This chapter picks up where the previous chapter left off. It demonstrates the difference that law, in particular South Africa's legal tradition, made in apartheid's endgame. And yet, as Edwin Cameron, a judge on the South African Supreme Court of Appeal, reminds us, “The survival of law and legal regulation in [South Africa] can by no means simply be assumed.”

LAW AS TRADITION

A legal tradition connotes “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.” South Africa's legal tradition – this ideology of law – is an underappreciated factor in the country's transition to democracy (see also Figure 3.2). I have argued, throughout this book, that choices about cooperation and confrontation in democratization are crucially affected by the presence, or absence, as well as the nature of a legal tradition in newly democratizing countries. I believe that legal traditions, or legal ideologies, provide shared mental models that can, under the conditions specified in this book, help overcome uncertainty and bargaining predicaments. For as we saw Denzau and North claim in Chapter 2,

In the previous chapter, I discussed the seven stages of state formation in South Africa, and their bearing on the evolution of the dual state. This chapter investigates the effects of the dual apartheid state. As the historical overview has demonstrated, successive governments blended legalism and coercion in South Africa, first in the making of segregation, and later in the making of apartheid. These governments used – often concurrently – reason with force, and force without reason.

A DUAL STATE

Dullah Omar, Minister of Justice in the first post-apartheid government, has described the institutional dispensation of the apartheid state as a “dual political system of a parliamentary democracy for whites and a dictatorship for blacks.” Legal scholars Kennedy and Schlossberg speak of “executive despotism” in South Africa, which they contend was exercised “side by side” with the “trappings” of parliamentary government. The following discussion traces the institutional effects of this schizophrenic institutional structure – this dual state – for politics and society.

While the normative state occasionally won out over the prerogative state in the years of segregation, the ratio of reason to force began to tilt steadily in favor of the latter when segregation became apartheid. The militarization of politics under President Botha (see discussion of Stage VII in the previous chapter) was the last, and most dramatic, stage of this transformation.

THE PREROGATIVE STATE

My analysis of the effects of the prerogative apartheid state is organized around four themes: discrimination, fear, destruction, and death.

This chapter sums up. It briefly recapitulates the argument and evidence (the legacies of law). Then the chapter derives implications for the study of institutions, reflecting on the contending new institutionalisms in law and the social sciences, and elucidates the significance of my findings for the theory of democracy (the lessons of law). In this book I have argued, and tried to demonstrate, that

Or, to paraphrase E. P. Thompson, I believe that the rhetoric and rules of law are “something a great deal more than sham.” In pursuit of this proposition I have revisited and reconfigured a theory of law developed by the German émigré Ernst Fraenkel for whom the United States, in the late 1930s, became a safe haven from the Nazi dictatorship.

On September 20, 1938, Ernst Fraenkel, a German labor lawyer and social democrat, fled the Nazi dictatorship. From his exile in the United States, he published The Dual State: A Contribution to the Theory of Dictatorship in 1941. The Dual State remains one of the most important books on the origins of authoritarianism and totalitarianism. It constitutes the first comprehensive analysis of the rise and nature of National Socialism, and remains the only such analysis completed within the belly of the behemoth.

Ernst Fraenkel conceived, and secretly wrote, most of what became The Dual State in the Berlin of the mid- and late 1930s. The concept of the dual state first found its way into print in 1937 in a series of articles that Fraenkel wrote under the pseudonym “Conrad Jürgens” for the Sozialistische Warte, the periodical of the Internationaler Sozialistischer Kampfbund. The articles chronicled the breakdown of democracy and the rise of dictatorship in Weimar Germany. The articles quickly turned into a clandestine manuscript. The draft book, written in German, found its way to the United States via France by way of a French embassy official. The official hid this Urdoppelstaat in his luggage upon leaving Germany in the late 1930s – thus securing the work's survival.

I happened upon the subject matter of this book – the function of law in times of transition – about a decade ago. I was rereading at the time, for no particular reason at all, Ernst Fraenkel's The Dual State: A Contribution to the Theory of Dictatorship (New York: Oxford University Press, 1941), a highly original yet largely forgotten study of the law of the “Third Reich.” Written by a German labor lawyer of Jewish faith, The Dual State remains one of the most absorbing books – drafted clandestinely in the mid-1930s – ever published in the public law tradition. It was this rereading of The Dual State that inspired my “redescription,” to borrow Ian Shapiro's term, of apartheid and apartheid's endgame.

I had first encountered Fraenkel – alongside Max Weber and Carl Schmitt – in the early 1990s, as a first-year student of law as well as political science and sociology in my native Germany. I was intrigued by the provocative argument contained in The Dual State and its lucid elaboration. I marveled at the effortless blend of insights from numerous disciplines and its deep grounding in the jurisprudence of Weimar Germany. At the time, however, I was preoccupied with comprehending the minutiae of constitutional law in the Federal Republic of Germany rather than the discredited legal theory and practice of the regimes – authoritarian and totalitarian – that had preceded it.

This chapter shows that the apartheid state was, in an important respect, necessary for making democracy work. The analysis finds a path-dependent relationship between law and politics. I explain why the dual state from the past, as explicated in Chapters 4 and 5, was a usable state in the present of apartheid's endgame. I show how the ultimate logic of apartheid's endgame was structured by this state. The state mattered both as an idea and an institutional structure. The apartheid state – qua law – provided the possibility of, and potential for, the kind of action that could move interacting adversaries away from confrontation, toward cooperation. From the perspective of the longue durée, the dual state served apartheid, but it served democracy as well. In what follows, I focus on legal norms and institutions. As we shall see, as specific legacies of liberalism, these legal norms and institutions facilitated – in crucial and unexpected ways – the resolution of apartheid's endgame.

FROM CRISIS TO ENDGAME

Before the endgame there was crisis. Apartheid's government under P. W. Botha experienced a number of serious shocks to the country's racial edifice that together pushed the regime toward exhaustion. Three shocks in particular contributed to apartheid's crisis: (1) the collapse of the Portuguese empire in southern Africa; (2) the economic downturn and the u-turn in investment; and (3) the mounting resistance and insurrection in the country's townships. Interaction effects among these shocks plunged the apartheid regime into disarray.