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Sibling Mixed Systems: Reviewing South African/Scottish Comparative Law

Document Cited authorities 3 Cited in Related
Vincent
Published date01 September 2016
Author
Pages257-284
DOI10.3366/elr.2016.0359
Date01 September 2016
INTRODUCTION

Active comparative work involving the legal systems of South Africa and Scotland has developed apace in the period since the South African reforms which culminated in the final new constitution of 1996.1 Even though it is probably generally true that the mills of legal development which may be influenced by comparative legal scholarship grind slowly, it is probably timely to attempt a review. The case is strengthened by the fact that some two decades have passed since a recommencement of contact which started in the 1950s but went dormant because of the apartheid regime. On that basis, there has been contact for some sixty years even though active contact was in abeyance for about half of the period.2

This review will be restricted to South African influence on Scottish law. The late Professor Sir Thomas Smith (1915–1988) engaged with South African Roman-Dutch law specialists in the 1950s with a view to the potential benefit to the development of Scots law on the basis of its Civilian roots. This paper will seek to comment on what Smith's idea has led to for Scots law, without attention to any possible reciprocal relevance to South African law.3 The first section is a short account of the two connected phases of contact initiated by Smith. The second part illustrates the possibility of the extreme points of both affinity and difference by reference to issues from property law, in which the common law of the two systems is very much kindred. A third part will attempt tentatively to assess the present state of influence of South African law on Scottish legal development. This will be on the basis of selective reference to modern textbooks on Scottish private law and, more significantly, by a survey of Scottish case law since 1999 in which reference is made to South African law.

 T B SMITH Early interest in South African law

Appointed to the Aberdeen chair of Scots Law in 1949, T B Smith,4 early in his career, recognised the potential benefit to Scots law of contact with South Africa. Referring to the relevance of Roman law to Scots law, he said the former was “by no means spent as a potential comparative source, especially as expounded in contemporary South African law.”5 Smith very probably encountered South African Roman-Dutch law in its case law form as an undergraduate at Oxford.6 It is not known if he attended Professor R W Lee's lectures on the subject,7 but he would almost certainly have known Lee's book,8 which presents the subject of South African Roman-Dutch law as a surviving specimen of the ius commune, largely on the basis of South African case law. In this regard, it seems likely that early contact with a South African, one T W Price, was also a factor.

 Smith and Price

Both Smith and Price were born in 1915. In the late 1930s, Smith was a top student at Oxford.9 In 1946/1947, after War service, he was attached to the Foreign Office.10 Smith was admitted to Gray's Inn in 1935 and called as a barrister in 1938. Price, a law prizeman at Cambridge in the late 1930s, was lecturer in Roman-Dutch Law there in 1945/1946 before his appointment as Professor of Roman-Dutch Law at Cape Town University.11 He was also a member of Gray's Inn, being admitted in 1944, and called at the bar in 1950.12 Professor R W Lee, the Oxford expert on Roman-Dutch law, in a preface dated “All Souls Day, 1945” to the 4th edition of his book on the subject, acknowledges the assistance of Dr T W Price of Trinity Hall, Cambridge.13 Lee was a Master of the Bench of Gray's Inn and he may have been a link between Smith and Price.14 In any event, that Smith and Price (probably a Roman-Dutch “purist”15) met early in their respective careers is supported by an entry in the journal of Sir Randall Philip, a member of the Scottish legal establishment.16 In late January 1953, Philip was in Aberdeen and tells that he “had tea with the Tom Smiths at their new house 50 College Bounds, where I met Professor Price from Capetown, whose subject was Roman-Dutch law”.17 If Price was a guest of Tom and Ann Smith in 1953,18 it seems very probable that he and Smith met in the period in which they were both in England. It seems that there was a certain bond of friendship between them until Price's early death in 1966.19

 Development of Smith's interest in South African law

It appears that Smith saw South African law as having especially high potential in terms of Scots law's development. That was because the private law of both systems was essentially a later ius commune form, represented in the modern systems of both jurisdictions by the texts of learned writings developed through the process of case law to give a workable structure and system. In most areas, the South African development is stronger than the Scottish one. In these respective legal chemistries Smith saw the English law influence as a tide that needed to be stemmed, especially in Scotland. As he saw it, the need for work clarifying and consolidating Roman sources was especially strong “in those countries where there has not been codification and where Roman principles have had to contend with the constant pressure of Anglo-American common law influence – notably South Africa and, to a much greater extent, Scotland”.20

In 1953, Smith published an article in the South African Law Journal about the development of Scots law since the early eighteenth century and the form and character it came to have.21 The question has rightly been asked why he published this manifestly Scottish contribution in a South African journal.22 For present purposes, that question is more important than why the South African Law Journal chose to publish a piece of apparently limited significance to its sphere of interest. A concluding sentence in the piece offers a possible explanation: “There are, moreover many indications that the Scottish Law Faculties are encouraging contact with jurists on the Continent, in America, and in the Dominions – especially South Africa, which has a legal system not dissimilar to our own”.23 Smith, it seems, was seeking to send positive message to South African lawyers about possible contact with their Scottish counterparts.

Forging links with the modern Roman-Dutch law specialists of South Africa was only part of engaging with a wide “mixed system” legal family or, perhaps, “community”, which Smith saw Scotland belonging to. Part of his position was, of course, antipathy to any ascendancy of English law over the Scottish system. A 1950 Aberdeen University Law Faculty minute – unmistakeably from the pen of the then Dean, Smith – encompasses both the Civilian heritage and opposition to English influence points. Responding to intimation that Tulane University in Louisiana had established an Institute of Comparative Law, the text reads:

It has been the particular glory of that University to have fostered and proclaimed the tradition of the Civil Law which Louisiana and Scotland alike share. Thus has been preserved a true legal perspective; and thus has been curbed the tendency of our immediate neighbours to accept uncritically the Anglo-American Common Law as the ultimate embodiment of revealed legal wisdom.24

Bringing South African academic lawyers to Scotland to teach was very much a feature of T B Smith's approach to comparative law. There can be little doubt that he saw this as potentially beneficial to legal education as well as being positive for the development of the Scottish legal system. The first such visitor may have been Price who, as already noted, was apparently in Aberdeen, visiting the Smiths, in January 1953.25 There is no reference in the minutes of Aberdeen University Law Faculty Meetings to any teaching contribution by Price at that time. However, minutes of the Faculty Meeting of 28 May 1959 record a recommendation to the Senate that Dr Glanville Williams, Cambridge, whom failing Professor T W Price, Cape Town, be invited to deliver a University Lecture in session 1959–1960. A minute of 22 October 1959 records that Dr Williams declined for session 1959–1960; reading that with a minute of 28 April 1960, recording a recommendation to Senate that Dr Williams, whom failing Professor F H Lawson, Oxford, be invited for 1960–1961, suggests that Price may have given a 1959–1960 lecture. But the Law Faculty minutes do not mention this, and I have not yet been able to confirm it from University records.

Smith's time at Aberdeen (1949–1958) was extremely full and busy.26 The Law Faculty minutes are testimony to this. Although he was probably motivated to pursue contact with South African lawyers, there was simply no time for any concerted effort. This changed when he moved to Edinburgh in 1958. Taking up the chair of Civil and Comparative Law, he no doubt felt that he had a mandate to engage in and promote comparative work. Smith opted to do this primarily via the “mixed system” route.27 It was at this stage that he commenced intensive contact with South African scholars who, as he saw it, had much to offer Scots law. Smith brought mixed system academics to Edinburgh, including leading South African private law scholars Ben Beinart28 (Cape Town) and the outstanding jurist J C de Wet (Stellenbosch).29 A recent contribution to this journal30 most interestingly shows that Smith took advice from the noted US comparatist Max Rheinstein, who had visited South Africa in the late 1950s. Rheinstein recommended a number of scholars but, as Alisdair MacPherson observes,31 Smith had already made arrangements for Beinart, De Wet, and J C Scholtens (Witwatersrand)32 to teach at Edinburgh. It seems that Smith may have been looking for independent confirmation of academic standing, because his position favoured scholarly merit regardless of possible political affiliation. My own undergraduate teacher, the brilliant and prolific Peter Hunt, was different. He worked under Smith as a young PhD student33 and was given teaching work which, because of...

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