The Legacies of Law

Long-Run Consequences of Legal Development in South Africa, 1652–2000

The Legacies of Law

This highly original book examines the function of legal norms and institutions in the transition to – and from – apartheid. It sheds light on the neglected relationship between path dependence and the law. The Legacies of Law demonstrates that legal norms and institutions, even illiberal ones, can have an important – and hitherto undertheorized – structuring effect on democratic transitions.
Focusing on South Africa during the period 1650–2000, Jens Meierhenrich finds that under certain conditions, law reduces uncertainty in democratization by invoking common cultural backgrounds and experiences. Synthesizing insights from law, political science, economics, sociology, history, and philosophy, he offers an innovative “redescription” of both apartheid and apartheid’s endgame.
The Legacies of Law demonstrates that in instances in which interacting adversaries share qua law reasonably convergent mental models, transitions from authoritarian rule are less intractable. Meierhenrich’s careful longitudinal analysis of the evolution of law –and its effects –in South Africa, compared with a short study of Chile from 1830 to 1990, shows how, and when, legal norms and institutions serve as historical parameters to both democratic and undemocratic rule.
By so doing, The Legacies of Law contributes new and unexpected insights –both theoretical and applied –to contemporary debates about democracy and the rule of law. Among other things, Meierhenrich significantly advances our understanding of “hybrid regimes” in the international system and generates important policy-relevant insights into the politics of law and courts in authoritarian regimes.


“South Africa’s peaceful transition from apartheid to democracy has surprised many observers. In an innovative approach to this topic, Professor Jens Meierhenrich argues that existing legal norms and institutions have important structuring effects on transitions to democracy. He identifies the dichotomy between apartheid law’s rational formalism and its irrational substance and asserts that this body of law ‘was, in an important respect, necessary for making democracy work’. […] The Legacies of Law offers an important account of the end of apartheid and expands the lessons of that experience to broader issues of democratization.”
Harvard Law Review

“Meierhenrich’s work provides an impressive synthesis of scholarly research on authoritarian transitions generally and dismantling of apartheid in particular.… [T]he work provides a strong historical and legal framework within which to understand how fundamentally illegitimate systems can function and ultimately even further the democratic process.”
Law and Politics Book Review

“Meierhenrich’s study is widely recognized by many specialists as an exceptional analysis of legal development in South Africa’s democratization process since the mid-1600s, with emphasis on the apartheid era. […] His careful--and unique--methodology creates a complex but useful analysis of South Africa’s transition to democracy. […] [T]he beneficiaries of this intellectually sophisticated analysis are primarily sophisticated scholars.…Summing Up: Highly recommended.”

“Jens Meierhenrich has written a wonderfully ambitious, challenging book. It is, at once, a sweeping, quite original history of the role of legalities in the troubled South African past and a provocative conceptual work that lays the foundation for a theory of democracy rooted in the rule/s of law. An impressively erudite, transdisciplinary study – one with broad comparative relevance – it will have a major impact on scholarship in law and society. Everywhere.”
-John Comaroff, University of Chicago, American Bar Foundation

“In a highly scholarly work that draws heavily on South African case law, legislation and legal literature, Jens Meierhenrich explores a contradiction in the South African apartheid state that informed South African jurisprudential discourse during the apartheid era. On the one hand, the apartheid regime invoked law as an instrument to impose and justify racial discrimination and political repression, but on the other hand it allowed relatively independent courts to administer justice in accordance with the enlightened values of the common law, a mix of English and Roman-Dutch law. Meierhenrich explains this contradiction in terms of a conflict between a prerogative state, which shows little respect for the rule of law, and a normative state, which respects the rule of law. His thesis, with wide philosophical underpinnings, provides a satisfactory explanation for the fact that when South Africa became a democracy in 1994 it was able to draw on its normative heritage in order to construct a model constitutional order.”
-John Dugard, Leiden University

“This is a highly original and unusual book. In it the author analyzes the legal institutions that played a role in the history of racism in South Africa from 1652 to 2000. It is directed to help explain the role of law in South Africa’s extraordinary transition from Apartheid to democracy. It makes fascinating reading for anyone interested in the manner in which law plays a role in social transformation.”
-Richard Goldstone, former Justice of the Constitutional Court of South Africa

“Up to a few years ago most political scientists who studied law and courts knew nothing about comparative politics and most students of comparative politics knew nothing about law and courts. Now no student of either can afford to ignore the other. This book is central evidence for that proposition, essential reading for people in both fields, and an enormous step forward in our understanding of the role of legal institutions in political development in general and democratization in particular.”
-Martin Shapiro, James W. and Isabel Coffroth Professor of Law, University of California, Berkeley

“Drawing on Ernst Fraenkel’s idea that some states combine the normative force of legality with the arbitrariness of prerogative, Jens Meierhenrich’s examination of South Africa’s transition to democracy illuminates fundamental questions about why – and, more important, how – the law’s traditions can contribute to democratic stabilization even under apparently unfavorable conditions. More than an insightful analysis of an important case, this provocative work makes an important contribution to the theory of constitutional design.”
-Mark Tushnet, Harvard Law School

“In this provocative work, Jens Meierhenrich argues that the dual nature of the apartheid state – its combination of legalistic with repressive institutions – was essential to South Africa’s transition to democracy. In showing how common legal traditions helped transform confrontation to cooperation, he sets a compelling research agenda for some time to come.”
-Elisabeth Jean Wood, Yale University

“Meierhenrich provides a compelling interpretation of the South African transition to full democracy. His argument is beyond doubt a major contribution to our understanding of this remarkable historical moment.”
-Crawford Young, University of Wisconsin, Madison

“Social scientists stand on the shoulders of others in their field, but rarely have others tried what Jens Meierhenrich attempts: he utilizes a forgotten 1941 analysis of Weimar and Nazi Germany, Ernst Fraenkel’s The Dual State (Oxford University Press), to conceptualize the role of law in South Africa’s transition to democracy. […] Meierhenrich’s analysis […] draws on insights from game theory, political science, psychology, and history to build a case that trust in the law was crucial to the resolution of apartheid’s endgame […]. The analysis is thorough, but the author also goes the extra step in applying his findings, in a ‘plausibility probe,’ to the democratic transition in Chile. […] The Legacies of Law is well documented. […] [T]he author is able to comfortably weave together insights from various disciplines supporting his analysis. This book is required reading not only for those interested in South African law or the demise of apartheid, but also for students of democractization.”
African Studies Review

“Jens Meierhenrich has written a thoughtful account of the role, status, and effects of law, an account that spans the legal history of South Africa, including the colonial period, the construction of the apartheid state, the period of political and legal transition, and the creation of the constitutional democracy post-1994. [...] In this endeavor, he enlists an interdisciplinary methodology, utilizing perspectives from economics, political science, philosophy, history, sociology, and, of course, law. [...] His exploration of Fraenkel’s dual-state theory and its application in South Africa is particularly compelling [...]. [...] This book is well written and Meierhenrich makes his arguments seamlessly. His bibliography is impressive, and his access to key legal and political figures in the South African political and legal transition is apparent. He has a good grasp of law’s role both to thwart and to generate justice, and his application of Fraenkel’s theory is persuasive. [...] [The Legacies of Law] will be of great interest to scholars, advocates, and policy-makers in a range of disciplines, including law, politics, history, philosophy, and economic history.”
Journal of African History


Woodrow Wilson Foundation Award, American Political Science Association 2009 - Winner