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Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Abstract

ZITZKE, Emile. The history and politics of contemporary common-law purism. Fundamina (Pretoria) [online]. 2017, vol.23, n.1, pp.185-230. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2017/v23n1a8.

This article explores the phenomenon of common-law purism in South Africa from a critical-legal-realist perspective, in historical context. The problem addressed in this piece is that the politics that could underlie common-law purism has not been comprehensively explored before. The problem is unpacked by conducting an archaeological study into what could be called "classical common-law purism" that once featured in the mid-1900s of South African legal history in terms of which various judges and academics committed themselves to the task of purifying the South African common law from English influences in favour of untainted Roman- Dutch law. In this regard close attention is paid to the lives and law of the late Chief Justice LC Steyn and Professor JC de Wet as two prominent figures often associated with this movement, with the aim of linking the two thinkers' socialisation and political commitments to their purism. It is then shown that at the time when classical common-law purism was on its deathbed, it was rejuvenated and took on a contemporary form. The goal of the movement was no longer to purify Roman-Dutch law from English "stains"; instead, the objective became to shield the common law against a human-rights inspired Constitution. In that discussion it is demonstrated that contemporary common-law purism is currently a dominant theoretical approach, at least in the law of delict and, perhaps through a process of abstraction, in "private" law more generally. Specific attention is paid to the views of various delict academics to illustrate the prevalence of contemporary common-law purism. In that process an attempt is made to draw connections between various thinkers' socialisation, political commitments and their purism. Finally, some concluding thoughts are provided on the possible political commitments contained in the purist movement. Essentially, the invitation that is extended to private-law lawyers is to be more politically candid about what they aim to achieve, as a matter of justice, in the stances that they take on the issue of constitutional application to common-law problems.

Keywords : Constitutional avoidance; common-law purism; critical legal studies; American legal realism; critical legal realism; law and politics; constitutional application; human rights and private law; private-law theory.

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