n South African Law Journal - The influence of human rights on private common law




This article presents a theoretical and comparative analysis of the influence 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 influence, giving examples. It then contrasts South African law against English law, explaining that, while we require constitutional rights to influence judicial development of the common law, comparable influence is merely permitted in England under the Human Rights Act. The argument is then made that, from a theoretical perspective, the content of such influence 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 influence is of some value, because it has the potential to endow the normative judgements underpinning the common law's development by judges with a measure of legitimacy that they might otherwise lack. Finally, significant differences in South African and English constitutional arrangements, human-rights provisions, and socio-economic and political contexts suggest that the influence of human rights will be greater in South Africa. The clearer understanding yielded by this article's theoretical and comparative analysis places us in a better position to engage in more concrete debates about how particular constitutional rights and values should influence particular areas of private law in South Africa in the future.


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