Neither Settler nor Native: The Making and Unmaking of Permanent Minorities

by Mahmood Mamdani

Within the borders of each federation were and remain inhabitants subject to another kind of law: customary law. The people governed by it are members of native tribes, so called because the civil law groups them that way. If this sounds circular, it is: natives are not natives because of anything essential to them but because they were created as natives in law by settlers. Like civil law, customary law is unequal. It can offer its native enforcers capricious and tyrannical authority over other natives. But customary law, in both America and South Africa, is in no sense traditional. It is not a practice predating colonization. Customary law, like civil law, is created by settlers. The particular practices and norms associated with customary law are sometimes inspired by those of an era preceding colonialism, but customary law’s authority over natives, and the authority of natives to wield it, derives from statutes of the civil law.