How books make law. The material production of the doctrine of precedent in the Cape of Good Hope in the nineteenth century


Law is found in books, but my thesis considers how books make law. My question can be formulated simply: how did the development of the legal doctrine stare decisis in the Cape of Good Hope in the nineteenth century depend on the publication of case law books? 

Stare decisis, the doctrine of precedent, is both a rule of law and a practice which gives authority to past judgments handed down by the court. Once a court has laid down certain principles of law in a case, the court must abide by those principles in all future decisions. 

I consider the development of stare decisis in the Cape of Good Hope from the first half of the nineteenth century, a period when English common law practices and principles began infiltrating the legal system established by the Dutch colonisers, until the doctrine was firmly established in 1880. My sources include printed books on case law, which were largely conducted at the initiative of individual lawyers and judges either relying on their own manuscript notes of the cases they were involved in or through piecing together the Supreme Court records, written notes of the Master and other judges of the Supreme Court, and newspaper reports of the cases. But I not only consider the doctrine’s development by looking at the content of these books (including changes in the organisation of information, referencing techniques, editor’s additions, etc.), but also the book history of these early publications. In this way, the evident but yet to be examined connections between the recording of cases in a book, the practice of relying on previously decided cases, and the ultimate establishment of this practice as a legal doctrine, are pulled apart. 

But what is the point of pulling apart the connections between the norm and its form, that is, the content of the law from the medium in which it was made concrete? My perspective is prompted by António Manual Hespanha’s article, Form and content in early modern legal books, which was inspired by Walter J. Ong. These authors have shown how form (that is, the structures and affordances of printed text) is reflected in and has an effect on (legal) thought. A focus on the material forms of law is a way to understand normative knowledge production, in this case, to understand how humans interpret and create law. I am therefore concerned with a question of legal historical epistemology.

A few preliminary observations can be mentioned at this stage. Firstly, as more case law books were published, new concerns emerged regarding, for example, the accuracy of reporting, better citations, the formalisation of referencing systems (such as headnotes and indexes), the reliability of manuscript notes versus printed works when referencing past decisions, the courts’ need for consistency with its own previous decisions, often through distinguishing a previous case from the one being decided upon. 

Secondly (and this is also evidenced in the way counsel and judges increasingly argue that Roman Dutch principles are commensurable with the English law), over a period of just 20 years, what we see is not only the establishment of the doctrine of precedent with respect to the Cape Supreme Court’s own previous decisions. What also becomes obvious is that numerous Roman-Dutch writers and legal principles are used in argument and in the reasoning of the judgments.

With this project, I aim to contribute to the scholarship on the material production of normativity by showing how the publication of books that recorded cases (which could be more easily disseminated and handled) influenced the establishment of stare decisis and also enabled the law to established its localised form within the context of the Cape of Good Hope.

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