Localising norms in the material
My research project takes a material perspective on the production of legal norms in the Cape in the 18th and 19th centuries. Specifically, this project aims to understand how the practice of reporting case law formed and introduced the English doctrine of precedent into a localised Roman-Dutch legal system, how this differed to the materialising practices before the British arrived in 1795, and how such a material perspective on the production of norms, as an example of legal historical epistemology, could give us insights into the impact of digital media on the law.
South Africa’s hybrid legal system serves as an historically interesting case study. The Dutch East India Company established a trading post at the Cape in 1652. In 1795, the Cape was ceded to the British. After relinquishing the Cape back to the Dutch, the British occupied it again in 1805. These events did not, however, result in the replacement of the Roman-Dutch legal system with the English common law. Nevertheless, the intention to introduce British legal customs and processes was evident. In 1827, the British passed the First Charter of Justice, creating a professional judiciary, and on 1 January, 1828, the Supreme Court of the Colony of the Cape of Good Hope was established. Considering the early stages of law reporting of the Supreme Court decisions is the first point of enquiry from which I attempt to explain at least one aspect of this process of anglicisation.
Underlying this point of enquiry is a theoretical hypothesis: new media or technology affects, to a larger or lesser extent, the way people go about their work. This change in practice produces new or redefined understandings of that work. Thus involving a self-reflexive process of practice and understanding of that practice (or practice and norm). For example, the gradual introduction of law reporting was itself constitutive of the practice of relying on past decisions, as much as the process of establishing the common law norm of judicial precedent impelled the reporting of its cases. So law reports both affected legal practice and, at the same time, caused lawyers to understand these practices as already part of the broader legal framework (which thus compelled them to repeat the practice). In this way, a localised legal system constructed out of the continental ius commune could become increasingly anglicised.
A possible route to understanding this process and, specifically, the connection between practice and norm is to focus on the materiality of the introduced media that incites the new practice in the first place. Thus, my research will consider questions on how the law reports of the Supreme Court circulated, disseminated and who had access thereto; how did they represent, modify or translate the information they were produced to convey; what is the relationship between the media and its signs (or the work and the text, to recall Barthes); what conditions established the material form and its meaning? In addition, a comparison with the legal practice in the Cape before 1795 should reveal how processes localising Roman-Dutch law differed from those of the British. Such questions contribute to an understanding of the epistemologies, from an historical perspective, of norm production which may well be relevant to the media revolution today.