We are now in a position to consider how those higher courts in Natal and in the Transkei that were entrusted with the administration of ‘native law’ operated within the context of the administrative and political agenda, and contributed to the formation of the discourses on African law. In a society dominated by racist politics, and racially inspired public policy and legislation, the private law and the high courts have often been seen as essentially only racist when explicitly forced to be by a sovereign legislature. However both the supreme courts and those special higher courts that dealt with African cases were crucial to the elaboration of a differentiated and segregated law, and contributed both to the crushing of an assimilative legal liberalism and to the elaboration of a restrictive and authoritarian style of customary law based on differential racial capacities. In using the records of these courts my aim is not to illustrate the making of customary law and the management of social relations by African people. I am here trying to show how the dominating legal culture thought and worked; it is primarily an ethnography of the rulers' law, rather than one of the ruled. The leading studies of African law have been positivist, written for use within the system, and concerned with establishing the rules of law, and have therefore treated the reasoning and the decisions of the courts as sources of law established by precedent and stare decisis, developing a picture of increasing systemisation.