[intro]Many African thinkers criticize the 1996 constitution for what they see as its prioritization of Roman/Dutch law and English law, over the laws of the African peoples whose home South Africa is and has always been. They also criticize the constitution (Act 108, precisely) for, in effect, enshrining the European “right of conquest” by leaving unscathed the results of 350 years of colonial and apartheid dispossession. I am interested in the second of these criticisms although by doing so, I am not suggesting that the two criticisms are unrelated.[/intro]

At least two forms of the “right of conquest” theory exist. The first form is drawn from the medieval belief, held by no less a figure than Pope Innocent IV, that Christian armies had the divine right to conquer and confiscate the land and properties of heathens. This form does not seem plausible as a justification for leaving unscathed the results of colonial and apartheid dispossession, since it was often the case that the relationships that eventually degenerated into colonial violence sometimes began peaceably and amicably as between equals. Surely pretences to such amicability appear to have been made in at least some cases. The image of crusading hoards is not apt here.

The second form of the “right of conquest” is the idea that whatever is seized from an aggressor in the process of repelling his/her aggression is justly the repellant’s for the keeping. For example, when Israel argues that parts of the West Bank it has appropriated and built settlements on justly belong to it, they typically invoke the idea that, from their point of view, they justly acquired said land in the process of repelling Palestinian aggression. This second form therefore seems the more plausible candidate for providing a basis for the supposed rectitude of the constitution’s enshrining of the right to property appropriated under colonialism and apartheid.

In the context of South Africa, the idea would therefore be that the land which our European visitors expropriated from the African peoples who lived here for centuries before their arrival belongs rightly and justly to said Europeans since it was acquired as a result of their winning what, from their point of view, must have been a “war of aggression.” The aggressor here being the African.

To be sure, one could begin by questioning the basic correctness of the “right of conquest” theory. What about defeating a foe gives me an entitlement to their belongings, even if said foe was an aggressor? Does this not endorse a Darwinian approach to social and political coexistence? Perhaps a Darwinian justice, where you can keep all you take provided you can “successfully” (part of successfully doing this depends largely on where you are on a pre-existing power-structure, where the wealthy and powerful are believed and taken seriously almost by default, and the poor and wretched are viewed with suspicion, and are aggressors almost by definition) argue that the owner of what you took was an aggressor. But engaging with this question would take me far from my intended subject.

But let us assume, for one moment, that the “right of conquest” theory was correct. What is interesting about the “right of conquest” theory, as it applies to South Africa, is that it implies either that the Europeans came with land on their ships when they arrived in Africa; land against which the indigenous Africans moved, and in defence of which they (Europeans) were then able to capture more land which they could then “justly” keep. The second possibility was that this territory was completely uninhabited, such that they (Europeans) could have laid some rightful claim to it, justifying their taking away more land from Africans who may have migrated from elsewhere to initiate aggression against them.

Both claims would clearly be wrong. The first claim is plain in its ridiculousness. The second claim is racist in its implication, for it holds the supposition that those who occupied this land when the Europeans arrived where not “people”; they literally did not exist. The practice of re-naming towns, rivers and the peoples they met, which the European arrivals had, is one that suggests that they must have thought these peoples to be “nothings”, nameless, and in a sense, nonexistent. It also must have informed the imposition of their language and ways of knowing, which suggests that they must have thought that Africans neither really had a language nor had any real knowledge of the world. This view informs much in contemporary South Africa. The names they gave, the language they imposed and their system of knowledge continue relatively unquestioned to this day.

But the “right of conquest” theory faces another challenge: it is hard to dispute the view that the land grabs which were a result of parliamentary legislation, such as the Glen Grey Act of 1894 and Native Land Act of 1913, were clearly not cases where the British or the Afrikaaner acted in just appropriation of the land of an aggressor. They seem more like instances of colonial thuggery and gratuitous thievery.

Two conclusions may then be reached from this analysis. First, if the land ownership rights enshrined in the South African constitution are indeed dependent on the “right of conquest” theory for their justification, then they are unjust. For even if the “right of conquest” theory were correct, I have shown both that Europeans in South Africa could not have had such rights, and that historical instances of land grabs in South Africa do not show that they happened in a context of aggression.

The second possible conclusion is that the “right of conquest” theory is not at all the basis for the justification of the property (i.e. land ownership) rights enshrined in the constitution. This raises the question of what other theory may have been responsible for its justification.

I suspect that another theory, which to the best of my knowledge has barely received explicit articulation, perhaps because it is indeed a ridiculous theory, can be called on. It is the theory that one is justly entitled to land or property if one has occupied or held it for a long enough period of time, regardless of how it was initially acquired. We might call this the “time-lapse theory”. This seems to me to be the basis for the near universal acceptance and legitimacy which the United States of America, Canada and Australia enjoy, as political constructs. In these three cases, the European arrivals appear to have tried to wipe the native off the face of the earth, such that they could quite literally argue that the land was uninhabited. Failing to do that, the understanding is that since so much time has elapsed since the theft happened, we can now pretend the theft did not happen.

To be sure, this theory has serious conceptual problems. But one might also observe that it has utility. It is useful for preventing perpetual war. But even considering this utility, these countries justly owe their indigenous communities some compensation for what all mainstream theories of justice would recognize are historical injustices.

The dynamics in South Africa are different. Unlike the US, Canada and Australia, indigenous people in South Africa outnumber what some have called the “successors in title” (who continue to enjoy the benefits of those historical conquests), meaning that the scale of the injustice that has to be repaired, in terms of ratio, is much more significant. Monetary compensation for land of the sort that would work in the US, for instance, would be impossible here due to the sheer scale of such an endeavour. It seems to me that an attempt to repair the historical injustices done here would therefore have to involve the expropriation of land. And it would have to be without compensation, since compensation suggests just title exists, which I have argued there is no just basis for. The constitution will have to be amended to return title to land to its just owners. As Prof Mogobe Ramose (in “In Memoriam: Sovereignty and the ‘New’ South Africa”, 2007:pp310-311) says, “recovery and restoration as the twin exigencies of justice are the necessary means to the construction of peace in South Africa.”