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

Promotionsprojekt

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 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 as had been established by the Dutch colonisers, until the doctrine was firmly established by the end of the century. My sources include printed books on case law, which at first were produced at 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. I consider the doctrine’s development by tracing the practice of relying on past decisions within these books (including looking at changes in form, for example, the introduction of referencing techniques, editor’s additions, different ways of organising legal categories, etc.). However, I also consider 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. 

And what is the point of pulling apart the connections between the norm and its form, that is, the content of the law and its historical development 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 partly 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. First, as more case law books were published, new concerns emerged regarding, 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, and the Supreme Court’s need for consistency with its own previous decisions, often through distinguishing a previous case from the one being decided upon. 

Second, over a period of just 20 years, what we see is not only the establishment of the doctrine of precedent with respect to the 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. This is also evidenced in the way counsel and judges argue, in progressively more cases, that Roman Dutch principles are commensurable with the English law. The extensive use of Roman Dutch authority in the cases is not surprising considering the policy adopted by the British that “the inhabitants of territory acquired by cession or conquest are governed in their relations inter se by the municipal laws of such territory in force at the time of cession or conquest…”. But, on the other hand, it gives rise to the question of when exactly Roman Dutch law became conventional in the Cape. I hope to provide an answer to this question using the material perspective that I take here.

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) affected the development and establishment of stare decisis and also enabled the localisation of the law in the Cape of Good Hope.