JOHANNESBURG - Earlier this week I wrote an article critiquing recent remarks made by Margaret Marshall, the Chief Justice of the Supreme Court of Massachusetts, on the state of South Africa's judiciary. In a lecture in Johannesburg Marshall stated that, "South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have.... The diversity of your courts is, and should be, great cause for pride and celebration."

Given that the ANC had, in reality, ruthlessly elevated the pursuit of racial targets in judicial appointments over all other considerations, I thought this comment mindless. It was dangerous too, given that an Africanist cabal has recently taken control of judicial appointments.

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This article has now provoked critical responses from Jeremy Gordin, Professor Pierre de Vos and others. De Vos reacted with outrage to one paragraph in particular. I wrote:

"One of the founding texts of modern German anti-Semitism - Adolf Stoecker's 1879 pamphlet ‘What we Demand of Modern Jewry' - called for the ‘limitation of appointments of Jewish judges in proportion to the size of the population.' Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?"

De Vos accused me of "equating Nazi Germany with present day South Africa", before launching into an impassioned defence of racial discrimination in judicial appointments. Before I answer his criticism, let me be very clear about what I am arguing against. By any reasonable yardstick the judiciary is already ‘broadly representative' of the race and gender composition of the population. Only 44,1% of judges are still white, even though that minority constitutes about 75% of the legal profession.

When Jacob Zuma, Jeff Radebe or Dumisa Ntsebeza refer to ‘demographic' representivity they are signalling their determination to bring the number of whites on the bench down to that minority's proportion of the total population (9%). The addition of the gender dimension signals, in turn, the desire to limit the number of white male judges on the bench to less than 5% (or about 9 positions out of 202.)

So what I am arguing against, and Pierre de Vos is apparently arguing for, is the moral permissibility of racial discrimination when directed towards this ultimate goal. The question is: is this principle racist? And can parallels be drawn between it and European anti-Semitism of the inter-war era?

Gordin raises a pre-emptive moral objection to any such comparison. He does not argue that the analogy I draw between the demands of Jeff Radebe today, and those of Stoecker in 1879, is inaccurate, only that it is ‘inappropriate' (given what later happened under the Nazis).

I do think analogies with anti-Semitism should not be made carelessly. And I respect where Gordin is coming from. But, he must be careful about where his argument could end up going to. Invoking the Holocaust, in this way, leads to a rather strange place. It works, in effect, to shield modern racialists from moral opprobrium and meaningful intellectual scrutiny; and allows them to replicate (certain) policies from the pre-1939 era, without attracting any stigma.

This taboo has had deeply perverse consequences: One of the reasons why one racial minority after another has been dispossessed in post-colonial Africa - and I'm not referring to South Africa here - is because of the reluctance by Western intellectuals to explore the obvious parallels between ‘Aryanisation' and ‘Africanisation'.

There are many very nasty tendencies in human nature. Personally, I believe we should learn from history what their manifestations are, and how to recognise them. If and when they show themselves we should try to knock them on the head as hard as possible.

The truth is the principle of ‘demographic representivity' has a deeply noxious past. Before De Vos writes any more defences of its legality and why it is a political imperative, he should perhaps take a second look at its history.

On March 29 1933, shortly after its ascent to power and before most Germans had been converted to anti-Semitism, the National Socialist Party of Germany issued a series of instructions to all Party offices and Party organizations for the Anti-Jewish Boycott planned for April 1 1933. Point 1 called for party branches to immediately form Action Committees "for the practical systematic implementation of a boycott of Jewish shops, Jewish goods, Jewish doctors and Jewish lawyers."

Point 9 ordered that: "The Action Committees will immediately organize tens of thousands of mass meetings, reaching down to the smallest village, at which the demand will be raised for the introduction of a limited quota for the employment of Jews in all professions, according to their proportion in the German population. In order to increase the impact of this step the demand should be limited to three areas for the time being: a) attendance at German high schools and universities; b) the medical profession; c) the legal profession."

In his memoirs, written in 1939, the anti-Nazi dissident Sebastian Haffner noted that the violence of the boycott, and the crude propaganda directed against the Jews, did not appeal to ordinary Germans. This did not mean it was without effect, however. The depressing aspect of this initial declaration of intent, he wrote, "was that it triggered off a flood of argument and discussions all over Germany, not about anti-Semitism but about the ‘Jewish Question.'"

It soon became customary, he wrote, "to count it against the Jews if they had a respectable or intellectually valuable profession. This was treated as a crime or, at the very least, a lack of tact. The defenders of the Jews were frowningly told that it was reprehensible of the Jews to have such-and-such a percentage of doctors, lawyers, journalists, etc. Indeed, per cent calculations were a popular ingredient of the ‘Jewish Question.'"

On April 25 1933 the NSDAP gave legal effect to the numerus clausus, demanded on the first of the month, through the Law against the Over Crowding of German Schools and Institutions of Higher Learning. This stated that "in admissions, care is to be taken that the number of Reich Germans...of non-Aryan descent [i.e. Jews], out of the total attending each school and each faculty, does not exceed the proportion of the non-Aryans [Jews] within the Reich population." The ratio for admissions was set at 1,5%. And a quota of 5% was imposed on Jewish attendance at any single university or school.

The Deutsche Allgemeine Zeitung of April 27 1933 described the rationale behind the act as follows: "Allowing the presence of too high a percentage of people of foreign origin [Jews] in relation to their percentage of the population could be interpreted as an acceptance of the superiority of other races, something decidedly to be rejected."

While much Western public opinion reacted with abhorrence at the brutish and violent methods of the Nazis, their identification of the ‘Jewish problem' enjoyed wide currency. In 1937 Hendrik Verwoerd called for the introduction of legislation in South Africa to "gradually but purposefully ensure that each white section of the population should, as far as practicable, enjoy a share of each of the major occupations, according to its proportion of the white population."

Those on the Allied side were not immune to this sort of reasoning either. At the Casablanca conference of January 1943 US President Franklin D. Roosevelt proposed that, in the newly liberated territories, "the number of Jews engaged in the practice of the professions (law, medicine, etc.) should be definitely limited to the percentage that the Jewish population in North Africa bears to the whole of the North African population."

The aim of Roosevelt's plan was, apparently, to "further eliminate the specific and understandable complaints which the Germans bore towards the Jews in Germany, namely, that while they represented a small part of the population over fifty percent of the lawyers, doctors, school teachers, college professors, etc. in Germany were Jews."

I could carry on citing examples, but hopefully these will suffice. There are good and bad reasons for relaxing an outright ban on race discrimination, but the pursuit of institutional race proportionality must rank as one of the worst.

I do not know whether the principle of ‘demographic representivity', in the judiciary or elsewhere, is constitutional or not. What I do know is that it is a morally abhorrent principle, which drags behind it an odious history. What is unsettling and depressing - to use Haffner's words - is that no moral stigma is currently attached to its invocation.

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