In this chapter and the next, I develop the theoretical argument of this book. This chapter introduces a typology of law, which is indispensable for understanding the social function of law in ordinary times, and reflects on the strategy of conflict in democratization, which is necessary for understanding the social function of law in times of transition. The chapter provides the intellectual foundations for my theoretical argument about the legal origins of democracy. Building on these foundations, the next chapter advances a theory of law, incorporating insights from the literature on path dependence and increasing returns in economics and the social sciences. In conjunction, the chapters lay the groundwork for the history of law, that is, the comparative historical analysis of apartheid (Chapters 4 and 5) and apartheid's endgame (Chapters 6 and 7) respectively.

FOUR IDEAL TYPES

Throughout this book I take law to refer to a set of norms held by citizens, encapsulated in institutions, and enforced by officials. In this I follow Philip Allott who describes the social function of law thus: “(1) Law carries the structures and systems of society through time. (2) Law inserts the common interest of society into the behavior of society-members. (3) Law establishes possible futures for society, in accordance with society's theories, values, and purposes.” This conceptualization of law is grounded in Max Weber's contribution to conceptual jurisprudence (Begriffsjurisprudenz).