Class notes
Common law, Customary law ,Customs - Block 1 Year 1 notes Intro to law
- Institution
- University Of The Witwatersrand (wits)
Lecture/study notes on the common law, relation to other sources of law, customary law, customs.
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COMMON LAW, CUSTOMARY LAW AND CUSTOMSTHE COMMON LAW
The common law is a set of rules and principles, often very ancient ones, mostly from Roman
Dutch law and English law that have not been written down in legislation.
The common law has many rules, and some of them are so well entrenched into our law that
they are binding.
The common law is very extensive, and it contains all sorts of principles
- some being regarded as merely persuasive, while others are so well established that
they are treated as binding.
- For example, murder is a common-law crime. It exists not because a statute says so
but because this is an extremely well-established principle of our common law.
A court would never ignore the common-law definition of murder and would develop it only
with the greatest care.
Our common law comes from the Roman-Dutch law, from English law to some extent, and
sometimes even from ancient Roman law.
The old Roman-Dutch authorities were men such as Hugo de Groot, Simon van Leeuwen,
Johannes Voet and Johannes van der Linden. You will read more about them in Term 2.
Not all Roman law applies to us. It has been interpreted, developed and reformulated by judges
in the decisions they make and the precedents they set.
*The old common law of adultery is no longer part of our law
Courts can change the common law especially in cases of principles that are so well established.
In our law the courts are careful to develop these principles.
- An example can be seen in the common law crime of murder
The principles surrounding this common law crime are so well established within our
law that the courts are very carful when dealing with murder.
The definition of common law is widened and can also include a bit of case law. Common law
and case law are not the same source.
- The reason that case law, or judicial precedent is included is because most of their old
principles dealt with under the common law are considered in court cases.
The phrase 'common law' in the South African context is sometimes used narrowly to refer
specifically to these old Roman-Dutch authorities.
In this course, however, the phrase is generally used in a wider sense to mean all the old,
established principles of law that have been passed down to us and which have been applied,
interpreted and developed in the courts.
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, In this sense the common law encompasses judicial precedent to a considerable extent – it is
often difficult or impossible to disentangle the two – but obviously excludes all legislation and the
Constitution.
When there is no statute that provides authority on a matter, you could rely on common law
HOW DOES THE COMMON LAW RELATE TO THE OTHER SOURCES?
• Common law has also influenced legislation as many common law rules have been provided
for in legislation
• It is recognized by the Constitution, particularly in s 39 (see above).
• Legislation as a source that is higher up in the hierarchy can change the common law at any
time.
• Because the courts consider the old common law rules within their judgement you will see
that the common law is developing alongside the judgements all the time. That is how the
common law rules become part of judicial precedent
• Because judicial precedent is higher up on the hierarchy, the courts will use common law
principles within their discretion. They will decide which of the common rules to uphold and
which to discard
• It can be changed by legislation at any time. Legislation trumps or overrides the common law.
• It is constantly being developed by the courts, and thus becomes entangled with judicial
precedent. Though it is said to be a ‘binding’ source of law, the courts often have considerable
freedom as to which common-law principles they uphold and which they disregard.
• Custom is also entangled with the common law and with precedent, since it is common-law
principles (recognized by the courts) that tell us when the courts will recognize customs!
• A lot of the common law rules had a great influence in our law as some of them have been
turned into legislations.
o E.g. the only common law principle of a ‘right to a fair hearing’
o In Latin terms, the Audi alteram partem rules meaning ‘the right to hear the other
side’ has been turned into legislation.
o It basically provides that no one may judged without a fair trial.
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