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LAW AND CAPITALIST DEVELOPMENT:
The Colonization of Sub-Saharan Africa

MARK C. KENNEDY
American University of Cairo

[From: LAW AND SOCIETY: A CRITICAL REVIEW,
T. Caputo, M. Kennedy, C. Reasons, A. Brannigan.
Harcourt Brace Jovanovich, 1989]

CONTINUATION FROM MAY NEWSLETTER: See:
PART ONE OF ARTICLE: Commentary Introduction

Contract Labour Laws: Criminal and Penal Laws Governing Social Relations in Production
Capitation and hut taxes, the advances system, and the several forms of compulsory labour - all of which were authorized under colonial codes and associated practices - succeeded in removing natives from their own villages and modes of production and putting them to work for Europeans in both private- and public-sector colonial enterprises. While the paths to wage labour were several, they all pointed in one direction: namely, working under the laws governing the relations of workers under contract to employers. The main factor in tax laws an the advances system was debt. The inability to pay tax and other debts in money, ordinarily a civil affair, itself became a crime. The laws to authorize compulsory labour, which legalized forcible impressment into wage labour, did not involve debt, and the legality of such laws did not rest on any principle of inalienable rights of individuals. had any state been founded on such a principle, then impressment would have been a criminal act on the pat of colonial regimes against the people they governed. As it was, the creation and execution of impressment laws was an act of war. none of these laws to effect recruitment was applicable to any but the native population (except, for a short time, to imported Asian labour). These laws, then, together with laws involved in contract labour, are laws of differential incrimination. What wa involved in the application of recruitment and contact laws was the states’ direct role in the creation of a capitalist system of production. That is, crime production and the mode of production were clearly parallel processes. Through these laws and their enforcement, a working class was established.

Penal Sanctions for Violations of Labour Contracts
Throughout most of sub-Saharan Africa, labour contract laws came to be modeled after the Masters and Servants Act of Cape Colony, 1873, varying only in small details. This act and those based on it spelled out two categories of contract violations as harms against the state. penal sanctions varied in severity depending upon the category of the violation and the severity of the violation within its category. The first category included failure to begin service, failure to show up for work while in service, intoxication at work, using the employer’s property without permission, fighting , and neglect of duty. The second category included endangering property by neglect of duty or intoxication, failing to account for loss of animals or other property of the employer, assault and brawling, and desertion. What follows is an inventory of these laws of contract.

• Natal and the Transvaal. The Native Service Act No. 24, 1932: Stipulated corporal punishment for any contravention of the 1873 Masters and Servants Act. It authorized masters to carry out some punishments, even to workers under 18 years of age, and ostensibly to refer a worker to court for most serious violations. The Native Labour Regulation Act of 1911 extended the application of the Act of 1873 to mine workers. The previous act applied only to agricultural workers. In 1952, some 8,000 Africans were arrested in these two areas for infractions of labour contract rules (Hailey 1957, 1414).
• British Dependencies Applied the Cape Act of 1843. Later this Act applied also to the High Commission Territories. Yet it did not proscribe so many acts as contract violations, and eventually only failure to appear for work and desertion were punished. This Act also legalized the role of the trader/recruiter (”black-birder”) who played a key role in the advances system. Stipulated also was the proscription against a worker taking a second advance before his first one was worked off (Berg 1965, 403 and 408-11; cf. Hailey 1957, 1415).
• Northern Rhodesia. Contract law paralleled South African law, but applied penal sanctions only for refusing to accept employment and desertion.
• Kenya Colony. The Masters and Servants Ordinance, 1910, strictly applied the rules of the Cape Act of 1873 until 1923, when the severe clauses were watered down considerably (Hailey 1957, 1415).
• Tanganyika. Came under the same law, but applied sanctions only for desertion and for leaving the job after advances were made (Hailey 1957, 1415).
• Zanzibar. Applied the same law as in Tanganyika (Hailey 1957, 1415).
• French Territories. The exception to the rule: French law was not modeled on the Masters and Servants Act. French colonial law distinguished between “justified” and “unjustified” absences, but no penal sanctions applied to them. If a man did not work, he did not get paid; if he was absent unjustifiably, his contract was terminated.
• Belgian Congo. Decree of March 16, 1922, approximated to the Cape Act and levied sanctions for getting advances fraudulently,, and for the worker’s failing to return to his normal place of employment (his village) when his contract expired. (An amendment to this decree was passed on july 30, 1945.) Belgian colonial officials argued that under les sanctions representatives both employers and employees came under the terms of this decree. But in 1954, Hailey reported, there were some 32,896 convictions for contract infringement; none of those convicted were bosses (1957, 1415).
• Portuguese Territories (Angola and Mozambique). infractions of contract terms here were similar categorically to the Masters and Servants model, and the most severe sanctions were consistently applied. Contract violations under Category 2 earned a labourer up to one year in prison at hard labour. Failure to complete a contract and failure to show up for work required the worker to refund the cost of recruiting him (including the balance of the advance he had received). His alternative was to serve time at hard labour for a period not to exceed six months. This law distinguished “civilized” from “uncivilized” persons of the territories, and contract laws applied only to the latter. Europeans and assimilados, the law declared, were civilized, and were exempted from punishment for contract violations.

To sum up, the two orders of penal laws (default and contract law) created hundreds of thousands of convicts serving time at hard labour through sub-Saharan Africa, and at the same time they upheld not only a racial or ethnic division of labour but also the class formation which attended it. Where civil laws were applied to Europeans and ethnic aliens for default and contract violations, criminal and penal laws were applied to all natives for these “offenses.” Under law, a contract with an employer gave a certain amount of autonomy regarding choice of occupation and terms of employment to Europeans, ethnic aliens, and assimilados, but not to African workers, who laboured for wages under indentures which were worse than slavery.

Nor were these particular criminal and penal laws the only ones to guarantee maintenance and reproduction of the class formations and the underlying mode of production. The laws just reviewed bore only on the dissolution of native societies and their modes of production and the creation of a working-class substratum, without which capitalist society could not emerge. Moreover, the enforcement of these laws created several different orders of workers. The total labour force which created surplus value and capital accumulation in the colonies, then, had to include prisoners, contract labourers, the middle group of voluntarily employed persons (shopkeepers, hawkers, and service workers who were not African), and the top tier of clerical workers, whose jobs were earmarked in law for Europeans only.
Perhaps the biggest factor in capital accumulation in the colonies was prison labour power. Hard labour, invariably included in one’s three-year stint in prison or labour camp, represented three months’ wages on the outside. The infrastructures of the public sector were built almost entirely by the prison labour force.

Laws Governing System Maintenance: A Study of Caste Incrimination
While space does not al;low an inventory of all laws which served to maintain and reproduce the total mode of production and the class formations of colonial capitalist societies, several categories of proscriptions and associated penal sanctions are reviewed here: the control of “free” movement, the maintenance of caste-like social formations, the suppression of labour, and differential access to justice. Some of these laws attained universality throughout sub-Saharan Africa, then vanished when colonialism was transformed, but others pertained only to apartheid Africa, where they still apply today.

Restricted Spatial Mobility: The Pass Laws and Denial of Free Movement
The pass laws which for a time achieved unlimited generality throughout sub-Saharan Africa came eventually to apply only to apartheid Africa. These laws strictly controlled the free movement of natives and applied specifically to three categories of people: (1) natives living apart from the reserves in colonial employment, (2) natives living on reserves, and (3) natives living in urban places as workers but not as settlers. Certain pass laws also applied to mixed races and ethnic aliens in urban places who would venture out of cities into rural areas or seek a different area of residence in the cities other than the one legally set aside for them.
Pass laws cannot be fully understood without reference to the native reserves, those reservoirs of potential labour for colonial enterprises. Freedom of movement created the risk of depopulation of the reserves, native settlement on lands set aside for colonial exploitation, and a breakdown of the wage-labour system that had been created; thus it ws repugnant to colonial regimes. Any native who could not show a pass became, under law, a vagrant and liable to be punished. South Africa’s pass laws date from the Proclamation of 1809, when the so-called Hottentots were issued passes permitting them to be temporarily in a particular area reserved for colonial use. Failure to present a pass resulted in arrest for vagrancy, and a vagrant ordinarily became a slave of anyone who needed labour power. Arrested persons were denied their freedom without trial and fell victim to all penal sanctions for violations of contract. Pass laws were also used to prevent invasion of the Xhodsa into South Africa’s border districts, and to confine nomadic movement into the Transkeian Territory or into British Bechuanaland. In the Transvaal and the Orange Free State, pass laws were used to retain native labour which was already impressed into agricultural work. In this case, only those already employed, or who had been issued permits to seek employment elsewhere, were given passes. In the Transvaal, according to Hailey, flogging was added to the penalty of imprisonment. Later (1867 and 1875), diamond mine operators had no need of such laws because their workers were confined to walled or fenced compounds. Closed compounds were not used at gold mine sites, and there desertions were curbed by marking off labour district boundaries within which anyone without a pass was subject to arrest without trial (1957, 1419).
Between 1809 and 1952 a complex web of pass laws emerged. Act No. 22 of 1867 in Cape Province classified Africans as “foreign natives” who had to obtain a pass before entering the colony.
In effect, this meant that passes were required by Natives moving into the Cape from South-West Africa or the High Commission Territories, or in and out of British Bechuanaland and in and out of the Transkeian Territories. No pass was required to travel from one part to another within the Transkei. Elsewhere in the Cape, no pass was required, but the provisions of the Vagrancy Act No. 23 of 1879, as amended in 1881, remained available to check what was technically known as “vagabondage.” (Hailey 1957, 1419-20)
Special passes proliferated from 1867: passes to permit natives to travel into areas proclaimed by whites, to permit a person to seek work in an area other than “his own,” to permit a woman to be away from her place “of origin” (having to have a “certificate of approval”), to be out at night after curfew, and even to have someone visit one’s home.
The Natal Act of 1884 created something akin to a passport office. Natives could travel without a pass within Natal, but had to show one to leave Natal. With all this special paperwork and personnel to keep tabs on Africans the bureaucracy mushroomed into absurdity. Other laws included
• Native Lands Act of 1913: Natives had to obtain passes to travel between two provinces (Transvaal and Orange Free State).
• Native Labour Regulation Act No. 15, 1911: Natives were not allowed to travel between two “work districts” without a pass.
• Native Service Contract Act No. 24, 1932: Required all tenants (farm workers) to get ID cards prior to leaving their home area. This act applied in the Transvaal, Natal, and part of the Orange Free State. The ID card had to show permission for the worker to seek work beyond his district.
• Natives Taxation and Development Act: Provided that European officials or a native chief might demand to see a tax receipt (for the head tax every worker had to pay in money or in colonial employment). Movement was restricted unless the worker could document proof of fulfillment of his work contract.
During the 1920s in South Africa, due to the swelling of native populations on the reserves, the pressure on resources was intense. Native modes of production on the reserves had relied on free movement ot expand and prosper. To extend production beyond the reserves was proscribed. Pastoralism was choked with too many people and animals. Farming was possible for but a few (Bundy 1979, 237ff). Peasantry in confinement had no access to lands districted for mining, colonial crops, commerce, and industry (Palmer and Parsons 1977, Ch. 4 by Clarence-Smith; Ch. 5 by Parsons; Ch. 6 by van Horn). Apartheid theories of keeping all natives on reserves and slowly replacing native labour in cities with Dutch or other European workers became absurd (MacArthur 1972, 35-42). As reservists began to swarm out, pass laws became too complex. The result was a bill to abolish passes and enforce a new system to coordinate documents: Natives (Abolition and Coordination of Documents) Act No. 67, 1952.
Instead of multiple passes, each native had to carry a “reference book” containing an ID card with blanks for noting tax payments and receipts of permits from urban local authorities or labour officers. Every employer was required to report the hiring and dismissal of any native worker in his employ. This Act created a Native Affairs Central Reference Bureau for the centralization of all records, including fingerprints, of those to whom the reference books were issued. A number of earlier restrictions were removed, but the major controls remained (Hailey 1957, 1412).
Apartheid society was not confined to the Dutch and the British Colonies; it was simply more visible there in the literature surveyed. According to a South African Native Economic Commission report covering the period 1930-1932, out of the Union’s 42,000 convictions for offenses against pass laws no fewer than 39,000 came from the Transvaal in 1930. From 1939 through 1941, 273,790 Africans were convicted of pass violations in the Transvaal. Some 20,000 additional convictions issued from other parts of the Union. The Commission report stated that these laws had the effect of “creating a large volume of technically criminal offenses which carried no moral opprobrium” (Hailey 1957, 1722).
Similar laws were applied in East Africa and in Southern and Northern Rhodesia. Under Kenya’s REgistration Ordinance of 1915, each African was required to carry a certificate of registration. The provisions of this law were extended to record a person’s employment and discharge on the certificate as well as requiring him to present the certificate in order to get work outside his home area. In Southern Rhodesia a registration certificate was required of every male; it gave identification data and a record of his work contracts, wages received, and medical facts. The situation was similar in Northern Rhodesia. under the native Registration Act and the Natives (Urban Areas) Accommodation and Registration Act in this same period, unemployed adults and unaccompanied women and children were required to carry a pass authorizing them to seek employment or to visit the town. Town dwellers were required to renew their certification of current employment in the township every six months (Hailey 1957, 1422).
Pass law violations, when added to the violations of tax and debt defaults and of labour contract terms, created an enormous number of convicts doing hard labour. It cannot be denied that prison labour was a large and growing contribution to production and capital accumulation in sub-Saharan Africa, and yet the categories of criminal laws that also produced prison labour have not yet been exhausted here. There were criminal and penal laws promoting differential incrimination that bore directly upon maintaining and reproducing the social structure within the colonies: proscription of mixed marriages, denial of black suffrage, segregation of public and private premises and transportation facilities, and private property restrictions. As well, numerous laws promoting suppression of labour and labour movements were implemented. As if all this was not enough, there were laws which provided differential access to justice.

Law, Differential Incrimination, and Social Structure
Upward social mobility was curbed at every point - politically, occupationally, in land ownership, commercially, residentially, and spatially. While these and other caste-producing laws applied mostly to Dutch and British territories, they also appeared in Belgian and other territories as well, albeit perhaps in less severe forms and without specifying as many restrictions. The colour bar did not appear in Portuguese territories as it did elsewhere in the sub-Saharan colonies. The laws presented here deal for the most part with South Africa, where upward mobility within castes, but not between castes, was possible under law.
• The Prohibition of Mixed Marriages Act No. 55, 1949: Upward mobility via marriage was scotched by penal sanctions (Hailey 1957, 1422).
• Electoral Consolidation Act No. 46 and its amendments: Denied the vote to all nonwhites and to Indians, Pakistanis, Goans, Chinese, and other ethnic aliens. Also denied them administrative posts in government. This law defines Africans as non-citizens (Hailey 1957, 1422).
• The Reservation of Separate Amenities Act No. 49, 1953: In conjunction with other Acts, delineated public premises and public transportation areas where only Europeans were allowed (Hailey 1957, 1422).
• Population Registration Act No. 30, 1950: Amenities for Africans and non-Africans were separated in public places and public transportation. This law ws amended by the 1953 law (just above). Persons suspected of being the “wrong race” on these premises had to produce an ID card on demand. Prosecution began at that point (Unterhalter 1972, 15).
• Natives Land Act No. 23, 1913; Natives Trust and Land Act, 1936: both Acts deny land in private property to Africans and “coloureds.” This denial pertained to any lands released from public domain for private use. Except for private ownership of shops in urban areas, this law also applied to Indians and other ethnic aliens. Lever Brothers Palmolive Peat Company of course could acquire such land, along with other European enterprises, but not the middle class of outsiders, and certainly not blacks and persons of colour (Hailey 1957, 1422).
Laws Restricting Commercial Activity
In order to do business one had to have a special license for each type of business proposed. The laws relating to this defined who was and who was not “qualified” to receive a license of a specific kind:
• The Group Areas Act No. 30, 1928, section 53 bis: Disqualified Bantus from applying for a liquor license. Disqualifications automatically applied to Bantus in applications for private property, and for taking up certain occupations that required a license.
• The Bantu Labour Acts No. 30, 1950; No 67, 1964; and No. 36, 1966. Defined what specific racial groups or classes an individual had to belong to. These laws also specified what a person of a given race, class, or ethnic group could and could not do occupationally. The favoured occupations and professions were open only to Europeans, but the ethnic aliens were allowed under these laws to enter into petty merchantry and to work on public transportation facilities. Blacks were denied this (Kinghorn 1972, 68).
Laws of Labour Suppression
While the above laws were laws of labour suppression, the following laws bear more directly upon denying Africans any legal way to better themselves or to engage in protests of strikes.
• The Industrial Conciliation Act No. 28, 1956: Denied Africans the right to take part in proceedings of industrial councils to negotiate wages, wage agreements, and work conditions. Section 77 denied competition between races and ethnic groups and between social classes. This Act empowered the Minister of Labour to reserve any particular work either wholly or partly for persons of a specified race, class, or nativity. In theory, as soon as a non-African vacates a position, or beforehand, the position would be reserved for another race. In practice it was otherwise.
• The Bantu Building Workers Act No. 27, 1951 (In section 3 of Motor Carrier Transportation Amendment Act No. 42, 1959, and Section 20A of the Bantu Labour Act No. 67, 1964): These laws reserved certain jobs for whites only (Kinghorn 1972, 68-70).
All these laws also established special commissions and bureaus, courts and councils, agencies and data centers, officials and support staffs, co-ordinative agencies and intercommunication facilities. By 1950 the bureaucracy of apartheid had become so complex, and caste dynamics so impossible to manage, that the Population Registration Act of 1950 was established to simplify everything. It required all “races” to register with the government and identified people racially under legal concepts. All vital statistics were registered; each registrant was issued an ID card giving all these data and was to be carried at all times for official use to determine one’s qualifications and culpability for any infraction of these laws. This too became absurd: persons defined as white under one statute were often classified as mixed race under another statute.

Further Labour Suppressions
In addition to the above acts of labour suppression, there were codes to suppress membership in any union or political party, suppress demonstrations of protest, and incriminate informal housing for those who could no longer support themselves on reserves by engaging in indigenous modes of production. Rather than provide adequate housing, the state enacted and enforced the illegal Squatting Act No. 52, 1951. Any effort on the parts of those in violation of this law to obtain legal suspensions of this law in the courts or other agencies was precluded under the Bantu (Prohibition of Interdicts) Act No. 64, 1956, as amended by Act No. 42 of 1964. Under these codes a magistrate was empowered to give an order for a summary eviction of any persons accused of illegal squatting, once that same official had convicted the squatter. The magistrate was also authorized to order demolition and removal of all buildings the convicted worker had built for his family.
In addition to such suppressive measures as the Bantu Labour Act and the Industrial Conciliation Act of 1956, and the earlier Bantu Building Workers Act of 1951, mentioned above, there appeared a number of Acts to suppress any protest and any assembly of workers to discuss the means of improving their condition. The so-called Suppression of Communism Act of 1950, the Terrorism Act No. 83 of 1967, and the Riotous Assemblies Act No. 17 of 1956 were all geared to the idea that through brute force against labour the wretched conditions of workers and their families could be continued without economic, political, and social destabilization. And in apartheid society, until recently, that strategy has worked. Sooner or later Africans will, however, rise up against the system which has denied them access to justice. No doubt the first place to be emptied will be the prisons.

Differential Access to justice
In the above laws all access to justice was firmly blocked through labour suppression. Despite the costs of administration of the bureaucracy of suppression, the probability is very high that the capital gained by prison labour more than paid the bill. But there was one other Act in the maser plan of suppression and imprisonment: The Criminal Procedure Act No. 56, 1956. This act provided that the Attorney General was authorized to detain any person as a witness in specific criminal proceedings for as long as a month or until the trial in question was over. These laws did not apply to Europeans, nor for the most part to im ported Asians. Moreover, there had been on the books for more than a half century laws which legalized searches and seizures without warrant of writ, pretrial detention for open-ended periods, and imprisonment without trial (as was mentioned above in connection with labour and pass laws). With regard to the Criminal Procedures Act of 1956, the Attorney General was given power over the courts. no court was empowered to suspend any actions ordered by the Attorney General for any reason whatever, except in cases where Europeans were involved. Europeans in all such cases had to be brought to trial within forty-eight hours (Unterhalter 1972, 16-18).
From the early nineteenth century to the second half of the twentieth century, Europeans conducted a war of laws against native Africans. The Dutch were by no means alone in this, yet their war against Africans came to be the most severe and took the most casualties in terms of numbers of hard labour in prisons and labour camps, and of the destitution of the masses an d the families of the imprisoned labour force. South Africa, the last to give up slavery, perfected a system that made wage labour more wretched than slavery. The state was in no way obliged to provide welfare for the families of imprisoned labourers, nor to provide relief of any kind for the destitute on the swelling reserves or for those who could not provide for their families by means of the wages they received. (Under slavery, the master had at least to bear the cost of all nonproductive slaves.)
Van Niekerk (1977) observed that one out of every four Africans is arrested each year for one or a combination of all possible violations described here. nearly all arrests were, and are, technical and carry no moral opprobrium. Technical violations, of course, apply only to Africans in south Africa today. Van Niekerk estimated that for every person charged with a technical offense at least three pay “spot fines” to get off without further incrimination. out of a 1972 total of 8 million Africans in South Africa, 2 million did not get off by paying spot fines. During the statistical year 1970-71, the convicted violations show in Table 2 were recorded.

Table 2
Distribution of Convicted Violations of Apartheid Laws, 1970-71, South Africa
Type of Violation Convictions
Curfew Regulations136,118
Foreign Bantu in urban areas 15,240
Bantu documentation offenses 282,684
Bantu influx control offenses 159,122
Bantu tax laws 105,576
Illegal possession of Bantu liquor 35,868
Trespassing 178,085
Masters and Servants Act 21,911

Total 934,604

Source: Commissioner of South AFrican police 1972, as cited by van Niekerk (1972- 57).
In view of all this, it staggers the imagination that apartheid continues to be rationalized. What was mouthed in the late 1960s continues in different words today, but not without trepidation. In 1967, the Hon. O.D. Schreiner of South Africa, delivering his Hamlyn Lectures on the courts and the legal profession, had this to say:
The real case against Apartheid at the present day is not that there is inequality in the administration of the law, for in general there is not, but that it is harsh, unfair, and increasingly difficult to support in the light of the growing industrial development of our country and in the light of modern views on the treatment of other races. (quoted by MacArthur 1972)
Summary and Analysis
Colonialism was born with the demise of mercantilism. Mercantilism involved the expansion of capital through a lively entrepot trade in the period of nationally rooted trading companies. The colonial pattern of constant shipping of natural resources to the home country and machines to the colonies had not been established pervasively. The Dutch East India Company in South Africa was merely a waystation on its Indian or Asian trade routes. Early settlers were not even colonists but were brought in largely to service that outpost, displacing the pastoral people the Company had alienated from that service due to its repugnance for blacks (Denoon 1972, 8-14). Wage labour had not yet begun, and black labour was not in demand for use in sub-Saharan Africa.
Trading companies did not typically purchase raw materials in exchange for manufactured goods. As O’Connor observed, late in the seventeenth century British ships took woolens and hardware to India and returned with cotton and silk products. In the home countries during the mercantile era, technology was still labour-intensive; companies were not vertically integrated; and laissez-faire prevailed within the nations but not abroad, as each state assumed an active role in regulating and buttressing the trading companies and their foreign ventures. As capital-intensive technology was developed in Europe, and as companies became vertically integrated, the mercantile pattern of trade gradually vanished as one by one the trading companies shut down. The East India Company was the last to close, early in the nineteenth century. With the demise of these companies came the end also of the vigorous commercial wars that had peaked in the seventeenth-century Anglo-Dutch wars. States’ mercantile policies lost their objects of control. Capital accumulation through mercantilism was a kaput mortuum (O’Connor 1970, 104-6).
European regimes were quick to make up for the loss of mercantile capital accumulation. Beginning early in the nineteenth century in southern Africa, and spurred by the economic depression of Europe during the last three decades of that century, European states began a penetration of Africa that led to its partitioning and the establishment of colonies and protectorates. The buildup of the necessary infrastructures required massive infusions of capital. National banks in each nation loaned their regimes vast sums, and when such financing proved insufficient to meet colonization costs, the balance was supplied by taxpayers (Moraze 1966, 371-73; O’Connor 1970, 105). There soon followed the establishment of colonial administrations with offices in the home countries, territories, and local districts - politically linking home country with far-flung territories, and through “treaties” with local chiefs (and appointed chiefs), linking natives with local colonial offices.
The partitioning itself brought considerable social disorganization among native populations. By setting up territorial borders, partitioning cleaved those societies apart and prevented social intercourse between them. These borders, patrolled as they were, prevented traditional modes of socio-economic expansion by extension outward of pastoral and agricultural means of livelihood. This expansion was further curtailed by the passage of the several varieties of great reservoirs of potential wage labour and threw together as neighbours peoples with very different ways of life. With partitioning, the Native Reserves Acts, and the criminal laws that colonial rulers generated, society for blacks became akin to a minimum-security prison.
One major consequence of the application of the penal laws reviewed here was the creation of three basic forms of labour: indentured wage labour, prison labour, and small craft and shop labour involved with the petty merchant activity of a middle group of ethnic aliens (Indians, Pakistanis, etc.). The latter group had at one time been imported as wage labourers, but was later exempted from labour contract terms that applied to Africans.
Another major consequence was the depopulation of native societies and their ultimate dissolution as more of their members were forced into the employment of those who controlled the major means of production and public works, and as hundreds of thousands of natives were imprisoned at hard labour. Thus native modes of production and their potential for development were vitiated.
A third consequence was the increasing and finally pervasive, dependency upon money and the use of money for market purchases. This was of course tied to the transformation from native to colonial modes of production - that is, from labour to produce commodities for use value only to labour to produce commodities for exchange value. This in turn was a transition from native rural production to colonial plantation, mining, and ultimately, urban production.
A fourth consequence was the curtailment of spatial and vertical social mobility for Asians (the middle group) and Africans. The pass laws in all their variety and complexity, together with the laws which restricted land use and dictated what “racial” groups could do for a living, served to maintain and reproduce the total system that began with the laws which forced natives into wage labour and into the prisons of sub-Saharan Africa.

From this survey we can conclude the following. At the time when colonialism was projected as an alternative to a dying mercantilism, the nations of Europe were becoming capitalist states in an increasingly capitalist society, yet their colonies at that time could in no way be envisioned as such because the division of labour and the social formations necessary to a capitalist society were absent. With the implementation of the laws reviewed here, however, this early condition was substantially altered, and in the process of creating and implementing these laws, the endlessly complex bureaucracies of colonial governments in the territories were perforce established. Thus the apparatus of capitalist states was being recreated in different forms from one colonial territory to another. While caste capitalism still exists in South Africa as opposed to other territories, its social formations are stratified, and basic production of commodities for exchange value and capital accumulation still depends upon the power of wage labourers and convicts. It is not the fact of caste versus class that determines a capitalist society; it is the fact that wage labour creates the commodities upon which all surplus value is contingent. Insofar as this continues to be the case in sub-Saharan Africa in its postcolonial periods, all independent nations there appear to have no choice but to manage the dilemmas of any capitalist society where labour surplus has become a fact t of life. Surplus labour generally depresses wages and brings the impoverishment that attends unemployment. Yet surplus labour increases surplus value, and the latter converts to capital formation. Any state that must guarantee the latter must nurture poverty through surplus labour but at the same time ust contend with what increased impoverishment risks - namely social, economic, and political conflict and destabilization.

Discussion
Development theories do not ordinarily take account of the uses of law by the state as a major factor in societal development and transformation. Yet whenever we examine the impact of applied criminal and penal codes, what stands out clearly everywhere is that through differential incrimination, through the selective application of both civil and criminal laws, the mode of production can either be created (along with its social formations ) or guaranteed, maintained, and reproduced. In the case of development in sub-Saharan Africa, as we have seen, older modes of production were obliterated in the same processes by which African societies wee reconstructed into capitalist societies. Both civil and criminal codes worked hand in hand to achieve this twofold result.
It is also clear in the review of all penal sanctions so severely applied against Africans that the chasm between native and European methods of production, and between their ideology and social formations, was so vast as to be unbridgeable, even without language barriers, except by resort to direct and indirect force. Consensus and Durkheimian morality played no part in this transformation, but law and penal sanctions did. if Durkheim’s forced division of labour is an abnormal form, then, all over the world today, what is abnormal is what is typical. Yet neither can we dismiss the normative order (the criminal and civil law) that was imposed on Africans as nondeterminative superstructure, for the laws reviewed here and as applied in the colonies created the substructure of colonial capitalism, and at once destroyed the better part of native modes of production.
It is clear too that colonial regimes, under home office policies, continually reconstituted themselves as capitalist states in the process of creating this vast transformation of social structures. When colonialism finally vanished, and political independence from home office control ceased, what remained in the territories were different varieties of capitalist state - however unstable the remainder may continue to be.
The point, of course, is not to prove the existence of states as capitalist states. The task is to determine the forms they have taken in the various areas where colonial capitalism has created such diverse offspring in sub-Saharan Africa. That is a task that would require far closer analysis of the manner in which production was organized in the transformation process, and how such organization has changed over the years in each new, independent nation. Currently, in much of Africa transnational and multinational corporations have penetrated these nations and have gained a good deal of control over the production process, such that the policies of the government and the policies of these corporations are often in conflict. While some of the structuralist models would prove helpful in determining the forms of each state prior to this penetration, such as the methodological model presented by Poulantzas (1976, 147ff.), they would appear quite useless given the fact of the penetration of global corporations. The same holds true for the concepts of Althusser (1972) unless one may speak of a transnational or global capitalist state, and one has not appeared yet on our global horizons. There are treaty organizations like NATO, but global corporations go unregulated by them and the corporations’ policies are unaffected by them.
The most likely model for understanding the forms of these new nation-states prior to around 1950 would be a structuralist one - but whose? All of these theories seem to be constructed with the postrevolutionary constitutional nations in mind (England after Cromwell, France after the Bastille, America after George III). While they distinguish between mercantile and capitalist society, as they should, none of them come to grips satisfactorily with the emergence of colonial capitalism. All the contributors to hilton’s The Transition from Feudalism to Capitalism, for example, debate this transition without reference to the possibility that without colonialism’s contribution to European economic growth, the Industrial Revolution under capitalism might never have taken place (Hilton 1976). O’Connor (1970), instructed by the works of Hobson, Lenin, and Dobb, is aware of the contribution of “imperialism” to European economic growth in the nineteenth century, but in his analytical framework colonialism is classified as “pre-capitalist” (103-12). In a painstaking, though erroneous, distinction between “pre-capitalist” and capitalist societies, O’Connor also attempted to distinguish between mercantilism and imperialism but allowed that there may be additional developments which need to be considered in his model of capitalism between these two historico-structural poles. His framework is too crude for the analysis of the emergence of colonial capitalist societies and states.
Generally, the concepts developed by instrumentalists are inadequate to the task of determining the forms of capitalist states because they seem to deny the existence of capitalist states and see political structures as independent of the political economy rather than as a part of the overall mode of production. Certainly this is true of Miliband’s The State in Capitalist Society (1969). Chambliss’s work (1979) has the ring of instrumentalism: he sees the role of the state as one of resolving the conflicts that occur within the political economy of capitalism. Its role in creating and/or maintaining the capitalist mode of production is not apparent in Chambliss’s frame of reference, at least not to Calavita (1984), who said that law for Chambliss represents the state’s attempt to resolve conflicts that derive from inner contradictions in the political economy. Calavita also showed that immigration laws in America between 1820 and 1924 resolved nothing, but only re-created conflicts in new forms and at different levels. If this is a valid estimate of Chambliss’s theoretical position, then it appears to have very little utility for understanding the emergence of capitalist societies in the colonial period of sub-Saharan Africa.
There does not appear to be any theoretical model that would apply fully to the dissolution of native societies and to their reconstitution as part of the capitalist modes of production that emerged in all these colonial territories. It is clear, however, that any future model would have to include explanations of how the state may utilize law to create, maintain, and reproduce any mode of production and the social formations that attend to it.

Works Cited
_______
Althusser, L. 1972. “Ideology and Ideological State Apparatuses.” In Lenin and Philosophy. ed. L. Althusser. Washington: Monthly Review Press.
Barnet, A.D. n.d. American University Field Staff Newsletter.
Berg, Elliott. 1965. “The Development of a Labor Force in Sub-Saharan Africa.” Economic Development and Cultural Change 13. no. 4 (July).
Berger, Elena. 1974. Labour, Race, and Colonial Rule: The Copper Belt from 1924 to Independence. Oxford: Clarendon Press
Calavita, Kitty. 1984. U.S. Immigration Law and the Control of Labor: 1820-1924. New York: Academic Press.
Chambliss, w. 1979. “Contradictions and Conflicts in Law Creation.” annual Review of the Sociology of Law, ed. S. Spitzer. Greenwich, CT: Jai Press.
Cohen, R, Jean Copans, and Peter Gutkind. 1978 “African Labor and Colonial Capitalism.” In African Labor History, eds. Peter Gutkind, R. Cohen, and Jean Copans. London: Sage.
Denoon, D. 1972. Southern Africa Since 1800. London: Longman.
Gutkind, P., R. Cohen, and J. Copans, eds. 1978. African Labor History. London: Sage.
Hailey, Lord. 1957. An African Survey. Revised 1956. London: Oxford University Press.
Hilton, R., ed 1976. The Transition from Feudalism to Capitalism. London: New Left Books.
Kenyatta, Jomo. 1938. Facing Mount Kenya. London: Secker & Warburg. See his treatment of Kikuyu political institutions.
Kinghorn, Colin. 1972. “Apartheid and Administrative Bodies.” In Law, Justice and Society. ed. Peter Randall, Johannesburg: Spro-Cas Publication No. 9.
MacArthur, N.M. 1972. “Apartheid, the Courts and the Legal Profession.” In Law, Justice and Society. ed. Peter Randall, Johannesburg: Spro-Cas Publication No. 9.
Mafeje, Archibald. 1971. “The Ideology of Tribalism.” Journal of Modern African Studies 9.
Magubane, B. 1971. “A Critical Look at the Indices Used in the Study of Social Change in Colonial Africa.” Current Anthropology 12.
Miliband, R. 1969. The State in Capitalist Society. New York: Basic Books.
Moraze. C. 1966. The Triumph of the Middle Classes. New York: World.
O’Connor, J. 1970. The Origins of Socialism in Cuba. Ithaca, NY: Cornell University Press.
Palmer, R., and N. Parsons, eds. 1977. The Roots of Rural Poverty in Central and Southern Africa. London: Heinemann.
Poulantzas, Nicos. 1976. Political Power and Social Classes. London: New Left Books. First published 1968.
Randall, P., ed. 1972. Law, Justice and Society. Johannesburg: Spro-Cas Publication No. 9
Rawcliffe, D.H. 1954. Struggle for Kenya. London: Victor Gollancz.
Rodney, Walter. 1974. How Europe Underdeveloped Africa. Washington: Howard University Press.
Unterhalter, Jack. 1972. “Apartheid Legislation and Our Inherited Understanding of the Law.” In Law, Justice and Society, ed. Peter Randall. Johannesburg: Spro-Cas Publication No. 9.
van Niekerk, Barend. 1977. “The Police and the Apartheid Society.” In Law, Justice and Society, ed. Peter Randall. Johannesburg: Spro-Cas Publication No. 9.



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