Henry Maine observed that ‘sometimes the Past is the Present; much more often it is removed from it by varying distances, which, however, cannot be estimated or expressed chronologically’ (quoted in Cocks 1988: 204). In the period of the reconstruction of the South African state the time of its first making is, in spite of the decisive break with the past, in many ways closer than the chronologically more recent years of its disintegration. While recent analyses of the dilemmas facing South African law have, understandably, focused on the recent past and the present, I offer in this book a different perspective, one based on a consideration of South African law as a part of the construction of the state. The premises on which the state is now being reconstructed are dramatically different, yet the problems are hauntingly similar. Establishing ‘law and order’ was a primary issue then as it is now; the relationship between white and African common laws remains to be resolved; differential land-tenure regimes have not faded away; and now a new global context, as empire did then, profoundly shapes the constitutional framework and also restricts local solutions to the relationships of law and market. Perhaps above all the wide gulf between the ambitions of the state and its capacities is still present. The differences are profound. With the end of racist rule and the expansion of political democracy the state is no longer in a potential state of war with most of its inhabitants.