Power, while fundamental to sociality, might be exercised with haphazard ferocity or more judiciously in legally constrained ways. Such constraint requires us first to understand how ruling paradigms work, and the effects of their powers, before entertaining suitable forms of legal limitation. Transposing Kuhn’s famous concept, this paper examines a ruling paradigm of biopolitical sovereignty at the Cape of Good Hope through two examples: the 1891 census’ racialized categorizations of the “population”; and a racialized segregation responding to the 1901 bubonic plague. Prefiguring apartheid, both examples indicate how colonial laws authorized discretionary biopowers and yet exempted themselves from monitoring how officials demarcated and governed racialized population groups. The paper touches on the growing maladroitness of positivist ideas about a sovereign “rule of law” in regulating arbitrary biopolitical forces. It concludes by briefly indicating the promise of legal pluralism and Indigenous legalities to check capricious biopowers while pursuing legitimate life-affirming forces.
