitudes of people, who perhaps never imagine how im- moral and merciless is the system to which they have devoted them- selves. Heuer and Riege Though the Federal Republic was ill equipped to sustain such a costly remedy that eventually produced widespread resentment among tax- payers in the western states, the Bundestag considered premature retire- ment preferable to the chaos anticipated when tens of thousands of GDR enterprises began closing their doors.
And even this victory faced another review and additional legislative hurdles Berliner Zeitung a. After 3 October , with but a single exception concerning the conditions permitting early pregnancy termination, the statutory law of the FRG replaced that of the GDR. The false starts seen in the expectation of a Rechtsangleichung, followed by tran- sitory concern over the need for Vergangenheitsbewaeltigung, expose the vulnerability of the GDR jurists. The three generations of GDR lawyers and judges in a sense recapitulate the phases of German national development.
Generation 1 was dom- inated by personal awareness of the horrors of World War II, a knowl- edge of Nazi atrocities, and the experiences of the cold war—in particu- lar, the repressions directed against the adherents of communism in the West, the intensities of the U.
Now, using eastern surrogates, the West seeks to atone for its acceptance of jurists with Nazi histories. The number of judges accused of Rechtsbeugung from Generation 2 does not yet match those criminally charged from Generation 1. Law professors, those with ex- pertise in socialist statutory schema of all types, however, were heavily represented in Generation 2. This generation has thus been hit hard by faculty expulsions and also has been rejected while pursuing the con- tinuation of judicial careers.
The last of the three legal generations in the East, trained after the advent of Ostpolitik and the Basic Treaties between the FRG and the GDR in , was the generation with the least investment in combating the Nazi past, and the one that chafed most under the yoke of sed authority over judicial administration. Before the end of the GDR, this generation no longer troubled itself with strident demands for prosecution of aged Nazis in the West.
The post-Wende discursive habitus of the GDR jurist has been ruled by the rationales for the actions taken against them.