Friday, February 12, 2010

The Constitution and the common law

Since I will hopefully be making a number of posts on my thesis in the next year I thought I should give a brief introduction to the issue I will be examining in it.

The South African Constitution, unlike many other constitutions in the world, expressly states that it applies horizontally. Normally constitutions set out the rights of people against the state. Traditionally such rights could be the right to bodily integrity, the right to private property or the right to freedom of expression. It was understood that these rights existed against the state but not against people in their personal capacity. So the state can't torture people, seize their property without proper grounds or censor the media.

The South African Constitution dramatically departs from this way of seeing a constitution. Section 8(2) of the Constitution states that '[a] provision of the Bill of Rights binds a natural or a juristic person...' Now this may not appear to be that dramatic. It is unlikely anyone thinks that torturing your neighbour is permissible or that stealing from them is acceptable. However, the SA Constitution has rights that extend beyond these negative rights to include the right to housing or the healthcare. Its far from clear that most people would accept that they have an obligation to help their neighbour get a house. Fortunately the constitutional drafters recognized that this would be an issue so the above quoted section read as a whole states '[a] provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.' So, the potentially onerous task of having the obligation to respect your fellow citizens' rights is mitigated by the constraints of the nature of the right and the nature of the duty imposed by the right. Obviously, there is still the difficulty of determining which rights private persons should respect and the extent to which they should give effect to those rights. That will have to be the subject of a future post.

The Constitution continues on to state that 'in order to give effect to a right in the Bill, [courts] must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right'. What this reflects is the principle of avoidance. That is, courts should avoid giving effect directly to the constitution but should rather develop rules (the common law) that indirectly give effect to the Constitution. The common law is composed of a number of uncodified sources including previous judicial decisions, old Dutch authors (including the author Voet who has lent his name to this blog), custom and other sources. This body of law deals with things such as marriage, harms (both criminal harms and private harms called delicts/torts), contracts, and wills. So, the Constitution is instructing judges to develop this body of rules so that private individuals can manage their behaviour so that they give effect to the rights of others.

I wish to examine when courts may or must change the existing common law rules. Building on this, I wish to examine what the courts should change the law to once they've elected to change it. The Constitution gives some guidance on both questions.

It is clear that if a particular rule violates a right in the bill of rights it must be changed (unless the rule legitimately limits the rights of others). This is what is discussed above. However, the Constitution also recognizes that courts have a more general power to develop the common law, taking into account the interests of justice. So, a rule may not conflict with the Bill of Rights but courts may nevertheless elect to change the rule. For instance, with all the changes stemming from the internet courts may find existing common law rules outdated and need to change them. There are some interesting questions around when courts should exercise this broad discretion (if indeed they have any discretion in the matter).

The Constitution also provides some guidance as to how a court should proceed once it has elected to change the law. It states 'when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.' I am interested in examining what promoting the spirit, purport and objects of the Bill of Rights would constitute. I want to look at how those values interact with other important considerations (like commercial concerns or ethical concerns not reflected in the Constitution).

Anyway, this has been a long post but hopefully it gives some introduction to what I will be writing about this. Please let me know if I am explaining things unnecessarily or not explaining enough legal jargon.


  1. Dave. Guess what, the Constitution exists. And its here to stay. And its going to help communists take over the world.

    Watch this space for a competing blog that will go up called 'omg' (ohmygrotius).

  2. Thanks for the explanation of 'vertical' versus 'horizontal' applicability of a constitution. I hope you'll continue to write articles that us laypeople can understand!