Legal Judgment and Cape Colonial Law

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 Homer’s 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 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 one’s 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 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 bishop’s 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,

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 sovereign’s order (and not simply against the victim), and to yield the fruits of that labor to another of the sovereign’s 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 Foucault’s 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 (1652–1795) to a first British occupation (1795–1803), 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 far-reaching spread of inquiry-based juridical discourses that authorized specific legal processes in the Cape.

As with Foucault’s 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 responses ²⁴ – 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 “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 Foucault’s lecture also references). By contrast, with the accused’s 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 person’s 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

Foucault’s 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 court’s 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 Court’s consideration. No unverified documents could be used during formal court proceedings.

From the brief record of the Court of Justice’s 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 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 accused’s confessions, considered “allwat further was relative to the cause” and then responded in the affirmative to landrost Johannes van den Riet’s 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 Foucault’s 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 Foucault’s 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.

So, as noted, the Cape court’s 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 Court’s inquiry-based judgment. If the oaths of Homer’s 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. Culbert ³⁸ 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 judgment’s “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 court’s 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 Latour’s 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, 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 Weber’s 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 court’s 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 Derrida’s 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 law’s determinate judgments and the promise of an eternal justice, it also recognizes that,

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 Justice’s 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 court’s 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 judgment’s most timeless advantage.