Give back to the people their common law rights

Why politicians should stop trying to ‘develop’ the common law - "The problem of our time is not that the laws of our country are inadequate to deal with its problems; it is that we are assailed by an indigestible surfeit of them".

When Jan Van Riebeeck set foot on the shores of Table Bay on April 6, 1652 he brought with him the Roman-Dutch law that became the basis on which the entire South African legal system is built. This law originated in the law of the Roman Empire, which can be traced back to the bronze tablets on which the ‘Twelve Tables’ (the earliest documentation of customary law) were inscribed in 449 BC. Roman law was gradually absorbed into the Germanic law of Western Europe and it was this Roman-Dutch law that Van Riebeeck brought with him.

After the second British occupation of the Cape in 1806, English law began to influence the developing South African legal system. Today, Roman-Dutch law in South Africa remains a rich and growing system, greatly strengthened by the various legal traditions that constitute it, including age-old indigenous African customary law. The ‘common law’ of South Africa has therefore come to us through centuries of Greek, Roman, European, English and African experience.

What is common law?
In every generation, people have been drawn toward two desirable but widely separated and contradictory goals. The first of these is the goal of permanence, stability and certainty in legal doctrines. The second is the goal of flexibility or adaptability of the law to the social necessities of the day. The tension here is not necessarily a conflict between factions, parties or groups of people. It exists in the legal thought of every judge.

People generally accept that what was just and right in one generation should not be disturbed in the next. Permanence and stability in the law emerges from the Roman doctrine of stare decisis, or the practice of looking at precedents and authority whilst formulating a legal principle. This doctrine assumes that court decisions have been reasonable and that what was reasonable in one century will be reasonable in another, even though in the meantime the most revolutionary social and political changes may have occurred.

The Greeks, Romans, English and Africans believed in the notion of permanence in the law, imparted by its connection with immemorial custom. For them the law was not ‘made’. Rather, it was ‘declared’ or ‘discovered’ by jurists or tribal elders. This law was the ‘common law’ and was not a written code. For this reason, the principles of common law have always eluded complete embodiment in any code or collection of writings. For example, the common law principle that no one ought to be illegally deprived of their liberty may be found to be expressed in a judicial decision, a parliamentary statute or in a learned treatise on the writ of habeas corpus, but these writings merely echo the principle that exists in the form of generally accepted ‘common law’, whether ‘written’ or not.

The common law is therefore a body of ‘unwritten’ general rules prescribing social conduct, enforced by the ordinary courts and characterised by the development of its own principles in actual legal controversies and by the doctrine of the supremacy of law.

The common law adapts to changing conditions and provides certainty
The common law has survived largely because of its ability to adapt incrementally to new conditions. Judges have created precedents adding new rules to meet new social and economic circumstances. Acts of Parliament (Legislation) have contributed little to this process.

It is important to note the persistence and force in the modern world of ideas that people of the Middle Ages incorporated in the common law and which were reflected in the Magna Carta as far back as 1215. Foremost among these is the idea of the supremacy of law, a concept also expressed in such phrases as ‘the rule of law’ and ‘due process’. An essential feature of the common law system is that its principles are derived from decisions in actual cases in which judges play the principal part. Our legal tradition therefore clearly does not gravitate around legislation. The ‘discovery’ of the law, rather than its ‘making’ or ‘enactment’ in the form of parliamentary legislation, is what true law is all about. The law consequently develops in such a way that nobody in society is so powerful that he can identify his own will with that of the law of the land.

Should today’s politicians then attempt to ‘develop’ the common law by ‘making’ new law or should they rather respect, document and familiarise themselves with existing common and customary law? Apparently they should. The Constitution has been South Africa’s supreme law since 1996 and sections 8, 39 and 173 make it abundantly clear that it is the judges who are enjoined to ‘apply, protect and develop’ the common law of South Africa.

Statutes often give rise to instability and uncertainty
Whilst legislation is almost always thought of as certain, precise and recognisable, as long as it is ‘in force’, people can never be certain that it will be in force tomorrow. A legal system centred on legislation, while including the possibility that other people (the legislators) may interfere with your every-day actions, also includes the possibility that they may change their way of interfering with you tomorrow and every day thereafter. Legislation is therefore neither certain nor enduring.

Moreover, this fact is exacerbated by so-called ‘delegated legislation’ or ‘subordinate legislation’ which often changes at short notice and has the effect of circumventing parliament and of violating the division of powers enshrined in the Constitution. It places both legislative and executive powers in the hands of government officials, relying on some statutory enactment for legitimacy and enabling state interference, almost at will, with every kind of private interest and activity. It leads to the paradoxical situation of our times: that we are governed by men, not because we are not governed by laws, but because we are. Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of the tyrant who pretends to be a simple government official acting within the framework of a perfectly legal system.

This does not mean that legislation should be entirely discarded, although in excess it is largely incompatible with individual freedom, initiative and decision-making. South Africa has passed nearly 1 000 new Acts of Parliament in just 10 years to add to its existing mass of legislation. By contrast, Greek, Roman, English and African history teach us how independent of legislation those systems were and how to the ordinary people ‘the law’ meant the common law.

It is consequently no longer a question of deciding what special ‘good’ kind of legislation we should enact. It is a question of deciding whether individual freedom remains compatible with a legal system that centres increasingly on legislation when the richness of our common law is entirely adequate in almost every circumstance. Such a system suffers the same deficiencies as a centralised economy in which all the relevant decisions are made by a handful of bureaucrats whose knowledge of the whole situation is fatally limited and whose consequent actions cannot fail to show little respect for people’s wishes.

Legislation may also deliberately or accidentally disrupt the common law by nullifying existing conventions and agreements that have hitherto been voluntarily accepted and kept. The continual change of rules brought about by inflated legislation therefore prevents the successful and enduring replacement of that set of non-legislated rules (the common law) that happen to be destroyed in the process. What could have been deemed a ‘rational’ process of ‘developing’ the common law then proves in the end to be self-defeating.

The problem of our time is not that the laws of our country are inadequate to deal with its problems; it is that we are assailed by an indigestible surfeit of them.

Author: Dr Brian Benfield is the Chairman of the Executive Committee of the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.

Further reading:
* Bruno Leoni – Freedom and the Law, expanded third edition Liberty Press, Indianapolis 1991
* Arthur R. Hogue – The Origins of the Common Law, Indiana University Press 1966
* F.W. Maitland - The Forms of Action at Common Law, Cambridge University Press 1954
* W.S. Holdsworth – Sources and Literature of English Law, Oxford University Press 1925

FMF Feature Article /4 May 2004 - Policy Bulletin / 11 August 2009