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LAW, CULTURE

AND
THE HUMANITIES

Article

Legal Judgment and Cape


Colonial Law

Law, Culture and the Humanities


8(2) 207218
The Author(s) 2010
Reprints and permission: sagepub.
co.uk/journalsPermissions.nav
DOI: 10.1177/1743872110378707
lch.sagepub.com

George Pavlich

University of Alberta, Edmonton

Abstract
Judgment is a complex matter, with particular nuances in the context of juridical decision-making.
The following commentary explores legal judgment at a particular juncture via a Cape colonial
case in 1798 and through Foucaults often overlooked essay, Truth and Juridical Forms. Noting
the legacy of the test and the inquiry as knowledge formations that have significantly influenced
judgment in European and colonial law, this discussion highlights how legal judgment might usefully
be viewed as a shifting product of local and wider power-knowledge formations. Viewing a Cape
record at some historical distance enables one to see colonial legal judgment as a process of its
time and place. It also enables a more general, if admittedly exploratory, comment on judgment
as an authorized, violent process that cuts and countersigns itself through complex transcriptions.
As well, a performative contradiction attaches indecision to the heart of legal decisions, thereby
disabling apodictic judgments and intimating a potential escape from totalitarian judgmental systems.

Keywords
Foucault and law; Cape colonial justice; postcolonial law; legal history and judgment; socio-legal
studies

Consider the following record indicating a juridical process, justification, judgment and
outcome of a case recorded at the Cape of Good Hope on March 29, 1798:
The Honorable Court of Justice aforesaid having, therefore, attentively read, and Considered
the Written Criminal demand exhibited, and motion made by and from the Landdrost of the
Colony of the Stellenbosch and Drakensteyn Mr. Johannes van den Riet, nomine officie, against
the Prisoners, and having also attended to the Prisoners voluntary Confession and to allwat
further was relative to the cause, and able to cause them to move Doing Justice from and in the
name of His Brittannic Majesty has condemned the Prisoners, so as their Worships do condemn

Corresponding author:
George Pavlich, Department of Sociology, University of Alberta, 618 Tory Building, Edmonton, Alberta,
Canada T6G 2H4.
Email: gpavlich@ualberta.ca

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the same by these presents, the 1st Prisoner to be conducted to the place where criminal
sentences are usually executed, and there, being delivered to the Executioner to be tied to a
stake & severely whipt on the bare back, the 2nd Martinus, in consideration of his Youth, to be
chastised within Doors, with rods on the bare buttocks with Condemnation of the Prisoners into
the costs and fees of Justice and rejecting of the further Demand of the Fiscal.1

The Court of Justice proclaimed this judgment as the conclusion to events described in
the exhibited papers of the Law suit against Claas and Martinus, two indigenous Khoi
people estimated to be 30 and 12 years old respectively, for twice illicitly consuming
wine from the cave storeroom of the Burgher van Blignaute, in the Roggeveld. On
the first occasion, they were apparently assisted by a slave named Onverwacht, but
on the second they broke into the cave with a cowhorn and after drinking, Copiously
of the wine they got intoxicated and lay in the field. Upon returning to Franschhoek,
they had been apprehended by the Burgher Jacobus Blignaulte and delivered into the
power of Justice. That power concisely defined its sense of these infractions as follows:
Now whereas such offences are not to be tolerated in a Country where Justice and Law are duly
enforced but on the contrary for the maintenance of good order and for an example to others,
ought Severely to be punished.

The recorded text suggests several distinctive legal procedures framing the judgment:
Jacobus Blignaultes apprehension and delivery of Claas and Martinus to the power of
justice; written depositions verified through unique practices of translating spoken words
into legally acceptable texts (evidence); voluntary confessions from prisoners considered
commonplace not as a means to short-circuit, but as a basic element of, legal inquiry;
young people differentiated for purposes of punishment only; the specified roles of the
nomine officie, a landrost who formally prepared a written case and the fiscal who presented
the text to members of a Court (a committee rather than a single judge); a council of
respected but not representative citizens named the Court of Justice who collectively
examined and judged the fiscals (prosecutor) written case; and, a judgment read aloud
from a public place. It is worth noting too that while this judgment does largely accept the
fiscals case, it also rejects the further Demand of the Fiscal (which is not specified in the
above document but probably referred to other suggested fines/punishments). Distanced
from current meaning horizons, this Cape case highlights a particular sort of background
knowledge that informed what was then considered to be legitimate legal judgment.
Understanding the genealogy of such knowledge, even if in outline and with reference to
only one illustrative example, casts some light on several distinctive elements of specifically
legal (as opposed to say moral, scientific, aesthetic) judgment.2
With this in mind, I offer the following commentary as a preliminary exegesis rather
than a fully-fledged argument. It begins with a discussion of Foucaults intriguing, if less
1. Court of Justice Records, (1798). The Case of Claas and Martinus, Western Province Archives,
CJ 797 [p329ff] all case quotations refer to this source.
2. See William Rasch, Judgment: The Emergence of Legal Norms, Cultural Critique (2004),
57, pp. 93103.

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well known, lecture Truth and Juridical Forms, in an attempt to help frame a broad
approach to the colonial setting in which the Claas/Martinus case unfolds.3 In particular,
his lecture points us to the underlying regimes of truth that claim particular types of
legal judgment as uniquely authoritative and legitimate. Not unlike his use of prominent
examples (e.g., Benthams panopticon) to elucidate wider phenomena (modern discipline),
viewing the former as paradigmatic of the latter,4 the lectures point to knowledge associated with historical instances of juridical judgment. The test, inquiry and discipline appear
as exemplars for various regimes of truth that license specific techniques of legal judgment. Using Foucault to conceptualize legal judgment in a Cape colonial case allows one
to allude to discourses that in 1798 rendered judicial decisions meaningful, practicable and
authoritative. Following from that discussion, what implications even if speculatively
declared might one discern for the general phenomenon of legal judgment?

I. A Genealogy of Legal Judgment:Test, Inquiry and Discipline


In his lecture, Foucault refers to a truth regime that nurtured early Greek juridical processes, focussing on the well-known dispute between Antilochus and Menelaus in
Homers Iliad.5 As participants in a chariot race of the games marking Patroclus death,
they contended for first place, completing a circuit with a sharp turn around a post in the
back-run, where a man was stationed as a witness (histor). Antilochus crossed the line
first, but an indignant Menelaus accuses him of a foul at the post, challenging him to
swear an oath by Zeus that he did not cheat. Antilochus refuses to take this challenge, and
thereby invites the judgment that he did commit a foul and so must forfeit the race. As
Foucault observes,
this is a peculiar way to produce truth, to establish juridical truth not through the testimony of
a witness but through a sort of testing game, a challenge hurled by one adversary at another.6

Immersed in such a truth regime, Menelaus does not call upon the testimony of the witnesses, judges, or invoke an inquiry for a decision; instead, he simply leaves it up to the
fate of a challenge as the proper and legitimate way to decide the truth of the matter.
Foucault astutely highlights several features of such test-based judgments.7 First, the
test is specific, directed as it is to resolving a particular matter and indicating a very limited truth. Secondly, the evidence of the witness, despite the name given to the chariot
race official, is conspicuously absent. Moreover, no neutral, third-party judge is asked to
3. Michel Foucault, Truth and Juridical Forms in Essential Works of Michel Foucault: Power
Vol 3, ed. James Faubion (New York: The New Press, 2000), pp 189.
4. Giorgio Agamben, What is a Paradigm? Lecture, August, 2002. (Available at http://www.
egs.edu/faculty/giorgio-agamben/articles/what-is-a-paradigm/). Visited January 20, 2010. See
also, Alessandro Ferrara, The Force of Example: Explorations in the Paradigm of Judgment
(New York: Columbia University Press, 2008), especially chapter 1.
5. See Foucault, p. 17.
6. Foucault, p. 18.
7. Foucault, pp. 379.

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make a decision; a powerful, authorizing third-party serves only to verify that the rules
of the test were strictly followed, allowing the test itself to decide. Thirdly, on a related
note, the test takes a binary form an accusation is made, and the accused is required to
either accept or decline the challenge by swearing an oath. Declining is to concede
defeat. Finally, the test does not produce a complicated judgment; it is only a matter of
victory or defeat one of the disputants wins and the other loses.
Intriguingly, Homeric versions of test-based judgment reappeared in new guises
under feudal legal forms with the emergence of new tests: social tests (e.g. using twelve
witnesses to verify ones claims to innocence compurgation); verbal tests (requiring
prescribed formulas of what to say in response to an accusation); magical-religious tests
of oath (truth determined by belief-based rituals); and, corporeal or physical tests which
require people to endure a physical trauma.8 In all cases, legal judgment was predicated
on formally articulated tests, usually with deific countenance, that served as the basis for
deciding cases, and bringing disputes to a close.
Simultaneous with such forms of judgment, however, Foucault notes the emergence
of another model an inquiry-based judicial procedure. In Sophocles Antigone and
Electra, he detects,
the story of the process through which people took possession of the right to judge, or the right
to tell the truth, to set the truth against their own masters, to judge those who governed them.9

Over many centuries, several social figures materialized from the new juridical process
including the witness, the prosecutor and the judge. In early Greek contexts, the witness
first surfaced as an agent distinguished by nothing more than possessing knowledge
based on what he or she observed. Foucault refers to Oedipus the King, the second of
Sophocles Thebian plays, that describes changing legal procedures to investigate events
leading to the killing of King Laius. Sophocles, for instance, refers to a slave who is
called as a witness to do no more than tell the truth of what he saw. The evidence of this
humble witness is granted the potential to topple a king in an emerging, retroactively
orientated (rather than prophetic), juridical process. And Foucault argues that this process
would over centuries reverberate in Western judicial forms each time with contextual
adaptations and modifications.
In an admittedly broad sweep, Foucault focuses on the relative absence of judicial
power in the early Middle Ages, where disputes were mostly settled between victims and
the accused.10 By the later 12th Century, however, judicial procedures and patterns of
judgment had significantly transformed Roman law the very jurisprudence that the
Dutch East India Company (VOC) had adopted as the foundation of early Cape law.11
8. Foucault, pp. 378. See generally, William Andrews, Old-time Punishments (New York:
Dorset Press, 1890).
9. Foucault, p. 33.
10. Foucault, p. 41.
11. For example, see du Toit and Giliomee, pp 89110 and Wayne Dooling, Slavery, Emancipation
and Colonial Rule in South Africa (Scottsville: University of KwaZulu-Natal Press, 2007),
pp. 58111.

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One saw, for instance, the rise of new legal processes requiring individuals to submit
disputes to various forms of a judicial political power.12 Conceptions of such power
were developed by Montesquieu and others, promoting new images of executive, legislative, and judicial power practices that gained traction alongside the concentration
of economic wealth, military might and judicial power in the hands of a relative few. The
prosecutor now initiated judicial processes and, together with judges, authorized legal
agents as representatives of a sovereign power. That sovereign surfaced as an injured
party in all offences, and a radically new concept the infraction framed how
disputes between victim and accused were to be approached (i.e., a wrong or injury
was now conceived as an infraction against a given order, state, law, society,
sovereign). Here, as Foucault points out,
The guilty party was required not just to compensate for the offence he had committed against
another individual but also to compensate for the offence he committed against the sovereign,
the state, the law.13

In consequence one sees the rise of mechanisms such as fines, confiscation of property,
and the idea of vengeance as punishment.
This newer, inquiry-based, model of judgment, which Foucault describes as one of
the great moments of the history of the West emerged from the confluence of two
impetuses legal processes surrounding a flagrant offence in early Germanic law (a
rare process, evoked when someone was caught committing a criminal act, allowing the
offender to be brought directly before a sovereign representative), and an extrajudicial,
administrative model used in the Carolingian Empire.14 In the latter, a representative of
power was summoned to resolve a problem (of law, power, taxes, ownership) on behalf
of the sovereign. This process, the inquistio, or inquiry, required upstanding notables
from the community to investigate key issues of the problem by collating evidence from
knowledgeable persons who swore to tell the truth about the events all of which was
recorded.
Having assembled such information, representatives would deliberate, deliver a judgment and propose a solution to the defined problem. Although this administrative practice
declined in the centuries following, it continued to be used by the Church to manage its
property. For example, when travelling through their dioceses, bishops would initiate a
general inquisition (inquisitio generalis) that asked all knowledgeable notables in a community to reveal the truth about its state of affairs especially regarding transgressions
in the bishops absence. If specific infractions were noted, then a special inquisition
(inquisitio specialis) was deployed, to find out who had done what, in determining who
was really the author and what was the nature of the act.15 The dramatic spread of such
inquiries, Foucault notes,

12. Foucault, p. 42.


13. Foucault, p. 43.
14. Foucault, pp. 457.
15. Foucault, p. 46.

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completely reorganised all the judicial practices of the middle ages, the classical age, and even
those of the modern era (or they all reorganised themselves around it).16

Foucault identifies in this context a new juridical technology licensed by discourses that
posit an inquiry as the authoritative procedure for arriving at truthful judgment. Knowledge
about how to conduct an effective inquiry replaced versions of the test as the basis of
legitimate legal decision-making. Now, the prosecutor was to investigate infractions, or
wrongs against a sovereigns order (and not simply against the victim), and to yield the
fruits of that labor to another of the sovereigns representatives, the judge. The latter was
tasked with deciding whether the accused was guilty, and whether state compensation
was required. Interestingly, Foucault notes that the crises in medieval universities, partly
associated with fundamental challenges to test-based forms of knowledge like Alchemy
and Renaissance rhetoric, reflects a changing power-knowledge ethos that favoured new
inquiry-orientated forms of legal judgment. A growing acceptance of the inquiry in legal
contexts helped to usher in a new, way of authenticating truth, of acquiring and transmitting things that were regarded as true.17 Let us leave Foucaults analysis at the point
where it continues with a broader discussion of how inquiry-based judgment morphed
into one more explicitly framed around disciplinary power-knowledge; as important as
this matter may be, our Cape colonial moment (at the turn of the 19th century) was still
very much immersed within inquiry-based legal processes.

II.The Cape, Inquiry and Legal Judgment


One would be remiss not to mention the extraordinary political and legal context surrounding the Claas/Martinus case. It follows a succession from VOC governance of
almost 150 years (16521795) to a first British occupation (17951803),18 which would
later be followed by a brief Batavian Republic rule before a British re-occupation in
1806.19 By 1798, English common law traditions were deployed as part of a gradual,
evolutionary Anglicization of Dutch rule.20 In many ways, this case reflects important historical compromises that drew on both Roman-Dutch jurisprudence and English
common law traditions in an emerging, hybrid colonial approach still firmly anchored
in dominant inquiry-based regimes of truth.21 Our case thus tangibly incarnates the
16. Foucault, p. 49.
17. Foucault, p. 52.
18. Hermann Giliomee, Die Kaap Tydens die Eerste Britse Bewind, 17951803 (Cape Town:
Hollandsch Afrikaansche Uitgevers, 1975).
19. See generally, Hermann Giliomee and Bernard Mbenga (eds), New History of South Africa
(Cape Town: Tafelberg, 2007), Wayne Dooling, pp. 149 and Robert Ross, Beyond the Pale:
Essays on the History of Colonial South Africa (London: Wesleyan University Press, 1993),
pp. 15582.
20. The most comprehensive description of justice administration at the Cape remains Hilton Fine,
The Administration of Criminal Justice at the Cape of Good Hope 17951828 (PhD Thesis,
University of Cape Town, August 1991) see Chapter 1 for the Anglicization argument.
21. Fine, p. 215 and du Toit and Giliomee, pp. 10ff.

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far-reaching spread of inquiry-based juridical discourses that authorized specific legal


processes in the Cape.
As with Foucaults description of inquiry-based judgments of truth in Europe, Cape
legal judgment was framed around procedures that normally commenced with lay information and accusations presented to a legal agent (e.g., veldcornet, landrost, fiscal).
When handed to the power of justice, the prosecutors were required to assemble information and develop formal, written claims and conclusions to be judged by the Court
of Justice.22 From Roman-Dutch legal traditions (located in inquiry-based truth regimes),
they (landrost, fiscal) were required immediately upon receiving information about a
putative infraction to commence a process of inquiry.23 In Cape colonial versions of the
inquiry, these legal agents summoned and transcribed eyewitness statements or depositions from persons knowledgeable about relevant aspects of an alleged violation, in the
presence of two other witnesses. Deponents (except, revealingly, people of bondage)
were required to swear to the truth of their statements under oath, suggesting the continued, if modified, presence of the test. In any case, on the strength of such transcribed
truths, the prosecutor would summon the person accused of a crime to appear before
two delegates of the Court of Justice. At that initial meeting, the accused person would
be confronted directly with the evidence of witnesses in the form of questions requiring
yes/no responses24 a defining moment for many.
Although silhouetted against the first British occupation, the Claas/Martinus case still
reflects the influential legacy of Roman-Dutch procedures of inquiry.25 Most revealingly,
these procedures required that, an accused had to confess to his or her crime before
being found guilty.26 This explains, in part, why the records of most cases at the time
contain statements about the voluntary confessions of the accused. It is also worth
noting that only one year prior to our case, prosecutors could in certain circumstances
(i.e., the accused did not admit guilt in the face of contrary evidence) have applied to the
court of justice to extract voluntary confessions through torture. Even though this
practice was legally abolished in 1797,27 prosecutors continued to view voluntary confessions as crucial elements for strengthening their cases before bringing them to the
court.28 To repeat: such confessions did not short-circuit an inquiry, or render a court
hearing unnecessary; on the contrary, they were deemed, following Roman-Dutch
inquiry-based traditions, essential to presenting a legitimate case and claim of guilt.
However, the abolition of torture alongside the increasing influence of English common law gave new meaning to two previously established court processes: the more usual
extraordinary process, when someone confessed to a crime, and a rather less frequent
22. George Pavlich, The Lore of Criminal Accusation, Criminal Law and Philosophy (2007,
1:1), pp. 7997.
23. The following section has drawn on insights from Nigel Worden and Gerald Groenewald, Trials of Slavery (Cape Town: Van Riebeck Society, second series 36, 2005), pp. xxixxvii.
24. Fine, p. 230.
25. Fine, pp. 228ff and Worden and Groenewald, pp. xxiiixxiv.
26. Worden and Groenewald, p. xxiv.
27. du Toit and Giliomee, p. 91.
28. Fine, p. 215.

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ordinary process when such confessions were absent.29 Despite the confusing labels,
the ordinary process without the prospect of torture now required prosecutors to frame
their cases on verified witness testimony and other types of evidence (opening, no doubt,
the way for disciplinary influences scientific knowledge that Foucaults lecture also
references). By contrast, with the accuseds confession, the prosecutor (fiscal) proceeded
as before by writing up a logical case to be presented before the Court of Justice in the
form of a claim or demand (eijsch) summarizing the relevant evidence. Ideally, such summaries were presented in a syllogistic fashion, leading directly from evidentiary premises
to a conclusion (conclusie) of guilt, and a recommendation for appropriate punishment.
Whether these changes to court processes in themselves signal a stark shift from inquisitorial to accusatorial procedures is highly debatable. Regardless, in 1798, neither process aimed to establish an accused persons guilt beyond all reasonable doubt, based on
robust legal argument, physical evidence or scientific truth claims. Indeed, as Fine points
out, there was even precious little emphasis on public, legal argument: The sentences of
the court did not include the reasons for judgment,30 and were decided in a closed hearing
that relied heavily on absentee witness statements.31
Foucaults description of inquiry-based forms of legal judgment therefore may provide a more nuanced way to conceptualize the knowledge that at the time grounded
judicial processes and decisions in the Cape. With Claas/Martinus, for instance, various
powers of justice represented the colonial sovereign to collect depositions, information
and assemble a case for consideration by a court whose members were appointed by the
imperial or local sovereign (e.g., landrost, fiscal). The courts judgment was based mainly
on textual evidence articulated, collected and presented through formally specified ways,
and verified through a specific process; namely, depositions were initially recorded in
writing, but when assembling the case, testimony was verified by requiring witnesses
to re-appear before two deputized Court of Justice members. Here, their statements were
read back (gerecolleert), word by word, loudly and clearly,32 a procedure usually
conducted in the presence of the accused. Witnesses could revise preceding statements,
but both original and amended testimonies were included for the Courts consideration.
No unverified documents could be used during formal court proceedings.
From the brief record of the Court of Justices findings, one can only imagine the
setting: the terrified Martinus standing beside a nervous Claas, both cowering from the
haughty fiscal seated before the members of the court, presenting the claims and conclusion in a distinctive legal language. One might further imagine the court proceeding with
the prosecutor as eijscher (claimant or requirant petitioner), the two accused parties
and a secretary present. Both accused people could respond to the claims, followed by a
reply (relicq) from the prosecutor and then a response (duplicq) from them.33 With this
inquiry-based process, having heard such evidence, members of the Court would there
and then deliberate. What exact form the deliberations might have taken in Claas and
29. Fine, pp. 114 and 215.
30. Fine, p. 146.
31. See Benton, pp. 167ff.
32. Worden and Groenewald, pp. xxivxxv.
33. Worden and Groenewald, p. xxv.

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Martinus case is hard to say, but we are told that members of the court attentively read,
and Considered the Written Criminal demand exhibited, noted the accuseds confessions, considered allwat further was relative to the cause and then responded in the
affirmative to landrost Johannes van den Riets motion of guilt (with, as noted, some
restrictions). Moreover, that judgment would silence all further discussion and prescribe
sentences to resolve the infraction. The minutes of the process would usually be read
publicly from a balcony (De Kat) in a public place for all assembled below. Here one
might conjure the noisy bustle of a castle bailey quietening as the words of judgment
filled the enclosure, anticipating the violent corporal punishment to be unleashed on both
Claas and Martinus, and bringing the events described to sovereign closure through a
legal decision.

III. Possible Implications for the Broader Phenomenon of


Legal Judgment
Reflecting on both Foucaults insights and the Cape case at hand, what might be said
about the more general idea of legal judgment? There are, of course, many ways to
approach this phenomenon, especially in a colonial context that enforced imperial calculations of justice as supremely legitimate, and subordinated indigenous and other legal
computations.34 One could, say, usefully frame discussion around the injustice of colonial legal judgments silencing indigenous notions of justice,35 its relation to ethics, and
the continuing effects on postcolonial law.36 Equally, one might emphasize the patriarchal, racist and economically stratified exclusions and oppressions that the case reveals.37
Without detracting from such contributions, let us bring the commentary to a provisional
close with an admittedly speculative reflection on three further implications for legal
judgment that I would derive from the foregoing discussion of Foucault and the case.
First, the success of our late-18th century legal decision to conclude the events at hand
would depend on whether affected subjects accept it as legitimate, especially those with
political voice. Such legitimacy in the Cape context was as Foucaults essay enables
one to discern conditioned by older inquiry-based power-knowledge formations in
Europe, and the local colonial variations described above. In general terms, one might
say that legal judgment can only claim legitimacy by drawing on contextually specific
power-knowledge complexes that define how to discover and investigate legal truths,
and then to decide the matter justly.
34. For example, Lauren Benton, Law and Colonial Cultures: Legal regimes in World History,
14001900 (Cambridge: Cambridge University Press, 2002), and Achille Mbembe, On the
Postcolony (Berkeley: University of California Press, 2001).
35. Andre du Toit and Hermann Giliomee, Afrikaner Political Thought, vol I, 17801850 (Cape
Town: David Phillip, 1983), pp. 78126.
36. Jean Comaroff and John Comaroff (eds), Law and Disorder in the Postcolony (Chicago:
Chicago University Press, 2006).
37. Ruth Pierson and Nupur Chaudhuri (eds), Nation, Empire and Colony: Historicizing Race and
Gender (Bloomington: University of Indiana Press, 1998).

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So, as noted, the Cape courts judgment of guilt rests on a regime of truth that sanctions various inquiry-based procedures to arrive at a definitive legal judgment. For example, echoing European models of inquiry, the Cape case emphasizes the written evidence
of witnesses, translating spoken words through careful rituals of oath taking, receiving
depositions and verifying evidence for the Courts inquiry-based judgment. If the oaths
of Homers test appear embedded in such processes, the emphasis on verification is
revealing. What does it mean to regard a statement in evidence as more reliable (true?) if
it is read back to a deposer? Such truth tests, rituals, were meant to provide secure foundations for subsequent legal decisions, but they are best considered within the context of
particular truth-producing, inquiry processes that translate apperception; from memory
to spoken words to written document (deposition) that is then read back (gerecolleert)
and countersigned. The document so prepared is interpreted by judges, abstracted and
framed into a judgment with the backing of force; it must thereby halt interpretation and
authoritatively silence further discourse.
The layering of such historical knowledge produced hybrid images, forms and technologies of legitimate judgment. Culbert38 comes at this issue differently, through
Nietzsche, and by noting that legal judgment entails a unique, if curious, experience, that
is never authorized by an eternal, absolute, immutable ideal, or a correct decision:
validity is not a function of the judgments correctness or correspondence to the real world but
it is, instead, an effect of its own virtu, that is to say, its prowess or bold and apposite vitality.39

Thus one might refer to the virtu of the Cape courts decision, shaped as it was by both
immediate and wider social-political forces. If the local power-knowledge relations that
surfaced behind the closed doors of the Court of Justice produced local legal judgments, one
cannot discount the influence of Roman-Dutch jurists broader inquiry-based knowledge,
together with incorporated elements of English common law and indigenous resistances.40
In concert, the combination of local and general knowledge defined what an appropriate
legal judgment in context should entail. To be sure, this point demands further attention in
early Cape studies, but its resonances contour postcolonial understandings of authoritative
judgment. The rise of restorative justice, with mediation and arbitration as possible replacements for legal judgment may provide a case in point, as might the call for creative versions
of judgment.41
Secondly, legal judgment is always the outcome of complex relations. As Latours
recent ethnography suggests,42 the events that lead a French administrative court
to judgment may be viewed as a unique achievement pivoting on catalogued files,
38. Jennifer Culbert, Dead Certainty: the Death Penalty and the Problem of Judgment (Stanford,
CA: Stanford University Press, 2007).
39. Culbert, p. 138.
40. Ross, pp. 16680.
41. See Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Stanford, CA: Stanford
University Press, 2008).
42. Bruno Latour, The Making of Law: an Ethnography of the Conseil D Etat (London: Polity
Press, 2010).

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depositions, accounts, facts, reasons, ratios and so on. In concert, as he argues, these
relations form a network, an assemblage, which produces both the law and the judgments made in its name. But what is distinctive about the assemblage of legal as
opposed to other forms of judgment? Of course, the question is complex, but Webers
disarmingly simple suggestion is useful:
An order will be called law if it is externally guaranteed by the probability that coercion
(physical or psychological), to bring about conformity or avenge violation, will be applied by a
staff of people holding themselves specially ready for that purpose.43

That is, legal judgment is unique in the violence that is implicitly mobilized in its name.
Cover makes the point in this way:
Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal
interpretive acts signal and occasion the imposition of violence upon others: a judge articulates
her understanding of a text, and as a result, somebody loses his freedom, his property, his
children, even his life. Interpretations in law also constitute justifications for violence which
has already occurred or which is about to occur.44

In other words, both organized enforcement and the associated violence are intrinsic to
legal judgment. In the Cape case, one could of course point to the directive sequence
from the courts judgment to the tangible scars produced by the severe whippings of
Claas and Martinus.
Thirdly, legal judgment appears always to be caught between trying to justify itself on
eternal promises (e.g., doing justice) while dealing with highly dynamic local circumstances. The legal rituals of the case previously described are directed toward the task of
founding legal judgment absolutely, of apodictically deciding events or disputes in the
name of justice, and simultaneously concluding rather particular events. Here one might
reiterate an understated recognition that legal judgment is at base or constitutively
impossible. Understood by broad movements like legal realism, sociological jurisprudence, the sociology/anthropology of law, critical legal studies,45 this point is uniquely
inflected in Derridas now well-known description of the aporetic structure of legal
judgment and decision finite calculations of immediate events are situated against the
radically incalculable, infinite justice to which legal judgments invariably refer. If this, at
least, reveals indecisiveness at the heart of any legal decision, implying a deconstruction
that lies between laws determinate judgments and the promise of an eternal justice, it also
recognizes that,

43. Max Weber, Max Weber on Law in Economy and Society (New York: Simon and Schuster,
1954), p. 5.
44. Robert Cover, Violence and the Word, The Yale Law Journal (1986), 95, pp. 160130.
p. 1601.
45. See George Pavlich, Law and Society Redefined (Oxford: Oxford University Press, 2011).

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law claims to exercise itself in the name of justice and justice demands for itself that it be
established in the name of the law that must be put to work by force, enforced.46

The mutuality of enforced legal judgment and indeterminate promises of justice offers a
way to think about the Court of Justices claims that its judgment is necessary in, a
Country where Justice and Law are duly enforced, recognizing the deterrent example
that its punishment must produce.47 Its specific calculation of an irresolute promise of
justice resonates and is indeed part of the standard language used to convey the Cape
courts judgments at the time. Fitzpatrick helpfully frames the insight by arguing that the
law of judgment, just as the judgment of law, centers on the contradictory requirement to
judge determinately in a given case or instance, but simultaneously to ensure that the
decision is responsive to that which is other to, beyond, the given instance. In his words,
For law to rule, it has to be able to do anything, if not everything. It cannot, then, simply secure
stability and predictability but also has to do the opposite; it has to ensure that law is ever
responsive to change, otherwise law will eventually cease to rule the situation which has
changed around it.48

This statement succinctly captures why legal judgment is permanently beset by the contradictory requirement to determine a context-based outcome and at the same time is
open to indeterminate change, remaining responsive to what is to come. Legal judgment
thus finitely calculates the infinite and incipient promises of justice that is always in
excess of any given being. And the pervasive indecisiveness that haunts any judicial
decision may well reflect legal judgments most timeless advantage.

46. Jacques Derrida, Force of Law: The Mystical Foundations of Authority, in J. Derrida &
G. Anidjar, eds., Acts of Religion (New York: Routledge, 2002), pp. 22898, p. 251.
47. See Ferrara, Chapter 3, for a discussion of the uses of examples of judgment in the politics of
public realms.
48. Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University
Press, 2001), p. 71.

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