Law As Social Control in South Africa

-- By AnneSteinberg - 16 Feb 2012

Introduction

As a future lawyer, I first struggled with the assertion that law is a weak form of social control. This concept initially appeared contradictory to instances I could think of where law was a tool used to create social change—for better or worse. In particular, I thought of apartheid-era South Africa, where the segregationist government used laws to oppress the black majority. Considering the dramatic social effects of apartheid, it appeared that law in that case was a dramatically effective form of social control. However, in light of the argument that the law is a weak force, I sought to reconsider the role the law played during and after apartheid in South Africa. While apartheid law played an important role in controlling the population in South Africa, it is better categorized as a tool rather than a force. Control of physical space is one of the strongest forces that controlled the black majority. Law acted as an extension or legitimization of this force—rather than the social force at work. Consequently, law has been marginally effective in reversing the effects of segregation in the post-apartheid era.

Law in the Apartheid Era

One of the most dramatic laws passed during the apartheid era was the Group Areas Act. The main goal of the Group Areas Act was to reduce contact between the races, which under apartheid justification was meant to reduce conflict, but in reality was used as a way to use space and segregation as a mean of social control. Per the Group Areas Act, housing, education, most employment and social contact was limited to mono-racial groups. Segregating the racial groups into specific areas allowed the government to control almost every portion of the black majority’s lives. Apartheid laws even went so far as to restrict the number of black servants to five per block, and to adopt a “White by Night” policy, in which non-authorized blacks were not permitted to be within certain areas during night hours. The government even passed laws establishing separate bus lines for whites and non-whites.

The result of the Group Areas Act and other apartheid laws was a massive spatial reordering of the urban population. Blacks were effectively removed from urban centers, and the government annexed land for white-only use. Entire urban neighborhoods were demolished to make way for newer white suburbs. As a result of this law, almost one million blacks migrated to native-only townships, cut off from economic opportunity.

The effects of the Group Areas Act were dramatic, but characterizing the law as the singular method of social control here is simplistic. In reality, the apartheid laws enabled the government to effectively control physical space. The restriction and constant upheaval of physical space deprived blacks of economic opportunity and the ability to effectively organize against apartheid. This allowed the white minority to maintain economic superiority over the much larger black population. This spatial reorganization has created the lasting and damaging effects still seen today. The patterns of the reorganization under apartheid are still clear; eight million people live in racially segregated slums that grew in the place of the townships created under the Group Areas Act.

Post-Apartheid Reform

Despite the abolishment of apartheid laws, active legislation promoting ideals of human rights, and a constitution focused on equality, the effects of the apartheid era have hardly been reversed. Since the end of apartheid in the city, housing and other spatial discrimination has been outlawed. In an ideal situation, the abolishment of legal urban segregation and pro-human rights laws would lead to the development of a more racially integrated and equitably developed cities. However, in the decades following the end of apartheid, South African cities continue to be extremely racially segregated.

If apartheid era laws were so effective at creating dramatic social control and change, why then has the post apartheid system failed to make a similar impact? This observation is evidence for the idea that law is a weak form of social control when it is not used in conjunction (or when it is in opposition) with other stronger forces. The post-apartheid government (ANC) has had little incentive to place stronger forces behind the new laws that would be necessarily to ensure their effectiveness. In fact, the government has specific economic incentives to maintain the social and economic system in place. The nearly unlimited supply of cheap labor assists big businesses and protects the economy from competition from international labor markets. Furthermore, the government avoids costly housing and social programs by leaving apartheid relief to the free-market—a policy that is reflective of South Africa’s turn to neoliberal fiscal austerity. Finally, maintaining elements of the social control implemented by apartheid allows the government to protect itself from social uprising.

Legal changes in South Africa have had little effect because legal reform is in opposition to much stronger social forces, particularly economic incentives for the ruling minority. It no surprise then that many activist groups have rejected the use of legal reform as an appropriate means for creating change. The Shackdwellers movement, for example, has actively rejected the usefulness of legal help and legal reform. Instead, they prefer to work with stronger methods of social change such as land occupation and creating non-capitalist micro-economies. This movement has recognized that fighting against the social forces of economic incentives and spatial control requires action in similar forces. Thus to the Shackdwellers movement, legal reform is a secondary goal.

How can a single historical example provide any insight into whether governmental social control is strong or weak compared to other forces shaping behavior, like family, religion, or table manners?

Why is a simple sociological cliche (that human social organization pre-existed the state, and can cohere despite the weakness of governmental organization) being "tested" in relation to the observation that a government which refrains from attempting forcible redistribution of land will not redistribute the land?

I think the first step is to establish the central idea. So far, I read it as: "South Africa remains a highly racially-segregated society because apartheid used state power (through the Group Areas Act and other legislation) to enforce physical separation. Post-apartheid government rests on the cooperation of the white owning class, which will be withdrawn if redistribution destroys the ability of the white rich to live apart from the black poor." This seems to me evidently true, but not new. I have a hard time locating your idea in its midst. That the idea speaks at all to the actual limits of state power is not apparent to me. Your words imply, surely correctly, that the government presently ruling has no interest in the full application of state power, even less interest than the Nationalist governments that constructed the bantustans. Nationalism used as much state power to create and maintain apartheid as could be brought to bear under local circumstances; it is apparent to all of us that ANC government observes far stricter limits, in the interest of maintaining the fragile social consensus between the tiny owning class and everyone else. (In this regard it is not very different from the present US government, which conciliates the aristocracy that owns nearly half the country's wealth and has appropriated nearly all the last decade's income gains, while claiming to govern in the interest of the other 99%.) But if these are political decisions made for locally persuasive reasons, the results give us little or no insight into the actual limits of power's effect when fully employed.