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THE INFLUENCE OF HUMAN RIGHTS ON PRIVATE COMMON LAW

ALISTAIR PRICE* Research Student, Gonville and Caius College, Cambridge University; Senior Lecturer, Department of Private Law, University of Cape Town
This article presents a theoretical and comparative analysis of the inuence of human rights on the private common law. First, it analyses the different ways in which human rights could, in principle, affect the adjudication of private law claims, distinguishing six forms of inuence, giving examples. It then contrasts South African law against English law, explaining that, while we require constitutional rights to inuence judicial development of the common law, comparable inuence is merely permitted in England under the Human Rights Act. The argument is then made that, from a theoretical perspective, the content of such inuence is highly contingent, turning on several features of a legal and political system, and so could vary among systems and within one system over time. Nevertheless, permitting or obliging this inuence is of some value, because it has the potential to endow the normative judgements underpinning the common laws development by judges with a measure of legitimacy that they might otherwise lack. Finally, signicant differences in South African and English constitutional arrangements, human-rights provisions, and socio-economic and political contexts suggest that the inuence of human rights will be greater in South Africa. The clearer understanding yielded by this articles theoretical and comparative analysis places us in a better position to engage in more concrete debates about how particular constitutional rights and values should inuence particular areas of private law in South Africa in the future.

I INTRODUCTION The debate about the proper relationship between constitutional rights and private law in South Africa rumbles on.1 A range of views have been advanced. At the risk of oversimplication, we may say that at one extreme is the argument that private law should be radically transformed to bring it into line with and to promote constitutional rights and values; at the opposite extreme is the argument that private law should be wholly or largely insulated from constitutional inuence. These competing positions are often associated, at least instinctively, with competing political outlooks: are we progressives, seeking to reinvent private law, or are we conservatives, preferring to stick to tradition? Or are we something in between? Arguing about how constitutional rights ought to affect private law at that very broad and abstract level is of limited value. Instead, it is likely to be more
* BBusSci LLB (UCT) BCL (Oxon). I am grateful to my PhD supervisor, Professor C F Forsyth, and Michael Bishop for helpful comments on an earlier version of this article. 1 Two recent contributions are Anton Fagan The secondary role of the spirit, purport and objects of the Bill of Rights in the common laws development (2010) 127 SALJ 611, and Dennis Davis How many positivist legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan (2012) 129 SALJ 59. See also Franois du Bois Social purposes, fundamental rights and the judicial development of private law in Donal Nolan & Andrew Robertson (eds) Rights and Private Law (2011) 89.

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protable to focus on the relationship in more discrete, concrete contexts. For example, in what ways should family law be reformed in the light of the right to equality? Should the rights of children affect the standard of care that they must live up to under the law of delict or the quantication of delictual damages payable to or by them? Does the law of property sufciently take into account the right to have access to adequate housing? Does it make a difference whether the person seeking to enforce a contractual power is an organ of state? Should private companies be able to sue in defamation for non-pecuniary harm to reputation given that they are not bearers of human dignity? And so on. As soon as we focus our analysis at a more concrete level, it immediately becomes clear that the relationship between constitutional rights and private law generates a host of different practical and theoretical issues in different contexts. Consequently, it is surely very difcult to justify adopting a monolithic attitude to this whole area. Nevertheless, before taking up arms in any particular skirmish, it is worthwhile to stand back and survey the wider battleeld. That is the purpose of this article. It does so by presenting a theoretical and comparative analysis of the inuence of human-rights norms on the private law of obligations and property. Its primary focus is the relationship between human-rights and common-law adjudication; that is, the articulation, development and application of common law rules and principles by judges. Legislation is merely of secondary concern. I also contrast South African law against English law. England is a worthwhile comparator for two reasons. First, English law and legal culture played an important role in the evolution of our own legal system in the past. Many English legal concepts have been woven into our common law, and English judgments are regularly cited by our courts.2 Secondly, the UK Parliament recently enacted the Human Rights Act, 1998 (the HRA). Consequently, English courts,3 like our own, now have to grapple with human-rights law, including the tricky problem of its relationship with private common law. Since South Africa and England seek to solve a shared problem using similar tools, a comparison will help us to understand both the problem and the tools more clearly. The article is structured as follows. Part II analyses the different ways in which human rights norms could, in principle, inuence private law adjudication, in an attempt to clarify and simplify this complex area. I then demonstrate that South African law requires, whereas English law merely permits, human-rights norms to inuence judicial development of the private common law. Part III examines, in more detail, the nature of the

2 See, e g, The Hon O D Schreiner The Contribution of English Law to South African Law: and the Rule of Law in South Africa (1967) 570. 3 I do not consider the law of Scotland, Wales or Northern Ireland, because different legal frameworks give effect to human rights in these jurisdictions: see the Scotland Act, 1998; the Government of Wales Act, 2006; and the Northern Ireland Act, 1998. It should be noted that the UK Supreme Court (like the erstwhile Appellate Committee of the House of Lords) is not simply an English court.

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judicial development of the private common law under the inuence of human rights. I argue that subjecting the development of the common law to huma-rights norms has value in itself, but also explain that from a theoretical perspective the content of that inuence is highly contingent. Finally, part IV compares South African and English law in more detail, focusing on important constitutional and contextual differences between the two systems. Having gained a clearer understanding of the inuence of human rights on private common law by way of a theoretical and comparative investigation, we shall then be better equipped to return once more to concrete debates about what inuence particular constitutional rights should have on particular areas of private common law in South Africa. II THE VARIOUS FORMS OF INFLUENCE OF HUMAN RIGHTS The relationship between human rights and private law is multi-faceted and gives rise to a host of more or less connected issues in different contexts. This part, therefore, attempts to sharpen the focus of this enquiry by explaining what I mean by a human-rights norm and by providing an analytical framework of the different ways in which human-rights norms could, in principle, inuence private law adjudication. (a) Categories of human rights and human rights norms At least three kinds of human right can be distinguished. First there are non-enacted, moral human rights; that is, human rights as used in ethics and political philosophy. Scholarly debate continues about the existence, content and justication of such rights,4 which are inevitably controversial. Secondly, there are international legal human rights; that is, human rights as used in public international law, predominantly found in global5 and regional instruments.6 Thirdly, and nally, there are domestic legal human rights; that is, human rights enacted as part of a domestic legal system. These may take a variety of forms and may be enforced in a variety of ways. Typically, either they are enacted as part of an entrenched constitutional document, conceived of as supreme law in a legal system, and are hence often referred to as constitutional rights (as in the Amendments to the US Constitution, the Canadian Charter of Rights and Freedoms, the German Basic Law, and the South African Bill of Rights), or they are enacted in ordinary legislation (as in the New Zealand
4 Recent contributions include Michael J Perry Towards a Theory of Human Rights (2007); James Grifn On Human Rights (2008); Charles R Beitz The Idea of Human Rights (2009); William Twining Human Rights, Southern Voices (2009); and Ronald Dworkin Justice for Hedgehogs (2010) ch 15. 5 For example, the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1976), and the International Covenant on Economic, Social and Cultural Rights (1976). 6 For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1969), and the African Charter on Human and Peoples Rights (1981).

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Bill of Rights Act, 1990 and the UK HRA).7 Such statutory human rights can also be considered constitutional rights if the legislation in which they are enacted is accepted as forming part of a domestic legal systems constitution.8 Since my topic is how private law adjudication in domestic legal systems can be inuenced by human-rights norms, I am primarily concerned with domestic legal human rights whether constitutional or not for these are the rights that domestic courts are usually bound to apply. I say primarily because the judicial interpretation and application of domestic human rights can, in turn, be inuenced by beliefs and theories about moral rights9 as well as by international legal human rights. Two examples of the latter kind of inuence are s 39(1)(b) of the South African Constitution, which provides that [w]hen interpreting the Bill of Rights, a court . . . must consider international law, and s 2(1)(a) of the UK HRA, which provides that:
A court . . . determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights . . . so far as . . . it is relevant to the proceedings in which that question has arisen.

This international-on-domestic inuence can vary in strength, and I return to discuss it below in the particular context of English and South African law.10 I have on several occasions referred to domestic legal human-rights norms.

7 A third category in domestic law is common-law fundamental rights: see The Right Hon Lord Woolf, Jeffrey Jowell & Andrew Le Seuer (eds) De Smiths Judicial Review 6 ed (2007) paras 1-106, 5-036 and 11-030. In both English and South African law, on occasion the courts accepted certain common-law rights as fundamental in the sense that it was presumed that Parliament did not intend to infringe them unless the wording of the relevant statute made it clear that no other conclusion was possible: R v Secretary of State for the Home Department ex p Simms & OBrian [1999] 3 WLR 328 at 3412; Attorney-General, Eastern Cape v Blom 1988 (4) SA 645 (A) at 662FG. I do not consider common-law fundamental rights in any detail, because they were largely developed before the enactment of human-rights instruments in England and South Africa and have been largely superseded by those enactments: Watkins v Home Secretary [2006] 2 AC 395 para 64 (per Lord Rodger). 8 In English law, for example, a statute becomes part of the constitution when the courts hold that it is immune from the doctrine of implied repeal: Vauxhall Estates v Liverpool Corp [1932] 1 KB 733; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590; Thoburn v Sunderland City Council [2002] QB 151 at 1867 per Laws LJ; Jackson v Attorney General [2006] 1 AC 262; John Gardner Can there be a written constitution? (2011) 1 Oxford Studies in Philosophy of Law, 162 at 1656. This is true of the HRA. For if legislation is passed that conicts with a Convention right, the HRA (or relevant part thereof) is not impliedly repealed; instead it remains in force and the incompatibility is formally declared. 9 Domestic courts occasionally cite the writings of legal, moral, and political philosophers to support their reasoning; for an account of South African courts reliance on the theories of Ronald Dworkin, see Franois du Bois (ed) The Practice of Integrity (2004) xiiixiv. 10 See part IV below.

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This broad term signies, compendiously, (i) the human rights themselves, (ii) the duties they justify, which are owed to the right-holders by those bound by the rights, and (iii) the values and purposes served by those rights and their corresponding duties. The distinction between rights and the values they serve is a reection of the ambiguities in the terms right, Recht and ius (eg compare does she have the right to an abortion? with what is the right thing to do?), and is of some historical pedigree. In Western medieval legal and moral thought, the word ius was used to signify the notion of objective right or, more roughly, the whats right or the fair, as used in sentences like it is right that promises be kept or it is right that there be a Palestinian state.11 The notion of a subjective right the idea of a normative state of affairs but relating it exclusively to the beneciary,12 emphasising the right-holder and his or her entitlement in relation to objects or people emerged only later in the writings of Francisco Suarez, Hugo Grotius, Thomas Hobbes, John Locke and others.13 Yet the distinction is not merely of historical or theoretical interest; it is also of express doctrinal importance in various legal systems. For example, the German Federal Constitutional Court has held:
The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system [eine objektive Wertordnung] which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the legislature, executive and judiciary.14

The South African Constitutional Court has explicitly transplanted the idea of an objective normative value system into South African law,15 while in England Sedley LJ remarked in 2008 that [t]here is . . . an unanswered question as to how, if at all, the common law . . . is to develop in response to the Human Rights Act and Convention values it imports.16 So there is a need to attend to both rights and duties on the one hand and the values that they are intended to serve and promote on the other hand.
11 John Finnis Natural Law and Natural Rights (1980) 20610; William A Edmundson, An Introduction to Rights (2004) 89 (where these examples are provided). The precise nuance of the word ius in Roman legal thought, however, remains a matter of scholarly controversy. 12 Finnis ibid at 207. 13 Ibid. 14 BVerfGE 39, 1 para 41 (translation from the original German, emphasis supplied). Thus, Robert Alexy draws a distinction between human rights as subjective rights and objective law in A Theory of Constitutional Rights (2010), xxiiixxviii (Introduction by Julian Rivers) and 3524. 15 Carmichele v Minister of Safety and Security & another 2001 (4) SA 938 (CC) para 54. 16 Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39 para 24 (emphasis added). In Redmond-Bate v DPP (DC) (2000) HRLR 249 para 10, he asserted, more strongly, that it is now accepted that the common law should seek compatibility with the values of the Convention in so far as it does not already share them.

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(b) An analytical framework So how, in principle, could domestic legal human-rights norms inuence private law adjudication? That question is best answered by rst considering, more broadly, the forms of their application in the context of any law, whether public or private. In a legal system committed to democracy and comprising (at least) legislation, common law (ie non-enacted, judge-made law) and domestic human-rights norms in some form,17 one can start by distinguishing at least four possible forms of such application. The rst is the imposition on a defendant of a duty based directly and solely on a human right: that is, the creation of a novel, stand-alone cause of action. If the right is contained in a constitution, it is a constitutional cause of action; if it is merely statutory, the cause of action too is statutory. Such a duty stands alongside, and exists wholly independently of, all other commonlaw or statutory duties binding the defendant. For example, if the defendant is the state, it may owe negative duties not to torture, injure or kill citizens based on rights to life, bodily integrity, and freedom from torture. It may owe negative duties not to discriminate unfairly on grounds of race, gender or religious belief, based on the rights to equal treatment and freedom of religion. It may owe a positive duty to provide primary schooling based on the right to education. Such duties require or prohibit certain acts, omissions, policies, practices or decisions by public bodies. Private defendants, on the other hand, could also be subject to similar stand-alone requirements and prohibitions. For example, they might owe negative duties not to imprison others against their will, based on the right to freedom and security of the person. Parents could owe positive duties to their children based on the childs right to basic nutrition and shelter. Such human-rights-based duties bind public and private persons, one could say, to act compatibly or consistently with human rights by performing the duties they justify. The second form of application is based on a requirement that other legal rules and principles be consistent or compatible with human rights, which are conceived (in some sense) as higher than or superior to the former ordinary laws. The consequences of inconsistency or incompatibility, however, may depend on whether the impugned, ordinary law is statutory or judge-made, and may differ from legal system to legal system. Consider judicial review of primary legislation for consistency with human rights. (Legislation, of course, is an important source of law in both public and private law.) In German, Canadian, American and South African law, for example, particular courts are empowered to invalidate legislative provisions that are inconsistent with a human right. Sometimes courts have further remedial powers to sever words from, or read words into, offending statutory provisions, or to order the legislature to amend the offending law within a
17 South African and English law converge to that extent, but they diverge, e g, in so far as the former system includes customary law while the latter includes European Union law. I shall not explore the complexities generated by these additional sources of law.

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certain period. In English law, on the other hand, although courts are also empowered to declare provisions of primary legislation to be incompatible with a Convention right, those provisions retain their legal validity; instead, a fast-track amending procedure is triggered which ensures that the ultimate decision whether or not to retain the impugned legislation remains with the democratically-accountable branches of the state. An example of this form of application would be a judicial declaration that statutory provisions which confer benets on married persons, but which dene such persons in a manner that excludes gay and lesbian life-partners, are inconsistent with a human right against unfair discrimination. But if legislative provisions can be tested for consistency or compatibility with human rights, then in principle the same must be true of common-law rules, whether part of public law (eg a common-law criminal offence; a common-law rule of administrative law; etc) or private law (eg a commonlaw rule of contract, property or delict). And since common-law rules are judge-made, some courts (depending on local doctrines of precedent) could in principle have the power to alter offending common-law rules to ensure compliance with the relevant human rights. The undemocratic character of judicial alteration of legislation is not shared, at least to the same degree or in the same way, by judicial development of common-law rules.18 Of course, exactly when it would be appropriate for judges to exercise this power would turn on a host of context-sensitive considerations (eg the inappropriateness of judges altering the denitions of criminal offences; the need not to contradict or frustrate the purposes of relevant statutes and other commonlaw rules and principles). A court might also have the legal power to order the legislature to decide how best to ll the common-law lacuna by way of legislation. An example of this form of human-rights application would be a courts declaration that the absence of a common-law cause of action in delict to claim compensatory damages from a person who has negligently published anothers condential medical records violates the latter persons right to privacy, and its consequent decision to develop a novel delictual claim in order to secure consistency between the human right and the common law. Thirdly, human rights can inuence statutory interpretation in various ways. Courts may have a duty to interpret legislative provisions, so far as their language will permit (itself a reasonably-contestable threshold), in order to avoid incompatibility with a human right or (somewhat more vaguely) in order to serve or promote human-rights values. In English law, for example, before the HRA came into force, rights under the European Convention on Human Rights (ECHR) could only be invoked by the courts in order to resolve an ambiguity in a legislative provision,19 whereas it was assumed that Parliament did not intend to enact statutory rules that infringed commonSee, e g, Neil MacCormick Legal Reasoning and Legal Theory (1978) 173. Salomon v Commissioners of Customs & Excise [1967] 2 QB 116 at 143 (per Diplock LJ); R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 at 7478 (per Lord Bridge).
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law fundamental rights unless the clear statutory wording made no other conclusion possible.20 Section 3 of the Human Rights Act now provides that [s]o far as it is possible to do so, primary legislation . . . must be read and given effect in a way that is compatible with Convention rights, a provision that aligns the interpretative inuence of Convention rights with the historical role of common-law fundamental rights.21 (Of course, if it is not possible to read legislation compatibly with a Convention right, then a declaration of incompatibility must follow.) A similar rule is contained in s 39(2) of the SA Constitution, which provides that [w]hen interpreting legislation . . . every court . . . must promote the spirit, purport and objects of the Bill of Rights. Evidently, these interpretative duties could apply to all legislation, whether in public or private law. An example of such interpretation would be a choice to construe the term spouse, in a statutory provision that confers benets on married persons, to include gay and lesbian life-partners in order to ensure its compatibility with the right against unfair discrimination.22 A fourth form of human-rights application is judicial development of common-law rules, not in order to ensure consistency or compatibility with a human right, but instead to promote or serve human-rights values. For example, s 39(2) of the South African Constitution provides that when developing the common law . . . every court . . . must promote the spirit, purport and objects of the Bill of Rights. Given that human rights are intended to serve certain values, the activity of ensuring consistency with those rights certainly overlaps with the activity of promoting those values (and the latter activity surely requires courts, at a minimum, to perform the former). But it is also possible to serve or promote human-rights values in ways that are not necessarily required by the rights themselves. The difference, of course, would depend on the precise content of the relevant right (which in turn would depend on its wording and how the courts have interpreted it). For example, imagine that a legal system, whose common law of contract prohibits the sale of human tissue as contrary to public policy or public morals, adopts a human-rights instrument which provides that everyone has the right to freedom and security of the person. In principle, a court could decide to uphold the validity of a sale of a kidney or limb, concluded freely and voluntarily, by relaxing the common-law prohibition (ie altering a common law rule or principle) in order to promote the values of liberty, autonomy or freedom of choice values that are undoubtedly served by the human right in question. On the other hand, that human right surely did
See note 7 above. R v Secretary of State for the Home Department ex p Simms & OBrian supra note 7 at 3412 (per Lord Hoffmann). 22 Another, more complex example would be to interpret a legislative provision narrowly in order to enable the application of a common-law rule or principle that Parliament had intended to replace or alter, because, in the interpreting courts view, the residual common law better promoted a relevant human-right value. I am indebted to Michael Bishop for this point.
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not necessarily require this particular development of contract law. (Of course, it may have been possible for a court to interpret the right itself to require such a development, in which case the decision would have amounted to ensuring consistency with the right as opposed merely to promoting the relevant values. The point remains, however, that there is a distinction between these two different kinds of judicial reasoning.) So, to sum up the discussion thus far, in principle human-rights norms could inuence private-law adjudication in at least the following ways (each of which could operate as a sword or a shield): Type 1: A court could impose a novel, stand-alone duty, justied by a human right, on a private defendant (or a public defendant bound by private law), alongside all its other common-law and statutory duties. Type 2: A court could declare that a private-law legislative provision is inconsistent with a human right and, depending on its remedial powers, may also be able to invalidate the provision, alter it by severing or reading-in words, and/or require the legislature to repeal or amend it. Type 3: A court could interpret a private-law legislative provision, so far as its language permits, to ensure that it is consistent with a human right, or to promote or serve human-rights values. Type 4: A court could develop (ie abolish, create, alter) a private commonlaw rule or principle to ensure that it is consistent with a human right, or to promote or serve human-rights values. This analytical framework helps to clarify our enquiry in various respects. In particular, it highlights the distinction between (i) human rights regulating conduct directly (Type 1) and (ii) human rights inuencing the content of ordinary legislation and judge-made common law, and thus regulating conduct indirectly (Types 2, 3 and 4).23 It also highlights the distinction between (i) ensuring consistency or compatibility with human rights (Types 1, 2, 3 and 4) and (ii) promoting human-rights values (Types 3 and 4) a distinction of particular relevance to the judicial development of the common law. On the other hand, this framework leaves unresolved further classicatory problems that legal systems might face. I shall mention three. First, consider the distinction between legal rules and rulings. A ruling is an applied legal norm, established by court order following a rule or principles application to a set of facts, that binds only the parties before the court (whereas the rule itself binds all persons falling within its terms).24 Should a legal system pay attention to
23 I have sought, here, to avoid the terminological confusion that sometimes aficts discussions about direct and indirect application. A similar point is made by Franois du Bois in Sources of law: Overview and Constitution in Franois du Bois (general ed) Willes Principles of South African Law 9 ed (2007) 40. 24 The difference is reected, e g, in the distinction between the doctrine of res judicata (which concerns rulings) and the doctrine of stare decisis (which concerns rules). The distinction was recently illustrated in Le Roux & others v Dey 2011 (3) SA

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whether its rulings, as distinct from its rules and principles, also comply with human-rights norms? If so, then it becomes possible for a court to conclude that a particular legal ruling violates a human right, while at the same time holding that (or leaving open whether) the law itself, the application whereof yielded the ruling, does not. Take, for example, the common-law rule of delict that teachers owe children at school a legal duty to take reasonable positive steps to ensure their safety from physical harm.25 An appellate court could, in principle, accept that the common-law rule is wholly consistent with all relevant human-rights norms, but nevertheless hold that a trial courts ruling that the legal duty was not breached on certain facts was inconsistent with the injured childs human rights to be protected from maltreatment, neglect or abuse or insufciently promoted the human-rights value of freedom from violence. Other examples are provided by the courts remedial discretionary powers in private litigation: rulings granting or refusing interdicts, specic performance, or general damages could also be tested against human-rights norms. But if such trains of reasoning are intelligible, then we must add: Type 5: A court could apply a private common-law rule or principle, which itself complies with all relevant human-rights norms, so as to ensure that the ruling it generates in a particular case is itself consistent with a human right or sufciently promotes human-rights values. And, in principle, the same must be true of statutory provisions: Type 6: A court could apply a private-law legislative provision, which itself complies with all relevant human-rights norms, so as to ensure that the ruling it generates in a particular case is itself consistent with a human right or sufciently promotes human-rights values. Now consider a second, more concrete problem. Imagine a challenge, on the ground of the human right against unfair discrimination (and/or the corresponding value of equality), to a term of a private contract, will or trust document that differentiates between persons on grounds of race. Should a legal system characterise this as (i) the allegation that the private defendants conduct breached a duty based solely on the human right (Type 1), or (ii) a human-rights challenge to the underlying legal rules and principles, whether statutory or judge-made (eg freedom of contract; freedom of testation; freedom to dispose of ones property as one sees t; the limits of rules prohibiting unfair contract terms or prohibiting unjust discrimination more broadly), which seemed to permit the term (Types 2, 3 and/or 4), or (iii) an argument that the legal duties owing from the term, which bind only the relevant private parties, would amount to legal rulings that themselves would
274 (CC) paras 153 and 16273, where Froneman and Cameron JJ noted that they agreed with the exposition of the law of defamation by Brand AJ but disagreed with his nding that the publication in question was defamatory. So, different rulings were generated by applying the same rule. 25 Hawekwa Youth Camp & another v Byrne 2010 (6) SA 83 (SCA) para 25; Phelps v Hillingdon London Borough Council [2001] 2 AC 619 at 670.

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violate the human right against unfair discrimination, independently of the underlying legal rules (Types 5 and/or 6)? This example illustrates the complexity of the classicatory issues that confront legal systems. Of course, the best approach would depend, to a signicant degree, on the detail of the particular legal system in question. Thirdly, consider also the difculties that arise from the idea that the courts are bound by human rights (as opposed to legislative and executive bodies of government, which may or may not be bound in their own right), as is explicitly provided by the UK HRA and the South African Bill of Rights.26 This cannot mean merely that judges have a duty to apply human-rights laws, for it is axiomatic that they are bound, by virtue of their judicial oaths of ofce, to apply the law, including domestic human-rights laws. So it must mean something more. In the rst place, it could mean that the courts own procedure and practice (eg the exercise of evidential, procedural and remedial discretion) must comply with the human rights of access to courts, to a fair trial, privacy, free speech and so forth. But it could also extend further so as to affect the substantive law applied by courts adjudicating private disputes, possibly permitting or obliging any of the six forms of inuence that domestic legal human-rights norms could, in principle, have on adjudication. So by itself the idea that courts are bound by human rights resolves very little. This analytical framework and the classicatory difculties it generates, highlight the fact that those legal systems that are committed to democracy and recognise (at least) legislation and judge-made law as distinct legal sources face a series of choices about how to structure the relationship between private law and human-rights norms. Different legal systems could permit or oblige different forms of human-rights inuence on private-law adjudication by courts. These choices could be explicitly provided for in the constitutional or legislative instrument that enacts human rights in a given legal system. On the other hand, if the instrument is unclear on this point, the courts will then have to dene their own powers, permissions and duties in this regard. (c) Human rights and the role of the state in private law How a legal system chooses to structure the relationship between its private law and human-rights norms may, in turn, be affected by its conception of the basis of that relationship. There are at least two distinct (although possibly overlapping) conceptions. One holds that the private-law inuence of human-rights is justied, fundamentally, by the fact that the state should owe duties to prevent private persons violating one anothers human rights. The other holds that this inuence is justied by the fact that private persons themselves should owe duties not to violate one anothers human rights (whatever the states duties may be).

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HRA, s 6(3)(a); SA Constitution, s 8(1).

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Take the right against racial discrimination. According to the former conception, the state as law-maker, law-adjudicator and law-enforcer owes, alongside its negative duty not to discriminate on racial grounds itself, a further negative duty not to be complicit in racial discrimination among private persons, together with a positive duty to protect persons against racial discrimination. These duties could be performed in various ways, including by enacting legislation and/or by judicial development of the common law. For example, the state could perform its duty to avoid complicity in racial discrimination by refusing to make the coercive machinery of contract law available to enforce racist contract terms, while the duty to take steps to protect people from racial discrimination could be performed by enacting and enforcing delictual, criminal or regulatory prohibitions of racial discrimination. According to the second conception, however, human rights should be understood to impose duties on private persons, whatever the states duties may be. So, private parties should owe one another duties not to discriminate on racial grounds and, for that reason, the state is justied in enacting and enforcing laws to that effect. The former conception may seem attractive because it appears to be consistent with the traditional idea that the purpose of human rights is to limit and control the state, although it seeks to extend this idea into the realm of private relations. It is also the conception most appropriate to international law, which binds (with limited exceptions) only nation-states. Consequently, it has been adopted by the European Court of Human Rights when applying the ECHR: because only member states are bound by the Convention rights, applicants must characterise their claims in Strasbourg as a failure by the defendant state (including its courts) to secure their rights, in breach of art 1.27 The latter conception, in contrast, appears more radical, because it seems to reconceive the purpose of human rights entirely and, therefore, potentially to justify a far-reaching revision or reinvention of traditional private-law doctrines. Of course, legal systems need not explicitly adopt one conception over the other. Moreover, overlap is possible: in principle, one could, for example, argue both that private parties should owe one another duties not to discriminate racially on the one hand, and that the state should owe independent, positive duties to persons to protect them from racial discrimination by others on the other which could, together, justify altering private-law legislative rules and/or the private common law. (d) Shared features of English and South African human rights law The foregoing discussion has claried some of the key choices faced by the architects of human rights law in England and South Africa regarding private
27 ECHR, art 1: The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms dened in Section 1 of this Convention. See, e g, Airey v Ireland (197980) 2 EHRR 305 paras 312; Marckx v Belgium (1979 80) 2 EHRR 330; Guerra v Italy (1998) 26 EHRR 357.

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law. The human rights instruments adopted by these countries the UK HRA and the South African Constitution differ in signicant respects, as do their respective constitutional and political contexts. These differences are examined below.28 But at least in three crucial respects, the choices made by the two legal systems coincide. First, as has already been pointed out, courts in both legal systems are obliged to interpret and apply legislation (including private-law legislation), so far as its language permits, in manner that is consistent with human rights.29 In other words, in the terminology of the analytical framework advanced above, both legal systems are committed to Type 3 inuence.30 Secondly, if it is not possible to read a statutory provision in harmony with a relevant human right, both sets of courts are empowered to engage in Type 2 application; that is, to declare the provision inconsistent or incompatible with the human right in question, although their remedial powers in this regard differ.31 Thirdly, and more importantly for our purposes, both legal systems envisage the inuence of human-rights norms on the judicial development of the private common law; that is, both legal systems are also committed to Type 4 inuence. To some this claim may seem controversial, but it is not. First consider the South African Constitution. As already mentioned, s 39(2) thereof provides that when developing the common law . . . every court . . . must promote the spirit, purport and objects of the Bill of Rights. Section 8(2), moreover, provides that a constitutional right binds private parties 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, while s 8(3)(a) provides that, when applying a constitutional right to a private party in terms of s 8(2), a court, in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right. Together these provisions envisage judicial development of the private common law (1) in order to promote constitutionalrights values, and (2) in order to give effect to constitutional rights that have been held to bind private parties, to the extent that legislation does not already do so. The Constitutional Court has held that these provisions impose a duty on courts to develop the common law in at least two situations:
In part IV. HRA, s 3 and SA Constitution, s 39(2), both quoted in the text at note 21 above. In South Africa, however, the courts duty goes further by requiring that statutory interpretation also promote human-rights values. 30 In fact, s 3 of the HRA also requires Type 6 application, since it imposes not only the duty to read legislation in a Convention-compliant manner, but an additional and distinct duty to give effect to legislation in that manner: Ghaidan v GodinMendoza [2004] 2 AC 557 para 107 (per Lord Rodger). 31 See HRA, s 4 and SA Constitution, ss 2, 8(1) and 172(1): whereas English courts may make a declaration of incompatibility which does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given and is not binding on the parties to the proceedings in which it is made, South African courts must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.
29 28

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if it is inconsistent with a constitutional right or if it deviates from or fall[s] short of the Bills objective, normative value system.32 The provisions of the HRA are admittedly less clear. The Act does not mention the (public or private) common law, while s 6 expressly provides that only public authorities are bound by the Convention rights. In both respects, the Act differs from the South African Constitution. However, certain features of the Act suggest that it is not obvious that Parliament is opposed to the use of common-law rights and remedies for the implementation of Convention rights.33 First, s 6(3)(b) provides that courts are public authorities and are thus bound by Convention rights. In other words, the Act provides that courts have a duty to act compatibly with Convention rights, but does not exclude from its ambit their adjudication of commonlaw claims. Secondly, s 7(1)(b) provides that a victim may rely on Convention rights in any legal proceedings other than those initiated under the Act itself (which includes the adjudication of common-law claims). Thirdly, s 12 obliges courts to have particular regard for the importance of the Convention right to freedom of expression when considering whether to grant any remedy or order that might affect that rights exercise. These features of the Act, among others, at least leave open the possibility that Convention rights are somehow to inuence judicial development and application of the common law. They entail that the Act is susceptible to a construction that permits such inuence, even if it does not oblige it. In other words, in effect the HRA gave the courts a choice whether or not to allow their own development of private common law to be inuenced by Convention rights; essentially, they had to decide the matter for themselves. English scholars have advanced a range of stronger views about the so-called horizontal effect of the HRA;34 for example, that Convention rights bind private parties directly (Type 1 application), or that the courts have a legal duty (as opposed to a mere permissive power) to ensure that the private common law is consistent with Convention rights. But the English courts have not (yet) approved any of these stronger views. The issue remained wholly unresolved for some time, and a variety of judicial dicta seemed to

32 Carmichele supra note 15 paras 336; S v Thebus & another 2003 (6) SA 505 (CC) para 28. 33 Alison L Young Mapping horizontal effect in David Hoffman (ed) The Impact of the UK Human Rights Act on Private Law (2011) 212. 34 See, e g, M Hunt The horizontal effect of the HRA (1998) Public Law 423; G Phillipson The HRA, the common law and horizontal effect: A bang or a whimper? (1999) 62 MLR 824; Sir William Wade Horizons of horizontality (2000) 116 LQR 224; A Lester & D Pannick The impact of the HRA on private law: The knights move (2000) 116 LQR 380; J Beatson & S Grosz Horizontality: A footnote (2000) 116 LQR 385; T Raphael The problem of horizontal effect (2000) European Human Rights Law Review 493; J Morgan Questioning the true effect of the HRA (2002) 22 Legal Studies 159.

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point in several conicting directions.35 It was even suggested that the issue need never be resolved.36 However, several dicta of high authority in the context of the development of the law of privacy and defamation now make it clear that the courts regard the provisions of the HRA as, at the very least,37 permitting the inuence of human-rights norms on the judicial development of the private common law. In Joseph v Spiller, for example, Lord Phillips held on behalf of a unanimous Supreme Court that
it is necessary for this court, when considering suggested developments of the common law of defamation, to take account of the Convention and the jurisprudence of the Strasbourg court.38

Similar remarks had earlier been made by the House of Lords and Court of Appeal.39 This view is further supported by the decision of the House of Lords to develop the equitable wrong of breach of condence, under the explicit inuence of Convention rights to and values of free expression and privacy, into a novel tort of wrongful disclosure of private information.40 To sum up: South African law requires, while English law (currently) permits, human-rights norms to inuence judicial development of the private common law. It follows that both legal systems envisage, at least, Type 4 inuence alongside Types 2 and 3. III THE NATURE AND VALUE OF THE INFLUENCE OF HUMAN RIGHTS ON JUDICIAL DEVELOPMENT OF THE PRIVATE COMMON LAW Given that both English and South African courts are able to develop the private common law under the inuence of human-rights norms, it is worth examining the nature of that shared process in more detail. This part does so by abstracting away from some of the concrete differences between the two legal systems, which are considered below in part IV. I explain the distinction
35 As summarised by Gavin Phillipson Clarity postponed: Horizontal effect after Campbell and Re S in Helen Fenwick, Gavin Phillipson & Roger Masterman (eds) Judicial Reasoning under the UK Human Rights Act (2007). 36 The general question of horizontality has not yet been resolved by a court. Indeed, it may never be resolved judicially at the same high level of abstraction on which the debate has been conducted for the most part in the law books and legal periodicals: X v Y [2004] ICR 1634 para 45. 37 It is possible that the English courts may, in future, decide that the HRA should have a stronger horizontal effect than this. Kay v Lambeth LBC [2006] 2 AC 465 para 61 (per Lord Nicholls): The courts own practice and procedures must be Convention compliant. Whether, and in what circumstances, the courts section 6 obligation extends more widely than this, and affects the substantive law to be applied by the court when adjudicating upon disputes between private parties, still awaits authoritative decision. (Emphasis supplied). 38 [2010] 3 WLR 1791 para 73. 39 A v B plc [2003] QB 195 para 4 per Lord Woolf CJ; Campbell v MGN Ltd [2004] 2 AC 457 para 132 (per Baroness Hale), paras 1617 (per Lord Nicholls), and paras 86 and 106 (per Lord Hope); McKennit v Ash [2008] QB 73 para 11 (per Buxton LJ). 40 Campbell v MGN Ltd [2004] 2 AC 457.

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between the rational and empirical inuence of human-rights norms, focusing on the former, and then argue that the content of that inuence is highly contingent, but that it is nevertheless of some value in itself. (a) Judicial development of the common law But what is it that human-rights norms are to inuence? It is the judicial development of the private common law, ie, the creation, alteration and abolishment of private common-law rules and principles by judges. They do this, while adjudicating legal disputes regulated by the private common law, by articulating and applying laws in order to issue rulings and grant remedies, in accordance with the local doctrines of stare decisis, where the court is faced with a common-law problem for which there is no precedent or is asked to depart from precedent. This judicial function has been performed in England for more than 700 years41 and in South Africa for almost 200.42 Although both legal systems apply a declaratory theory of common-law judicial decision-making,43 neither still subscribes to the old ction that the common law is static and unchanging.44 It is now openly acknowledged that judges in both legal systems have the power to develop or change the common law.45 Lord Hobhouse, for example, has held:
The common law develops as circumstances change and the balance of legal, social and economic needs changes. New concepts come into play; new statutes inuence the non-statutory law. The strength of the common law is its ability to develop and evolve. All this carries with it the inevitable need to recognise that decisions may change. What was previously thought to be the law is open to challenge and review; if the challenge is successful, a new statement of the law will take the place of the old statement.46

The courts power to change the common law can be exercised in a myriad ways. After analysing centuries worth of judicial development of the common law of obligations in England, David Ibbetson observes:

David Ibbetson A Historical Introduction to the Law of Obligations (1999) 295. Du Bois in Willes Principles op cit note 23 at 76: The doctrine of precedent became part of South African legal practice on the establishment in 1828 of the Cape Supreme Court, initially staffed exclusively by British judges. 43 That is, the law as declared by the court is the law applicable not only at the date of the decision but also at the date of the events that are the subject of the case before it, and of the events of other comparable cases which may thereafter come before the courts: Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 at 3779; Masiya v Director of Public Prosecutions, Pretoria & another 2007 (5) SA 30 (CC) para 48. 44 According to this view, the common law was an ideal system of law, pre-existing judicial decision, that judges from time to time revealed in their judgments, which were merely evidence of that law. Lord Reid described this view as a fairy tale in The judge as law maker (19723) 12 JSPTL 22. 45 See, e g, Kleinwort Benson supra note 43 at 358 and 3779 (per Lord Goff); Carmichele supra note 15 paras 356. The SA Constitution, moreover, expressly mentions the inherent power of the superior courts to develop the common law: ss 39(2) and 173. 46 R v Governor of Brockhill Prison, Ex p Evans [2001] 2 AC 19 at 48.
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Legal change occurs through lling in gaps between rules in the way that seems most convenient or most just at the time; through twisting existing rules, or rediscovering old ones, to give the impression that a change in the law is no more than the application of the law that was already in place; through reformulating claims into a different conceptual category, normally one less encumbered by restrictive rules; through inventing new rules that get tacked onto the existing ones; through borrowing rules from outside the Common law; through injecting shifting ideas of fairness or justice; and, very occasionally, through adopting wholesale procrustean theoretical frameworks into which the existing law can be squeezed.47

A shared element, in all such cases, is the exercise by judges of a more or less constrained discretion or choice, based in part on normative, evaluative judgement.48 After all, litigants seeking to challenge the existing state of the common law must persuade courts (whether subtly or head-on) that it ought to be changed. In making such choices, courts take into account, and are constrained by, a variety of relevant and sometimes competing considerations including, for example, their own as well as prevalent views on morality, justice and fairness as between the parties and in society generally; the purposes and context of the relevant domestic legal rules and principles; economic, cultural and other evaluative norms, including industry-specic, foreign and international norms; the need for legal certainty, consistency among laws, and coherence in the legal system; and the need to respect the constitutional competence of the legislature and executive. Ultimately, the common law, and thus also its development, ought to be anchored in a communitys cultural and societal values, and should evolve as these evolve.49 The overall purpose, then, of the development of the common law is to ensure that it meets the ever-changing needs of society50 and provides practical justice relevant to the times.51

Ibbetson op cit note 41 at 294. Jurisprudential theories of adjudication seek to explain and/or justify legal reasoning, including its law-making (i e developmental) element. See, e g, Ronald Dworkin Hard cases in Taking Rights Seriously (1977); MacCormick op cit note 18; Joseph Raz Law and value in adjudication in The Authority of Law (1979); John Finnis Natural law and legal reasoning in Robert P George (ed) Natural Law Theory Contemporary Essays (1992); William Lucy Adjudication in Jules Coleman & Scott Shapiro (eds) The Oxford Handbook of Jurisprudence & Philosophy of Law (2002); and Du Bois in Willes Principles op cit note 23 at 2232. Notwithstanding signicant differences in their theories, these scholars converge on the idea that adjudication in hard or unregulated or non-routine cases requires normative, evaluative judgement; i e judges have to decide what they ought to do, how the case before them should be decided. Much the same is true, in my view, of Duncan Kennedys A Critique of Adjudication (n de sicle) (1997). 49 See also M M Corbett Aspects of the role of policy in the evolution of our common law (1987) 104 SALJ 52 at 678. 50 Ibid at 54. 51 Kleinwort Benson supra note 43 at 377 (per Lord Goff).
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(b) Two kinds of human-rights inuence There are two distinct ways in which domestic, legal human-rights norms could inuence the exercise of judicial discretion involved in the private common laws development. The rst is the rational inuence of human rights. This occurs where a court invokes a human-rights norm as a reason militating in favour of a particular legal decision. The norm thus forms part of the argument or chain of legal reasoning that the court advances to justify its order. A second kind of inuence is where a human-rights norm inuences a judges decision without forming part of the express reasoning advanced to justify the court order. This may be termed the empirical inuence of human rights, and can take many forms. For example, judges may hold certain moral or political views about specic human rights or human rights in general (eg regarding their content, value, or the manner in which others persons, institutions and states have employed them) that may predispose or otherwise inuence their decision-making regarding such rights in one direction or another, whether consciously (eg as an unarticulated judicial motive) or unconsciously (eg by affecting a judges emotions or instinct). This sort of inuence could be attributable to the personal attributes, background and experiences of a particular judge, or to broader realities such as the socio-economic or political context of the decision (eg the development of an amorphous yet discernible human-rights culture among lawyers or politicians or civil society). For obvious reasons, it is often difcult, if not impossible, to identify such empirical inuence with any certainty. But because judges are humans, there can be little doubt that it occurs, and sometimes it is plausible to argue that this type of inuence has indeed taken place. A particularly noticeable form of empirical inuence is a shift in the attitudes of groups of judges, occasionally even of the majority of the entire judiciary. This sort of development can lead to new tendencies, in the exercise of judicial discretion, in the manner in which judges identify and evaluate the reasons they present as justifying their legal orders, which in turn can lead to a different pattern of outcomes. Once again, however, it will often be difcult to know whether any such systemic shift in judicial culture, or sub-culture, is attributable to a particular causal factor say, the injection of human-rights norms into a legal system. In many instances, one can only point to the fact of correlation. (c) The nature of the rational inuence of human rights It is easy to tell when a human-rights norm has had a rational inuence on the judicial development of the private common law, since it is expressly invoked by the court. The analytical framework set out above in part II distinguished three forms of such inuence: (i) A court could develop (ie abolish, create, alter) a private common-law rule or principle to ensure that it is consistent with a human right (Type 4).

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(ii) A court could develop (ie abolish, create, alter) a private common-law rule or principle to promote or serve human-rights values (Type 4). (iii) A court could apply a private common-law rule or principle, which itself complies with all relevant human-rights norms, so as to ensure that the ruling it generates in a particular case is itself consistent with a human right or sufciently promotes human-rights values (Type 5).52 Among these three forms of application, each of which involves the invocation of a human-rights norm as a reason to justify a particular development or application of the private common law, one can further distinguish between two kinds of reason. On the one hand, the norm may provide a categorical and mandatory reason ie, a duty53 which binds the court or a party before it in a way that requires a development of the common law. For example, a court may conclude that a common-law rule is inconsistent or incompatible with a human right and its corresponding duties and, for that reason, must be changed.54 On the other hand, the norm may provide merely a permissive reason, which does not obligate an outcome but instead may be invoked by a court to provide rational support for a particular development or application of the law. For example, a judge may conclude that the value of life, which underpins the human right to life, militates in favour of (but does not compel) the recognition of a novel legal duty in delict to take reasonable positive steps to protect a stranger from physical harm in a particular category of case. But what is the true signicance of a legal systems choice to enable these forms of rational human-rights inuence? It is this. Such a choice seeks to redirect and place novel constraints on the courts exercise of discretion when developing and applying the private common law. A host of new reasons, rules, principles and values are thereby injected into the law, giving litigants a toolkit of new arguments that may militate in favour of legal change. Judges, exercising their traditional power to develop the common law, are then obliged to consider these novel arguments, some of which they may, others of which they must, accept. As a result, the content of the private common law and the outcome of cases will be altered. Some changes will be required, while others will merely be permitted.
52 A similar three-part analysis is provided by Du Bois in Willes Principles op cit note 23 at 929. 53 For an account of duties as categorical and mandatory reasons, see J Gardner & T Macklem Reasons in Coleman & Shapiro op cit note 48 at 4704. 54 For example, in Osman v UK (1998) 29 EHRR 245 the European Court of Human Rights held that the right to a fair trial under art 6 ECHR was violated by the English common-law rule of tort, applicable in preliminary striking-out proceedings without a full trial, that the police owe individuals no duty to take reasonable steps to protect them from reasonably foreseeable criminal assaults by third persons. Until it was overruled in Z v UK (2001) 34 EHRR 97, the Osman judgment was highly controversial in England in part because the European Court of Human Rights failed to make clear precisely what development of the English tort of negligence was required to satisfy art 6.

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This explanation can be deepened. As Neil MacCormick explains, all legal doctrine is the outcome of an attempt by law-making institutions to concretize broad principles of conduct in the form of relatively stable, clear, detailed and objectively comprehensible rules.55 The content of these abstract principles and the best way to reduce them to more specic formulations are highly contestable. Rival positions of principle, or rival views of the contextually appropriate balance or priority of principles press towards settling the law in different ways.56 The political, legislative process is preoccupied with the contest over the just balancing and determination of principles, and with the impact of such determinations on the interests of persons and classes and gives determinate form to the momentary outcome of the political contest by enacting rules to concretize a particular view of the in-principle justiable order of things in a given area of concern.57 Much the same is true of the rules and principles comprising the private common law. For these too reect complex balances struck between various competing considerations and more abstract principles a key difference, of course, being that the courts themselves (rather than any legislative body) strike the balance. For example, the main function of tort law, Lord Scott has held,
is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conicting rights.58

Thus, he points out,59 the law of defamation seeks to strike a balance between the right of freedom of expression and the right of others not to be defamed; the tort of negligence seeks to balance the right to engage in activities involving the possibility of inadvertently-caused harm against the right not to be injured by anothers actions; the torts of assault and battery and the rules of self-defence seek to balance the right not to be subjected to physical harm by anothers intentional acts against the right to protect oneself by force to repel an actual or threatened attack. All other branches of the private common law share this characteristic.60 The law of property, for instance, seeks to balance the interests of owners, possessors, and others who have or desire access to objects of property, in order to serve the common good, whether by way of facilitating a market economy, programmes of redistribution and land reform, property use planning and control, and so on.
MacCormick op cit note 18 at ix. Ibid at xi. 57 Ibid. 58 Ashley v Chief Constable of Sussex Police (Sherwood intervening) [2008] 2 WLR 975 para 18. 59 Ibid. 60 All of which, of course, have been supplemented, to a greater or lesser degree, by one or more waves of legislation, which usually (but not always) seek to alter the balances struck by the prior law in the manner thought best by the prevailing legislative majority.
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The law of contract strikes a balance between the freedom of individuals and groups to dispose of their property and labour as they see t, against the need to constrain abuses of freedom and inequality of bargaining power in order to protect the vulnerable. So too the law of succession, which gives effect to a more or less circumscribed principle of freedom of testation, where restrictions might serve a variety of protective and social purposes. Moreover, all these branches of law must strike an appropriate balance between values served by the laws form (eg clarity; non-retrospectivity; stability; etc)61 and those just discussed served by its content. Any area of social interaction (say, contracting) may be regulated by relatively specic and technical legal rules, or by relatively open-ended, general legal principles, or by some combination thereof. Different choices in this regard strike different balances between laws substantive and formal virtues.62 In South Africa, for example, the Supreme Court of Appeal has held that good faith is not free-oating legal principle that can be directly invoked to release a litigant from a contractual obligation; instead, it is merely an ethical value underlying contract law that may guide the application of more concrete legal rules and principles.63 This approach is based in part on an assumption that the legal uncertainty that a directly-enforceable legal principle of good faith would inject into contract law (and consequently into economic interaction) is not a price worth paying for any countervailing substantive fairness that might also result in individual cases. The balances reected in the rules and principles of private common law among different substantive values and abstract principles, and between these and values served by the laws form will inevitably vary from legal system to legal system,64 and may vary in one system over time.65 This is the
61 On which, see Joseph Raz The rule of law and its virtue in The Authority of Law op cit note 48. 62 See H L A Hart The Concept of Law 2 ed (1997) 130; Du Bois in Willes Principles op cit note 23 at 19; Neil MacCormick Institutions of Law (2007) 301. 63 See Brisley v Drotsky 2002 (4) SA 1 (SCA); Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA); South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA); Bredenkamp & others v Standard Bank of SA Ltd 2010 (4) SA 468 (SCA); Maphango & others v Aengus Lifestyle Properties (Pty) Ltd 2011 (5) SA 19 (SCA). A similar approach has been applied to trusts: Potgieter & another v Potgieter NO & others 2012 (1) SA 637 (SCA). 64 Compare, e g, the different balances struck between freedom of expression and protection for reputation in the US defamation law in New York Times Co v Sullivan (1964) 376 US 254 (a public ofcial cannot recover damages for a defamatory falsehood relating to his ofcial conduct unless he or she proves that the statement was made maliciously) and in English defamation law in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (a public ofcial cannot recover damages for a defamatory falsehood if the defendant proves that the statement was of public concern and was published responsibly in the circumstances). 65 Compare, e g, the different balances struck in South African defamation law between freedom of expression and protection for reputation in Pakendorf v De Flamingh 1982 (3) 146 (A) (the press is strictly liable for publishing defamatory falsehoods) and the case which overruled Pakendorf, namely National Media Ltd v Bogoshi

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bread and butter of much private-law scholarship, which analyses, compares and criticises the positions adopted by particular legal systems and makes recommendations for reform in particular social contexts. Crucially, however, it is the courts that are empowered to exercise their discretion to develop the private common law, by altering the balances reected in the legal status quo. These reections cast light on the nature of the rational inuence of human rights on the private common laws development. The choice to enable this inuence injects into the legal system a wide array of new evaluative criteria that are to guide and constrain the exercise of judicial discretion when developing and applying the common law. The HRA, Lord Rodger once observed, is deliberately designed to unsettle parts of our law by measuring it against a new, external standard.66 Judges are given a new yardstick against which to evaluate the existing rules and principles, including the balances they strike among underlying considerations, and which may be invoked to justify their modication. Although courts have exercised the power to develop the common law for centuries, human-rights norms supply novel legal reasons,67 together with a novel mechanism enabling courts to reconsider balances struck among pre-existing legal reasons,68 for and against legal change. In this way, judges can and sometimes must strike new balances, and therefore the common law accordingly can and sometimes must be developed. A series of examples will help to render this discussion more concrete.69 Imagine a legal system with an ancient system of private common law, which like England and South Africa has recently enacted a human-rights instrument that enables judges to develop that law under the inuence of its
1998 (4) SA 1196 (SCA) (a plaintiff cannot sue the press for publishing a defamatory falsehood if the defendant proves that, in all the circumstances, it was reasonable to publish it in the particular way at the particular time). 66 Lord Rodger of Earlsferry What are Appeal Courts for? (2004) 10 Otago LR 517 at 536. 67 The HRA, e g, enacts into English the law the Convention right to respect for private and family life, which supplies novel reasons to develop the English common law. 68 For many years before the enactment of counterpart human rights in both legal systems, the values of freedom of speech and of protection of reputation undoubtedly guided the development of the law of defamation in both England (e g, Derbyshire County Council v Times Newspapers Ltd [1993] AC 534) and South Africa (e g, National Media Ltd v Bogoshi supra note 65). However, the enactment of human-rights instruments has since provided litigants with a new mechanism to ask courts to re-evaluate the balances struck between them (e g, Khumalo v Holomisa 2002 (5) SA 401 (CC); Joseph v Spiller supra note 38). 69 Each hypothetical example is based on the assumption that the issues in question are primarily regulated by non-enacted, judge-made law, rather than legislation, as is traditionally the case in both England and South Africa. Of course, legal systems can and do give concrete effect to various human-rights norms by way of detailed, statutory regulation (e g the UK Equality Act, 2010; the South African Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000).

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norms. A series of problems arises in which the courts are asked to develop the common law to the extent that it fails to provide a remedy in the circumstances. First, consider a will that establishes a charitable trust the benets of which are expressly reserved solely for white persons who need nancial support for a tertiary education. Here, the common-law principle of freedom of testation (which is arguably reinforced by the human right to protection of property) conicts with a potential beneciarys human right not to suffer racial discrimination. The court has the power to delete or vary trust terms on the ground that they are contrary to public policy. If the legal system traditionally enforced such terms, the enactment of human rights might permit or require the court to strike a new balance between testamentary freedom and racial equality and, on that basis, to conclude that the term is contrary to public policy.70 Secondly, consider a hotelier with religious-based objections to homosexuality who expressly welcomes only heterosexual guests into his hotel.71 A guest contracts to stay in the hotel, takes up residence, but then reveals to the hotelier that he is gay and refuses to vacate during the contract period. Is the contractual term that discriminates on the ground of sexual orientation contrary to public policy and thus unenforceable by the hotelier? A court could reach this conclusion by reasoning that the guests human right to equality and freedom from unfair discrimination should outweigh the common-law principle of freedom of contract, as well as the common-law and human rights to undisturbed possession of property and freedom of religion. Thirdly, consider a court injunction prohibiting a defendant from repeating a call for the boycott of the plaintiffs lm on the basis that such a call amounts to a tort of intentionally threatening another substantial nancial harm, contrary to public morals.72 Imagine that the call for a boycott was motivated by the defendants disapproval of the plaintiffs history of anti70 Compare, e g, Curators Ad Litem to Certain Potential Beneciaries of Emma Smith Educational Fund v University of KwaZulu-Natal 2010 (6) SA 518 (SCA) (racially discriminatory term held contrary to public policy) with Blathwayt v Lord Cawley [1975] 3 WLR 684 (religiously discriminatory term not contrary to public policy). 71 This example is inspired by a news report of a successful tort claim made by a gay couple against hoteliers who refused to allow them to share a room in their B&B: Bristol gay couple win Cornwall B&B bed ban case, available at www.bbc.co.uk/ news/uk-england-bristol-12214368, accessed on 27 October 2011. A comparable set of facts were considered in Woodways CC v Vallie 2010 (6) SA 136 (WCC). 72 This example is drawn from a famous decision of the German Constitutional Court in the Lth case, BVerfGE 7, 198 (1958), which dealt with delictual liability under 826 BGB for intentionally causing harm to another in a manner which is contra bonos mores. Roughly-speaking, the functionally-equivalent heads of liability in South African and English law are, respectively, the delict of wrongfully and intentionally causing another pure economic loss and the torts of deliberately causing harm by unlawful means (although English law requires unlawful means, whereas German law requires the conduct to be contra bonos mores), of intimidation, and of conspiracy.

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Semitism and Nazi sympathies. It could plausibly be argued, on appeal, that the trial court should have given greater weight to the human right to freedom of expression when deciding whether the call for a boycott was contrary to public morals in the circumstances and, on that basis, that the injunction should be set aside. Two nal examples in delict can be given. It could be argued that the courts ought to develop a novel common-law cause of action, or extend an existing one, in order to provide a remedy for the intentional infringement of an interest protected by a human right that has not, hitherto, been adequately protected by the common law.73 One could also argue that the courts ought to recognise that a wider range of people have standing to sue under a particular delictual action or tort, on the basis of their human rights.74 (d) The contingent content of the inuence of human rights The foregoing discussion makes clear that Type 4 and Type 5 forms of inuence necessarily involve constraining and guiding the evaluative judgement of courts in exercising their discretion whether, and if so how, to develop the rules and principles of the private common law. But it should also be readily apparent just how radically open-ended and contingent the content of that inuence might be.75 Precisely how courts will tend to alter the private common law, under the inuence of human-rights norms, will depend on (1) the content of the current rules, principles and underlying value-commitments of a given legal systems private common law; (2) the content and underlying value-commitments of its domestic human-rights instrument; (3) whether the inuence of the latter on the former is legally required or merely permitted; and (4) the broader legal and constitutional context, including the extent to which the private common law is supplemented by statutory law (itself expressing certain democratically-endorsed value-commitments), as well as prevalent views about when judicial lawmaking is appropriate in a given legal system. Moreover, the practical implications of human-rights law are often somewhat indeterminate, given that the rights themselves tend to be phrased in broad, evaluative terms, and given the scope for reasonable disagreement about the purposes and values
73 For example, the House of Lords development of the equitable wrong of breach of condence into a novel tort of wrongful disclosure of private information under the explicit inuence of Convention rights to and values of free expression and privacy: Campbell v MGN Ltd [2004] 2 AC 457. 74 For example, in Hunter v Canary Wharf [1997] AC 655, Lord Cooke argued in a dissenting opinion that family members living in a dwelling, but lacking a proprietary interest therein, ought to have standing to sue for private nuisance, partly on the basis of their Convention rights to respect for their private and family life and home. 75 By describing the inuence as contingent I mean that it has no necessary content; instead, it may vary from legal system to legal system and within one system over time, depending on many context-specic considerations. A similar point is made by Anton Fagan in Determining the stakes: Binding and non-binding Bills of Rights in Daniel Friedmann & Daphne Barak-Erez (eds) Human Rights in Private Law (2003) 8894.

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that they are designed to serve. Normative judgement is also required whenever human rights and the values they serve come into conict with one another or with the pursuit of social goods. And many different developments of the common law might be equally consistent with relevant human-rights norms. For all these reasons, their inuence must turn, to some degree, on judicial choice. Two examples concerning freedom and equality drive home the point about the contingency of the inuence of human-rights norms on private common law. In the rst place, although human-rights law is often associated with protecting equality, a human right to equality can encompass a range of different protections and goals of varying importance or force or priority. For instance, lawyers sometimes distinguish between a traditional idea of formal equality (or consistency of treatment), which justies standard prohibitions on unfair discrimination, and more far-reaching notions of substantive equality (extending towards equality of opportunity or even equality of outcome), which arguably justify various forms of afrmative action.76 If a court is asked, for instance, to hold that a contract or will that discriminates on religious grounds is contrary to public policy, its decision whether contractual or testamentary freedom ought to be outweighed in the circumstances by the right to, or value of, equality must depend on the meaning of and priority afforded to equality in that legal system. Since the commitment to equality in human-rights instruments may vary in nature and degree, they will yield stronger or weaker reasons for legal change. The second example arises from the fact (alluded to above) that humanrights instruments express a certain political philosophy, that is, they reect and seek to promote a set of fundamental value-commitments that hang together in a more or less coherent view of political morality. For example, the US Bill of Rights, Lord Hoffmann has argued, reects a certain moral and political philosophy of man as an independent self-reliant agent as well as a member of society, which emphasises self-reliance and self-sufciency, liberty and the freedom of the individual from interference by the state.77 The Bill primarily seeks to protect negative liberty (ie, freedom from state interference)78 by imposing negative duties on the state to refrain from harming citizens or interfering in their lives.79 This, in turn, is arguably based on, or is at least consistent with, moral-political theories of classical liberalism
76 See, e g, Sandra Fredman Discrimination Law (2002) ch 1. The content and implications of these different conceptions of equality are controversial and turn on contestable assumptions about political morality. 77 Lord Hoffmann The universality of human rights (2009) 125 LQR 416 at 4201. 78 Isaiah Berlin Two concepts of liberty in Liberty (2002 ed) 169. 79 See, e g, the majority judgment of Rehnquist CJ in DeShaney et al v Winnebago County Department 489 US 109 para 23: nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the States power to act, not as a guarantee of certain minimal levels of safety and security a

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and individualism,80 which together regard the state primarily as a threat to liberty. On this view, the purpose of human rights is to limit and control the state and to promote individual freedom, conceived in negative terms. Other human-rights instruments, however, may be and have been based on different political philosophies, ranging across the political spectrum, some of which seek primarily to empower the state in order to promote equality in society. The Freedom Charter, for instance, which was adopted in Kliptown near Johannesburg in 1955 by a coalition of anti-apartheid groups including the African National Congress,81 includes various socialist ideas alongside typical civil and political rights.82 A less extreme example is the South African Constitution, which is based on a view that (1) not only the state but also private persons pose a potential threat to liberty, and (2) the state not only threatens liberty but is also capable of creating conditions which enable citizens to enjoy a greater degree of positive liberty and substantive equality.83 The South African Constitution gives effect to this philosophy by imposing a variety of duties on the state to take positive steps both to protect and to promote human rights and socio-economic well-being, and by empowering courts to decide, on a case-by-case basis, which human rights bind private persons and what these require in different contexts.84 Clearly, then, human-rights instruments expressing different political moralities will tend to inuence the development of the private common law in different ways. That impact will also depend on the value-commitments of a particular system of private common law. For example, a human-rights instrument that prioritises the protection and promotion of the negative

view, according to Brennan J in dissent (para 39), based on the general principle that the Constitution does not establish positive rights. 80 On the historical and justicatory relationships between moral individualism and liberalism, see Joseph Raz The Morality of Freedom (1986) 1619. 81 Leonard Thompson A History of South Africa 3 ed (2000) 2023. The Charter is often mentioned in current political debate. 82 It provides, e g, that [t]he mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole and that [r]estriction of land ownership on a racial basis shall be ended, and all the land divided amongst those who work it. Some have criticised the Charters juxtaposition of socialist and liberal elements as inconsistent: see Thompson ibid. 83 These phrases do not appear in the Constitution. The term positive liberty is Isaiah Berlins: op cit note 78 at 178. What I have in mind, by conjoining the notions of positive liberty and substantive equality, is an ideal state of affairs (unattainable in practice) in which all people, equally, share the practical ability not merely an empty, theoretical entitlement to pursue their chosen projects in life. Amartya Sen, in Development as Freedom (1999), argues for a similar, positive notion of freedom as agency through his capability theory, which stresses the importance of considering the extent to which people are practically able to exercise their choices rather than simply having the theoretical right to do so. Comparable arguments are advanced in Joseph Raz The Morality of Freedom (1986) and Martha C Nussbaum Creating Capabilities (2011). 84 The content of the SA Constitution is compared with the ECHR in part IV below.

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liberty of individuals would be unlikely to have a radically transforming effect on a body of private common law that itself reects a nineteenth century, laissez-faire political philosophy. A human-rights instrument primarily seeking to promote social equality, on the other hand, would probably have a far greater impact unless, of course, the body of private law had itself been developed by judges, or shaped by legislation, in order to strike a more even balance between individual freedom and social equality. (e) The value of the inuence of human rights So far, part III has examined the nature of subjecting the judicial development of private common law to the inuence of human-rights norms. I have argued that a legal system that permits or requires such inuence necessarily imposes novel constraints on the exercise of judicial discretion involved, yet the practical consequences thereof are highly contingent on many contextspecic considerations. Can a choice to impose these constraints be justied? It is extremely difcult to answer this normative question in the abstract, given the wide elds of law and social interaction which it concerns and its contingent impact. Whether its costs outweigh its benets must, in practice, turn on all the same contingencies that render its potential impact so open-ended. So the choice to subject the private common laws development to the inuence of human rights may be justiable in certain conditions but not in others, in one society but not in another. The choice certainly has costs. For one thing, it injects (at least initially) a great deal of uncertainty into the law, even though it is possible both that similar legal reform could be achieved by enacting legislation and that courts, who have long had the power to develop the private common law, could achieve similar outcomes without the guidance or constraint of human rights. It is also arguable that an increased judicial willingness to alter the law, even if triggered by a human-rights instrument, is in principle regrettable both on democratic grounds and given the institutional weaknesses of courts as instruments of coherent, wideranging law reform.85 Nevertheless, the choice has some value. Subjecting the judicial development of private common law to the inuence of human-rights norms conceived abstractly as a kind of legal process or institution is, in itself, of some worth. To recall, it has long been recognised that the common law, and its development, should be anchored in a communitys cultural and societal values, and should evolve as these evolve. Unconstrained by human-rights law, the common laws development has always turned solely on the courts

85 For example, given the limited law-making power of courts based on the rules of precedent and the facts of specic cases, they are usually incapable of bringing about radical reform in any aspect of the law; instead, they face a choice between conserving current doctrine or making merely a partial reform, which invariably introduces conict into the law: see Raz op cit note 48 at 197201.

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normative judgement and perception of the communitys basic values.86 But if the common law should be anchored in a communitys values, and those values come to be (at least partly) expressed in a human-rights instrument, then there must be some benet in developing the common law in accordance with that instrument. Adopting a human-rights instrument is a means by which a political community can debate, choose and set out its most basic, substantive and procedural values (including their relative priorities), and thereby commit itself, over the long-term, to a particular vision of the public or common good, as a broad framework within which political, economic and social activity ought to take place. This is a profoundly important, democratic choice from among many reasonable alternatives, and may depending on the relative inclusivity of the legislative process approximate a genuine social contract (at least for the contemporaneous generation). This process is surely of intrinsic value, and it will be of further value too if the content of the communitys law is reformed, if and when necessary, to ensure its consistency with, and its pursuit and promotion of, the ends expressed in the human-rights instrument. One way to secure that reform is by empowering judges to develop the private common law to ensure that it is consistent with and promotes human-rights norms. This process will help to ensure that the fundamental valuecommitments that guide judicial legal development are those endorsed by the community. Professor Anton Fagan argues that such inuence can be justied only if the moral judgement of the enactors of the human-rights instrument is superior to that of judges.87 But that view seems to overlook the spectrum of reasonable, but different moral judgements that may be made in situations of practical choice, particularly when deciding how best to regulate economic activity, property relations, agreements, assaults, accidents, and so forth. The widespread consensus in democratic societies is that representative and participative institutions provide the most legitimate means to choose from among different reasonable options. A choice to develop the private common law in accordance with democratically-endorsed human-rights norms endows the normative judgements underpinning that development with a degree of legitimacy that unconstrained judicial judgements may lack. Consider the South African context, where the private common law was imported from Western Europe by (predominantly) Dutch and British colonisers and imposed on the local population,88 and thereafter developed
86 In South Africa, since the mid-1970s courts have decided whether to impose novel delictual liabilities by appealing to the legal convictions of the community: Minister van Polisie v Ewels 1975 (3) SA 590 (A). 87 Fagan op cit note 1 at 6256. 88 See Reinhard Zimmermann & Daniel Visser Introduction: South African law as a mixed system, Eduard Fagan, Roman-Dutch law in its South African historical context, and T W Bennett African land A history of dispossession in Reinhard Zimmermann & Daniel Visser (eds) Southern Cross: Civil Law and Common Law in South Africa (1996).

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and applied during the nineteenth and twentieth centuries by courts staffed almost exclusively by white men in accordance with the social values of the colonisers, immigrants, and their descendants. As a result, it may plausibly be argued that a large number of South Africans did not and may still not embrace their common law to the same degree that the English embrace theirs, and understandably so given the countries differing histories. One way to tackle this decit in the legitimacy of the private common law in South Africa is by empowering the courts to develop it in accordance with democratically-endorsed human-rights norms.89 Of course, the guiding and constraining inuence of human rights will be of further value if the moral judgement of the enactors of the human-rights instrument in a particular community does happen to be superior to that of most of its judges. (Obviously, any such claim would be highly contestable.) If, for example, one believes that classical liberalism (or modern libertarianism) is an inferior political morality to some form of liberal egalitarianism, communitarianism or socialism,90 then one will welcome the judicial development of a body of common law that has come, over centuries of development by judges following their own moral lights, to embody a classically-liberal moral outlook in accordance with a human-rights instrument that reects one of these other political moralities.91 But any further value of this sort is contingent.92

89 It should be noted that this argument presupposes that our Bill of Rights enjoys widespread democratic support an assumption that may not consistently hold true. If it does, then the argument can be taken further in the South African context, given that s 39(2) of the Constitution has been interpreted not merely to grant courts a permissive power but instead to impose a positive duty on them to ensure that the private common law is consistent with and promotes constitutional values, even if the parties before the court do not raise this issue in the course of litigation (Carmichele supra note 15; S v Thebus supra note 32). Assuming that judges always try to perform their duties, it follows that even in cases where the common law is not developed but merely applied as it stands, the courts accept (either expressly or by way of necessary implication) that it is consistent with and sufciently promotes constitutional values. For that reason, the common law is endowed with a greater measure of legitimacy. This process which is partly rhetorical can be understood as part of the broader nation-building, reconciliatory project that South African courts have undertaken since the beginning of the democratic era: see Hugh Corder A century worth celebrating (2010) 127 SALJ 571 at 57780. 90 For an excellent account of these political moralities, see Will Kymlicka Contemporary Political Philosophy 2 ed (2002) chs 3 (Liberal Equality), 4 (Libertarianism), 5 (Marxism), and 6 (Communitarianism). 91 These sorts of argument are frequently made in South Africa: e g, Stuart Woolman & Dennis Davis The last laugh: Du Plessis v De Klerk, classical liberalism, creole liberalism and the application of fundamental rights under the interim and the nal Constitution (1996) 12 SAJHR 361. 92 I do not mean to suggest that such variable effects are unimportant. Quite the opposite is true. That is why part IV compares some of the differing, contingent features of South African and English law.

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IV A CLOSER COMPARISON OF SOUTH AFRICAN AND ENGLISH LAW The previous part explained that, when considered in the abstract, the content of the inuence of human-rights norms on the judicial development of the private common law is highly contingent and depends, to a degree, on judicial choice. This part moves from the abstract to the relatively concrete, by examining the position in South African and English constitutional,93 human-rights and private common law. It argues that although it is true that both legal systems share important features,94 signicant dissimilarities in their respective legal and political contexts provide reasons to believe that the human-rights inuence on the judicial development of their respective bodies of private common law is likely to differ in degree.95 Some of these contrasts concern the extent to which legislation has supplemented the private common law in both countries, but the most signicant differences concern the content, purposes and political and social context of the HRA and South African Constitution. Although these instruments enable both English and South African courts to invoke human-rights norms as justications for altering the common law (Type 4 application), beneath this shared characteristic lie a series of interlinked dissimilarities which are likely to have a cumulative effect. (a) Constitutional fundamentals The enactment of the South African Constitution amounted to a constitutional revolution96 that altered the legal systems ultimate rules of recognition97 by abandoning the principle of parliamentary sovereignty: the Constitution is unambiguously supreme law; it can be amended only by special legislative majorities;98 the rights in the Bill of Rights bind the legislature, executive and judiciary;99 and the courts are obliged to declare invalid any law (including common law and legislation) or conduct inconsistent with it.100 The HRA, on the other hand, although generally accepted to be a constitutional statute in the limited sense that it cannot be impliedly repealed by subsequent primary legislation,101 is not supreme law; instead, the constitutional principle of parliamentary sovereignty is retained, since Convention rights bind public authorities, including courts, but not
93 It considers principles of the UK constitution as they apply in England only: supra note 3. 94 As explained above in part II(d). 95 See Hector MacQueen Contract, delict and the Bill of Rights (2004) 121 SALJ 359 for a helpful comparison of South African, English and Scots law. 96 L Ackermann The legal nature of the South African constitutional revolution 2004 NZLR 633. 97 Hart op cit note 62 ch VI; Gardner op cit note 8. 98 SA Constitution, s 74. 99 SA Constitution, ss 7(1) and 8(1). 100 SA Constitution, ss 2 and 172(1)(a). 101 Thoburn supra note 8 at 1867 (per Laws LJ); Jackson supra note 8.

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Parliament,102 which retains the power to enact ordinary legislation expressly repealing the HRA or explicitly incompatible with Convention rights; and while courts are empowered to declare that primary legislation is incompatible with a Convention right, such legislation remains valid.103 The two human-rights instruments, therefore, operate in materially different constitutional settings since the judicial and legislative branches of their respective states wield different sets of constitutional powers.104 (b) Substantive vision of the state The two instruments, moreover, express partially overlapping but also partially diverging political philosophies, reected in the different legal responsibilities that they impose on the state. To be sure, both include traditional civil and political rights, thereby seeking, rst, to promote democratic governance and the rule of law and, secondly, predominantly to limit state power and to protect people from unwarranted state interference in their lives by imposing negative duties of restraint. This, in short, conjoins a commitment to a democratic Rechtsstaat (or law-state) with a classically liberal political morality that prizes negative liberty (ie freedom from state intrusion) and formal equality (ie consistency of treatment).105 The South African Constitution, however, also includes many further rights for example, to socio-economic benets, administrative justice, and environmental protection that are not to be found in the HRA.106 The South African state bears (i) a general negative duty to respect all these rights, (ii) a general positive duty to protect them against infringement by other parties, and (iii) a general positive duty to promote and full them.107 Moreover, particular rights expressly impose specic positive duties on the state, for example, to take reasonable legislative and other measures, within available resources, to achieve the progressive realisation of the rights to have

HRA, s 6. HRA, s 4. 104 The two instruments also operate in different institutional settings. The SA Constitution established a new Constitutional Court with a jurisdiction limited to constitutional matters and issues connected thereto (s 167), whereas the UK Supreme Court (like the Appellate Committee of the House of Lords before it) has unlimited jurisdiction in English law. This institutional contrast is arguably of limited practical importance, however, because (i) the content of the SA Constitution is so wide-ranging that most signicant legal issues can somehow be characterised as a constitutional matter or issue connected thereto and (ii) the other superior courts in South Africa have jurisdiction over all matters, constitutional and otherwise. 105 On classical liberalism, negative liberty and formal equality, see the text to notes 7783 above. 106 Instead, in English law many of the interests that these rights are designed to protect are provided for in ordinary legislation (and EC law), the implementation of which is subject to common-law judicial review of administrative action (and EC standards of review). 107 SA Constitution, s 7(1).
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adequate access to housing, health care, food, water and social security.108 The Constitutional Court has also recognised further specic positive duties binding the state, for example, to take steps to promote the achievement of equality109 and to protect life and the security of the person from violence.110 These additional features of the South African Constitution together articulate a commitment to a political morality that goes well beyond classical liberalism:111 the state is obliged not merely to refrain from harming people but also to take positive steps to protect people from harm and to assist people by providing essential services and redistributing wealth. As suggested above,112 the state is seen not merely as a threat to freedom but also as a potential source of freedom; that is, able to contribute to creating social conditions in which citizens can enjoy a greater degree of positive liberty and substantive equality. The South African Constitution, therefore, can plausibly be labelled a social democratic or liberal egalitarian one,113 and in this regard it stands in stark contrast to classically-liberal human-rights instruments. It should be noted, however, that this contrast between the South African Constitution and HRA is not absolute. Although the Convention rights given domestic effect by the HRA have traditionally been understood and interpreted as imposing only negative duties of restraint, in recent years the European Court of Human Rights has increasingly held that some rights impose positive duties on the state.114 Some of these have an explicit textual basis in the ECHR,115 while others are the product of judicial interpreta-

SA Constitution, ss 26(2) and 27(2). Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) para 24. 110 S v Baloyi 2000 (2) SA 425 (CC) para 11; Carmichele supra note 15 para 45; Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) para 59. 111 This may explain why some commentators (e g Karl Klare Legal culture and transformative constitutionalism (1998) 14 SAJHR 146 at 151) choose to describe the SA Constitution as post-liberal, apparently following Roberto Unger Law in Modern Society (1976). 112 See note 83 and the corresponding text above. 113 It is not a socialist document because it includes a right to private property. Naturally, all such labels are of limited use since their signication is invariably debatable and few real-world institutional arrangements fall clearly within one or another category. Yet they are not entirely useless either, since they signify more or less focused schools of thought in political philosophy (see Kymlicka op cit note 90). For example, Lourens du Plessis & Hugh Corder usefully argued, in Understanding South Africas Transitional Bill of Rights (1994), that the interim Constitution reected a liberal egalitarian political philosophy (the egalitarian content of which was subsequently strengthened by the 1996 Constitutions inclusion of a wider range of socioeconomic rights), in part because it was the product of negotiation between parties committed to libertarianism on the one hand (e g the National Party) and to egalitarian liberationism on the other (e g the African National Congress). 114 Alistair Mowbray The Development of Positive Obligations under the ECHR by the ECtHR (2004); Sandra Fredman Social, economic, and cultural rights in David Feldman (ed) English Public Law 2 ed (2009) 481. 115 For example, art 1 obliges states to secure everyones rights; art 13 obliges states to provide an effective remedy for rights-violations; arts 2, 5, 6 and 12 oblige states
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tion.116 Very occasionally, the English courts have held that a Convention right imposes a positive socio-economic duty on the state.117 Moreover, as the ECHR is a living instrument,118 further positive state duties may be created by way of judicial interpretation in the future. Notwithstanding these developments, however, a wide distance remains between the enforceable legal responsibilities of the state under the SA Constitution and the HRA. In particular, the latter instrument includes very little socio-economic content and the prohibition of discrimination (under ECHR, art 14) is narrower than the comparable right to equality in the former instrument (under s 9).119 Although the Convention rights may not reect a pure classically-liberal political philosophy, their egalitarian content does not go as far as that of the South African Constitution. (c) Aspirational or consolidating mission The two instruments commitment to contrasting political philosophies can only be understood fully in the light of their respective political and social contexts and purposes. First consider the South African Constitution: it is the product of the political process that marked the end of the undemocratic, authoritarian, illiberal and racist apartheid state, whose commitment to the rule of law had signicantly weakened by 1990, and whose policies and programmes wreaked socio-economic devastation largely along racial lines on the majority of South Africans, so that a desperately unequal distribution of land ownership, wealth, income and opportunities of all kinds
to establish courts, laws and enforcement mechanisms to protect life, to govern lawful deprivations of liberty, to provide fair trials, and to enable marriage. 116 The European Court of Human Rights has held, e g, that states have positive duties to protect people from threats to life under art 2 (Osman supra note 54), to protect people from inhuman treatment or torture under art 3 (Z v UK supra note 54), and to help groups to exercise their freedom of assembly and peaceful protest under art 11 by protecting them from counter-demonstrations (Plattform rzte fr das Lebenv Autria (1988) 13 EHRR 204). 117 For example in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, it was held that art 3 ECHR gave rise to a positive state duty to provide the existential minimum to asylum seekers who were destitute, statutorily prohibited from seeking employment, and refused support. 118 For example, Tyrer v UK (1978) 2 EHRR 1. 119 In England, the law prohibiting unfair discrimination has, since 1965, been increasingly regulated by statute, most recently the Equality Act, 2010. This legislation, however, is not seen as giving effect to a Convention right to equality, and the UK has chosen not to ratify art 1 of Protocol 12 to the ECHR, which contains a more far-reaching general prohibition on discrimination. South Africas Promotion of Equality and Prevention of Unfair Discrimination Act, in contrast, is intended to give effect to the constitutional right to equality in terms of s 9. It also goes further than the Equality Act, 2010, by dening equality to include equality in terms of outcomes (s 1(1)(ix)) and imposing positive duties to promote equality on both public and private actors (ss 247), whereas the latter statute imposes on public authorities only a narrower duty to promote equality of opportunity (s 149) and merely empowers, but does not oblige, private parties to take positive measures in dened circumstances (s 158).

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had become deeply entrenched by 1994. The liberal egalitarian settlement reached in the interim and 1996 Constitutions is a response to that state of affairs, and emerged somewhat fortuitously during a tense and violent period of confrontation, negotiation, compromise and, ultimately, democratic election and representative decision-making. The settlement constitutes an attempt to mediate the need for, and tension between, reconciliation and justice in post-apartheid South Africa,120 and comprised several elements including: constitutional reform centring on a justiciable and supreme Bill of Rights which balances provisions empowering the state to take positive steps to promote distributive justice against a right not to have ones private property expropriated without equitable compensation (together with the continued legal enforcement of pre-existing property rights); amnesty from civil and criminal liability for politically-motivated crimes and delicts conditional on truthful public testimony; restoration of land dispossessed by racially discriminatory means after 19 June 1913;121 and limited reparations for dened human rights violations inicted during the struggle for democracy. The cost of all these programmes was placed on the newly-constituted democratic state and thus spread across society as a whole, via tax contributions, rather than directly on those who had inicted or beneted from the harms, with the consequence that the post-apartheid settlement left much historical injustice uncorrected by perpetrators and beneciaries of wrongdoing.122 In short, the pursuit of (backward-looking) corrective and retributive justice was, to a remarkable and unforeseeable degree, sacriced in favour of the pursuit of truth, reconciliation, and a commitment that the new state would itself implement programmes to pursue greater (forwardlooking) distributive justice.123 It therefore follows that the moral legitimacy of the entire post-apartheid state, including its liberal egalitarian Constitution, depends to a large degree on the promotion of socio-economic equality and the alleviation of the vast distributive injustices in South African society. The Constitution empowers and obliges the state to assist in that process and is in that sense an aspirational or transformative instrument.124 This mission also encompasses a new commit120 Franois du Bois & Antje du Bois-Pedain Justice and Reconciliation in PostApartheid South Africa (2008). 121 This was date that the Land Act of 1913 came into force, which consolidated and extended throughout the newly-established Union of South Africa the territorial segregation practiced in the Transvaal and Free State Republics: Iain Currie & Johan de Waal The Bill of Rights Handbook 5 ed (2005) 564. 122 Du Bois & Du Bois-Pedain op cit note 120 at 116. 123 Ibid. 124 The transformative nature of the SA Constitution has often been emphasised: Pius Langa Transformative Constitutionalism (2006) 17 Stell LR 351; Dikgang Moseneke The Fourth Bram Fischer lecture: Transformative adjudication (2002) 18 SAJHR 309; Hugh Corder Prisoner, partisan and patriarch: Transforming the law in South Africa 19852000 (2001) SALJ 772; Arthur Chaskalson The Third Bram Fischer lecture: Human dignity as a foundational value of our constitutional order (2000) 16 SAJHR 193; Klare op cit note 111; Minister of Finance v Van Heerden supra note 109 para 142; Van Rooyen v S 2002 (5) SA 246 (CC) para 50; Soobromoney v

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ment to participatory democracy for all, the rule of law, governance that is open, responsive and accountable, freedom of movement, and non-racialism and non-sexism, as well as the wholesale rejection of all racially discriminatory laws, whether statutory or common law. Accordingly, the Preamble to the Constitution states that it is designed, inter alia, to [h]eal the divisions of the past, establish a society based on democratic values, social justice and fundamental rights, and improve the quality of life of all citizens and free the potential of each person.125 Similarly, constitutional rights may only be limited by lawful measures that are reasonable and justiable in an open and democratic society based on human dignity, equality and freedom.126 The HRA, on the other hand, was enacted in a wholly different socio-political context of democratic continuity and relative social stability. It was passed in 1998 by a British Parliament dominated by the newly-elected Labour Party, the Conservatives having been in power for the previous seventeen years. That Acts purposes were said to be predominantly practical,127 that is: (1) to enable claimants to enforce their Convention rights in British courts rather than having to incur the expense of exhausting internal remedies and then petitioning the European Court of Human Rights in Strasbourg;128 (2) to enable British judges to interpret and apply the Convention rights in the light of their intimate knowledge of British laws, institutions and society; and (3) to promote dialogue between British courts and the European Court of Human Rights about the appropriate application of the Convention rights in the United Kingdom.129 Moreover, emphasis has repeatedly been placed on continuity rather than fundamental change. During the third reading of the Bill, for instance, Lord Irvine stated that [t]he Bill does not create new human rights or take any existing human rights away; in R (SB) v Denbigh High School, Lord Bingham held that the purpose of the Act was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated;130 and Lord Hoffmann has observed that the values which [the Convention] expresses have deep roots in our national history and cul-

Minister of Health, KwaZulu-Natal (1998) 1 SA 765 (CC) para 8 (per Chaskalson CJ); Du Plessis v De Klerk (1996) 3 SA 850 (CC) para 157; S v Makwanyane (1995) 3 SA 391 (CC) para 262. 125 Likewise, the Epilogue to the interim Constitution described the Constitution as a historical bridge between the past of a deeply divided society characterised by strife, conict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. 126 SA Constitution, s 36(1). 127 Government White Paper, Rights Brought Home: The Human Rights Bill (1997) paras 1.14 and 1.18. 128 Ibid. 129 R v Horncastle [2010] 2 WLR 47 para 11 (per Lord Phillips). 130 [2007] 1 AC 100 para 29.

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ture.131 In fact, the HRA constitutes, in signicant part, a consolidating rather than an aspirational instrument. The United Kingdom, after all, was not only one of the rst states to sign and ratify the ECHR but also played a central role in its drafting,132 which was intended to reect common law understandings of human rights.133 For many such rights in particular, freedom from arbitrary arrest, imprisonment and cruel and unusual punishments; freedom of speech; ownership of property; and liberty of the person have long been recognised and to varying degrees protected in England by the common law134 and legislation.135 Notable examples during the late twentieth century were the growing statutory protection (partly under the inuence of European Community law) of the right to freedom from unfair discrimination,136 and the increasing judicial recognition or development, often with reference to unincorporated international human-rights treaties including the EHCR,137 of fundamental or constitutional rights embedded in the common law, notably rights to equality before the law, to have access to courts, to fair procedures, and to dignity and bodily integrity.138 The latter were given effect in various ways, including a presumption of statutory interpretation that Parliament does not intend to legislate contrary to common-law fundamental rights except by way of explicit language and the development of a more intense standard of anxious scrutiny in judicial review of administrative action.139 Many continue to follow Dicey in believing that the ordinary law as developed by the courts and enacted by a

Lord Hoffmann op cit note 77 at 422. A W B Simpson Human Rights and the End of Empire (2001). 133 Lord Hoffmann op cit note 77 at 431. 134 For example, Bushells Case (1670) Vaughan 135; Entick v Carrington (1765) 2 Wils 275; Leach v Money (1775) 19 StTr 1001; Somerset v Stewart (1772) 20 StTr 1. 135 For example, the Magna Carta, 1215; the Petition of Rights, 1628; Habeas Corpus Amendment Act, 1676; the Bill of Rights, 1689. 136 For example, Race Relations Act, 1965; Race Relations Act, 1968; Equal Pay Act, 1970; Sex Discrimination Act, 1975; Race Relations Act, 1976; Disability Discrimination Act, 1995; Race Relations (Amendment) Act, 2000; Disability Discrimination Act, 2005; Equality Act, 2006; Equality Act, 2010. Some parts of antidiscrimination law was enacted in order to comply with EU requirements, usually in the form of regulations made under the European Communities Act, 1972: Employment Equality (Religion or Belief) Regulations, 2003 SI 2002/1660; Employment Equality (Sexual Orientation) Regulations, 2003 SI 2002/1661; Employment Equality (Age) Regulations, 2006 SI 2006/1031. 137 Shaheed Fatima Using International Law in Domestic Courts (2005) 3528. 138 David Feldman Standards of review and human rights in English law in Feldman (ed) op cit note 114 at 322. Some common-law fundamental rights were also recognised by the South African courts before 1994 (see note 7 above), but due to the doctrine of parliamentary sovereignty then applicable these rights were often eroded or excluded by apartheid-era legislation: Pharmaceutical Manufacturers Association of SA: in re ex parte the President of South Africa (2000) 2 SA 674 (CC) para 37. 139 For example, Bugdaycay v Secretary of State for the Home Department [1987] AC 514, 531; Ex parte Brind supra note 19 at 7489; R v Ministry of Defence, ex parte Smith [1996] QB 517.
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sovereign Parliament, rather than a body of supreme constitutional law guarded by judges, is sufcient to protect human rights,140 and as explained above the HRA was indeed drafted so as to retain the constitutional principle of parliamentary sovereignty. It should be pointed out, however, that this picture of continuity and consolidation is incomplete. For time and again, before the enactment of the HRA, the European Court of Human Rights held that the United Kingdom had violated Convention rights and thus breached its international obligation to secure them.141 Although common law and legislation provided longstanding and evolving protection for human rights, that protection has come to be seen at least by the European Court of Human Rights and those who tend to agree with its decisions as uneven and partial.142 Another purpose of the HRA, therefore, was arguably to top up or complete the protection of human rights in England, at least to the level required by Strasbourg jurisprudence. That, after all, would be the only way to ensure that the United Kingdom complied with its Convention obligations and thus adhered to the rule of law on the international plane (as well as to avoid the embarrassment of repeated adverse ndings by the European Court of Human Rights). At least to this degree, then, the HRA is transformative. Nevertheless, clear water remains between the HRA and the South African Constitution in this regard: the social purposes of the latter instrument, arising in a vastly different political context with vastly different humanitarian and democratic imperatives, are more radical. (d) The role of international law A fourth contrast between the two human rights instruments concerns the role of international law in their interpretation and application. Although both are domestic enactments, the authoritative interpretation and application of which remains within the power of domestic courts, both oblige reference to international law: s 39(1)(b) of the South African Constitution provides that courts interpreting the Bill of Rights must consider international law, whereas s 2(1) HRA provides that courts determining a question which has arisen in connection with a Convention right must take into account any relevant Strasbourg jurisprudence. The latter duty has been
140

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188.
141 By 2002, British violations of ECHR rights were more numerous than those of any other Member State except Italy: H W R Wade & C F Forsyth Administrative Law 10 ed (2009) 139n14. 142 Lord Bingham, for instance, refers to gaps in the protection of human rights by the common law and legislation in The Rule of Law (2010) 68. This perspective is allied to the increasingly popular view that parliamentary democracy is not an ideal means of protecting rights and that Parliament is at least as likely to interfere with rights as to respect them (Feldman op cit note 138 at 320), a view that has gained plausibility in the wake of the British Governments response to terrorist threats: Conor Gearty Can Human Rights Survive? (2006) ch 4.

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interpreted by the English courts in a manner that has tied the effect of the HRA very tightly to decisions of the European Court of Human Rights. While South African courts treat international legal principles as mere tools of interpretation,143 the House of Lords has held that in the absence of some special circumstances courts should follow any clear and constant jurisprudence of the Strasbourg court, even though such case law is not strictly binding, and that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less, the reason being that the meaning of the Convention should be uniform throughout the states party to it.144 The UK Supreme Court has recently qualied this general approach, holding in R v Horncastle:
There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufciently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course.145

However, despite this small degree of freedom to interpret Convention rights in an indigenous manner, in the great majority of cases their meaning, as applied in England, will closely follow the content given to them by the European Court of Human Rights. Strasbourgs interpretation, in other words, generally constitutes both a ceiling and oor on claimants rights and remedies and the corresponding duties of defendants in England.146 This approach effectively disables British courts from developing a distinctively British human rights jurisprudence, whether narrower or more extensive than that in Strasbourg. It may seem appropriate to those who believe in universal human rights or a shared tradition thereof, but will disappoint those who believe that human rights are universal in abstraction but national in application147 or who strongly value national sovereignty and independence from foreign inuence for plausible reasons of constitutional and democratic legitimacy or cultural difference. Whatever ones convictions, however, the upshot is that the greater the role given to Convention rights in the interpretation, development and application of domestic English
Makwanyane supra note 124 para 35 (per Chaskalson P). R (Ullah) v Special Adjudicator [2004] 2 AC 323 para 20 (per Lord Bingham), following R (Alconbury Developments Ltd) v Secretary of State for the Environment [2003] 2 AC 295 para 26. 145 Supra note 129 para 11. 146 For example, in R (Greeneld) v Secretary of State for the Home Department [2005] 1 WLR 673 para 19, Lord Bingham held that the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. See also Manchester City Council v Pinnock [2010] UKSC 45 para 48. An important exception to this general approach is where a matter lies within the so-called margin of appreciation afforded by the ECtHR to signatory states: Alison L Young Precedent in Hoffman op cit note 33 at 958. 147 Lord Hoffmann op cit note 77 at 422.
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legislation and common law, the greater the power wielded by the Strasbourg court over English society, provided that the UK remains committed to performing its international obligations under the ECHR.148 Given that most Strasbourg judges hail from legal systems with a culture and history very different to that of common-law England, a growing degree of continental European inuence may over time place traditional common-law doctrines under pressure. There is, of course, currently no comparable nationalinternational dynamic in the interpretation and application of the South African Constitution. (e) Commitment to horizontality The nal relevant dissimilarity between the two human-rights instruments is their contrasting levels of commitment to horizontality, that is, the relevance of human-rights norms to legal relationships between private persons. As has already been explained,149 South African law positively requires, while English law merely permits, human-rights norms to inuence the judicial development of the private common law. In England, that is how the House of Lords and Supreme Court have interpreted the HRA, the drafting of which left the matter obscure. The South African Constitution, on the other hand, explicitly provides for various forms of horizontal effect: rst, each right binds private parties if, and to the extent that, it is applicable taking into account the rights nature and any duties it might justify150 a provision that requires courts to decide such questions on a case-by-case basis; secondly, if a court indeed decides that a right imposes a duty on a private person, it must be given effect through the application of legislation or the application or development of the common law;151 and thirdly, s 39(2) has been interpreted to impose a duty on the courts to develop the common law in order to promote human-rights values.152
148 A parallel dynamic exists in relation to EU law and the role of the European Court of Justice in Luxembourg. 149 In part II(d). 150 SA Constitution, s 8(2). 151 SA Constitution, s 8(3)(a). 152 Carmichele supra note 15 para 36. Fagan op cit note 1, argues that the Constitutional Court has misinterpreted s 39(2). He asserts that s 39(2), properly interpreted, does not impose a duty on courts to develop the common law whenever that would promote human-rights values; instead, it obliges a court which has decided to develop the common law for other reasons (e g commercial convenience) to ensure that this independently-justied development also promotes human-rights values. Those values, on this view, play merely a secondary role as a tie-breaker, helping courts to choose between competing, independently-justied changes to the common law; they cannot play the primary role of driving the common laws development. It is undoubtedly true that human-rights values can play this secondary role in the common laws development. It is also important for courts to take non-constitutional considerations into account when developing the common law. On the other hand, at least two arguments (there may be others) can be advanced in support of the courts interpretation of s 39(2), according to which such values must also play a primary role. First, although the ordinary meaning of s 39(2) does not necessarily imply that

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Clearly, then, the SA Constitutions commitment to human-rights horizontality is stronger than that of the HRA. That commitment must be understood as part of its liberal egalitarian political morality and aspirational mission. It reects the view that not only the state poses a threat to protection and promotion positive liberty and substantive equality; a comparable threat is also posed by private persons who wield social and economic power power that is very unevenly distributed in South African society, historically along racial lines. The Constitutions forward-looking goal to contribute to an evening of the socio-economic playing eld, on this view, requires measures to prevent an apartheid privatized through freedom of contract and other devices of the common law.153 Exactly what horizontal measures are required that is, what constitutional duties should be imposed on private parties will inevitably be a matter of legal and political controversy. In the rst place, given that all private parties (including, to a limited extent, juristic persons)154 bear constitutional rights, their constitutional duties cannot be co-extensive with those binding the state.155 In particular, it will be easier to justify imposing negative duties of restraint on private persons rather than positive duties to protect, promote or full rights. Some duties are explicitly provided for in the Constitution for example, everyones duty not to discriminate unfairly,156 but the wording of most rights leaves the matter of horizontal application open for later authoritative decision and incremental development. Correspondingly, provision is explicitly made for Parliament to enact legislation giving effect to its views about what

courts have a duty to develop the common law whenever that would promote human-rights values, it is worded with enough exibility to permit that interpretation; s 39(1)(a) provides that courts must promote human-rights values when interpreting the Bill of Rights; s 39(2) is part of the Bill of Rights and so must itself be interpreted to promote these values; the same values will be better promoted if they help to drive the development of the common law, as the court holds, rather than play only a secondary role; therefore, the courts interpretation of s 39(2) is justied by s 39(1)(a). (It should be noted that this argument assumes justiably, in my view that the values that underlie an open and democratic society based on human dignity, equality and freedom (s 39(1)(a)) are indistinguishable from, or at least largely overlap with, the spirit, purport and objects of the Bill of Rights (s 39(2)).) Secondly, as was argued at note 89 above, obliging courts to develop the common law to promote democratically-endorsed, human-rights values endows the common law with a measure of legitimacy that, given South Africas legal history, it may have lacked. 153 Du Plessis v De Klerk supra note 124 para 110 (per Ackermann J). 154 SA Constitution, s 8(4). 155 Governing Body of Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761 (CC) para 58 (per Nkabinde J): It needs to be stressed that the purpose of [horizontal application in terms of] s 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right. 156 SA Constitution, s 9(4).

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constitutional duties should be owed by private parties.157 In addition, the courts have a complementary duty to decide on a case-by-case basis whether, and if so how, a given right binds private persons.158 That in turn enables courts to decide whether Parliaments views in this regard, as expressed in legislation, are justiable and sufcient or whether they are fall short in some way, in which case the court must decide whether to re-interpret or invalidate the relevant statute, or whether to develop the common law to plug any statutory gap in giving effect to horizontally-applicable constitutional duties. If no legislation is applicable, the courts must decide whether to develop the common law instead. ( f) Comparative conclusions The aforegoing dissimilarities in the historical and political context, content and purposes of the HRA and South African Constitution cumulatively suggest that their respective inuence on the judicial development of the private common law is likely to differ in degree. The two instruments articulate overlapping but ultimately different political moralities, with the South African Constitution attaching far less value to the traditional conception of negative liberty and far more value to a more substantive conception of equality; they express different degrees of commitment to the idea of applying constitutional duties horizontally; the operation of one instrument is tied very tightly to the decisions of an international court and the notion of a shared, supra-national law of human rights while the other is a relatively autonomous, domestic measure raising no questions of national sovereignty; and one is intended to play a relatively consolidating role whereas the other is designed to facilitate wide-ranging changes to law, politics and society as a whole. These contrasts militate in favour of a greater degree of human-rights-based judicial development of the private common law in South Africa than in England. Of course, as was explained above,159 precisely how courts will tend to alter the private common law under the inuence of human-rights norms depends not only on the characteristics and context of the relevant humanrights instrument, but also on (1) the content of the private common law itself, (2) the extent to which it is supplemented by legislation, and (3) prevailing views about the constitutional role of courts as law-reformers. On this last point, legal culture concerning judicial law-making was similar in

157 SA Constitution, s 8(3)(a) refers in general to legislation giving effect to rights that bind private persons; other provisions explicitly oblige or permit the enactment of national legislation to regulate other privately-binding rights, e g, s 9(4) (right to freedom from unfair discrimination), ss 23(5) and (6) (right to fair labour practices), s 24(b) (right to freedom from environmental pollution), and s 32(2) (right of access to any information held by another person that is required for the exercise or protection of any rights). 158 SA Constitution, s 8(3)(a). 159 In part III(d).

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England and South Africa before the democratic era, notwithstanding the differences in their laws origin and content.160 For the latter, like the former, had
an uncodied system . . . shaped by precedents openly produced in, for the most part, Courts of general rather than specialist jurisdiction, and by legislation mostly drafted in the style of detailed and comprehensive rules intended to minimise judicial gap-lling.161

The subsequent enactment of the HRA and the South African Constitution, however, has triggered a partial divergence in two systems conceptions of the separation of powers. Formally at least,162 the HRA retains the doctrine of parliamentary sovereignty, but it still increases judicial power by obliging Convention-compliant statutory interpretation, permitting declarations of statutory incompatibility with Convention rights,163 and empowering judicial review of public authority conduct for compatibility with Convention rights, some of which impose positive duties. The South African Constitution, however, increases judicial power still further: by empowering judicial review and invalidation of legislation and all state conduct; by imposing a far greater number of positive duties on the state to protect and full constitutional rights, including rights to a wide range of socioeconomic benets; and by obliging courts to interpret legislation and to develop the common law in order to promote constitutional values and objectives. Accordingly, the Constitutional Court has held that, although the major engine for law reform should be the legislature and not the judiciary, given that the Constitution has brought into operation, in one fell swoop, a completely new and different set of norms it follows that the courts must remain vigilant and should not hesitate to ensure that the [civil and criminal] common law is developed to reect human-rights values, that judges owe this duty even if the parties do not request the court to develop the common law, and that this duty is different in degree to that which the
160 Franois du Bois Introduction: History, system and sources in C G van der Merwe & Jacques E du Plessis Introduction to the Law of South Africa (2004) 3. 161 Ibid. 162 In The New British Constitution (2009) ch 3, Vernon Bogdanor argues that despite its formal retention of parliamentary sovereignty, the HRA has in substance increased judicial power and is the cornerstone of a set of constitutional changes (including accession to the EU; devolution; reform of Parliament; increased use of referenda; the creation of a new Supreme Court; and so forth) that together represent an on-going transition from the old system based on parliamentary sovereignty to a new one based on the sovereignty of a constitution. 163 In practice, this closely approximates a judicial power to invalidate legislation, since there is great political pressure on the UK to comply with its international obligations under the ECHR and the only way to do so, following a judicial declaration that legislation is incompatible with a Convention right, is to repeal or amend the legislation accordingly: M Elliot Parliamentary sovereignty and the new constitutional order: Legislative freedom, political reality and convention (2002) 22 Legal Studies, 340; F Klug A Bill of Rights: Do we need one or do we already have one? 2007 Public Law 701; Perry op cit note 4 at 1156.

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Canadian Charter of Rights casts upon Canadian judges.164 For all these reasons, judges now wield a greater degree of legal power in South Africa than in England, which also tends to suggest that the inuence of humanrights norms on the private common laws development will be greater here. Only the most supercial remarks can be made concerning the content of the English and South African private common law of obligations and property and the extent to which these bodies of law came to be supplemented by legislation. First, it is generally true to say that by the late nineteenth century both embodied a classically-liberal outlook: freedom of contract was strongly (although never absolutely) protected, as were individual property rights. This, after all, was the heyday of the economic philosophy of laissez-faire, and ideas of natural-law property rights were popular.165 The operation of markets, moreover, has always depended on trustworthy protection of property and contracts.166 Secondly, this tradition remained substantially intact in both legal systems throughout the twentieth century. But in England, this approach was qualied by legislation enacted in parallel with the growth of the welfare state, inter alia, (1) limiting freedom of contract, regulating the substance of contractual obligations out of a concern for fairness and justice and to protect weaker contracting parties (eg Defective Premises Act, 1972; Unfair Contract Terms Act, 1977),167 (2) expanding the scope of tort liability (eg Consumer Protection Act, 1987), contributing to a progressive socialisation of harm,168 (3) establishing various compensation schemes for accident victims (eg Health and Safety at Work Act, 1974), and (4) providing protection for some human rights in private relationships (eg Sex Discrimination Act, 1975; Race Relations Act, 1976). During the same period the South African legislature constructed the lamentable apartheid state. Although some statutes similar to those found in English law were enacted,169 the content of our private common law was qualied by less legislation. Two nal points then emerge concerning the
164 Carmichele supra note 15 para 36. Immediately before differentiating the judicial-legislative relationship in Canada from that under the SA Constitution, the Court cited the following dictum from R v Salituro (1992) 8 CRR (2d) 173 (per Iacobucci J): Judges can and should adapt the common law to reect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless there are signicant constraints on the power of the judiciary to change the law. . . . In a constitutional democracy such as ours it is the Legislature and not the courts which has the major responsibility for law reform. . . . The judiciary should conne itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. (Emphasis supplied). 165 P S Atiyah The Rise and Fall of Freedom of Contract (1979); Stephen A Smith Atiyahs Introduction to the Law of Contract 6 ed (2005) 9. 166 MacCormick op cit note 62 at 22630. 167 See Atiyah supra note 165 and Smith supra note 165. 168 Tony Weir An Introduction to Tort Law 2 ed (2006) 36. 169 For example, Workmens Compensation Act 30 of 1941; Motor Vehicle Insurance Act 29 of 1942; and their successors.

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state of the law at the time the HRA and South African Constitution were enacted. First, it is arguable that there was, and possibly remains, a greater dissonance between the egalitarianism of the South African Constitution and South African private common law than between the HRA and English common law.170 Secondly, a greater amount of legislation supplementing and qualifying private common-law rules and principles was passed in England than in South Africa.171 Both contrasts may provide additional reasons to believe that the impact of the two human-rights instruments is likely to differ in degree. V CONCLUSION This article has explored several related issues. First, it analysed the different ways in which human-rights norms could, in principle, affect the judicial adjudication of private law claims, distinguishing at least six forms of inuence. It then explained that South African law requires, whereas (currently) English law merely permits, human-rights norms to inuence the judicial development of the private common law. From a theoretical perspective, the content of such inuence is contingent on a variety of features of a legal and political system and necessarily turns, to a degree, on judicial choice. Furthermore, although permitting or obliging this inuence may be thought costly, since it tends to unsettle the law and to promote judicial law-making, it is nevertheless of some value in itself, because it has the potential to endow the normative judgements underpinning the com170 Such a sweeping claim must, of course, be treated with caution and I do not commit myself to it here. Its full justication would require a far more detailed, evaluative comparison of the South African and English law of obligations, property, and human rights. Consider, e g, that English common law does not include the action of the unauthorised administrator (negotiorum gestio) and is generally less willing than South African law to impose tortious/delictual liability for negligent omissions to rescue or protect others (see Reinhard Zimmermann The Law of Obligations (1996) 43350 and 10437 respectively); in both respects, South Africas common law is less individualistic than that of England. These examples underline the need emphasised in this articles introduction for South African lawyers to debate how constitutional rights ought to inuence private-law adjudication in discrete, concrete contexts, rather than in a broad, abstract sense. 171 Again, a full justication of this claim would require more detailed, comparative research. It should also be noted that, during and since the transition to democracy, the South African legislature has enacted a great deal of statutory law regulating private relations and providing for social welfare, indicating that any contrast with English law may have diminished. These include the Occupational Health and Safety Act 85 of 1993, the Compensation for Occupational Injuries and Diseases Act 130 of 1993, the Labour Relations Act 66 of 1995, the Basic Conditions of Employment Act 75 of 1997, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, the Employment Equity Act 55 of 1998, the Rental Housing Act 50 of 1999, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Unemployment Insurance Act 63 of 2001, the Social Assistance Act 13 of 2004, the National Credit Act 34 of 2005, the Childrens Act 38 of 2005, the Consumer Protection Act 68 of 2008, and the Companies Act 71 of 2008.

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mon laws development by judges with a measure of legitimacy that they might otherwise lack. Finally, South African and English law was compared in a little more depth and the argument was made that human rights are likely to have a greater impact on the former legal systems private common law. Much work is still to be done. There are many debates to be had among judges, practitioners, and commentators about what inuence particular constitutional rights should have on particular areas of the law of obligations and property. That, I have suggested, is where future discussion ought to focus. Given the breadth and complexity of the issues at stake, it is difcult to justify any monolithic view about what effect human-rights law should have across the board. I hope that the theoretical and comparative analysis presented above will help to facilitate those debates by providing a clear and context-sensitive explanation of the inuence of human-rights norms on the private common law in South Africa.