The Legal Historian as Subversive or: Killing the Capitoline Geese

1. INTRODUCTION

Richard Ireland began his review of Sir Geoffrey Elton's book on Maitland with the statement that history and myth were once indistinguishable creatures, filled with heroes and grand deeds, evolving to encompass nations, empires, and classes, before eventually reflecting on the historians themselves. This evolution illustrates a shifting focus within historical study, reflecting on who is included in the narrative—particularly absent from the South African private law discourse are the voices of peasants and classes. The text addresses the historical consciousness of private lawyers, filled with potentates like Justinian and Charlemagne, and intellectual figures such as Bartolus and Grotius. It poses the question of why South African legal history, tracing from Rome through Bologna and the Netherlands, neglects to account for local voices. The analysis serves to advocate for a more introspective approach among historians of South African private law, urging them to examine their methodologies and biases.

2. CURRENT METHODOLOGICAL VARIATIONS

2.1 Teleological Pragmatism

The concept of "teleological pragmatism" refers to the 'productive misunderstanding' of historical material that is retrofitted to serve contemporary needs. This technique was practiced by glossators who interpreted the Corpus Iuris without historical understanding, allowing Roman law to apply to their contemporary economic and social realities. The approach continues today, as exemplified by Van der Merwe and Olivier's interpretation of the fortunes of the lex Aquilia. They state that the lex Aquilia is aimed at compensating for wrongfully caused property damage, raising the question of whether all cases of wrongful damage fit this action's criteria. Their logical conclusion implies that the action should extend to all cases of wrongful and negligent damage, even as they acknowledge competing actions remain in South African law. They neglect the judicial resistance shown towards extending the Aquilian action to include 'pure economic loss', a concept that denotes loss not tied to physical harm.

The tension of expanding liability in this area has fluctuated ideologically, economically, and structurally throughout the 20th century. For instance, early case law like Cape of Good Hope Bank v Fischer indicated a move toward broader liability, but subsequent rulings, including those of Union Government v Ocean Accident and Guarantee Corporation Ltd resisted this expansion. The Appellate Division eventually accepted pure economic loss in Administra-teur, Natal v Trust Bank van Afrika Bpk, yet continued to differentiate between physical and economic harm, mirroring similar hesitations in English law.

Critically evaluating how judges balance policy considerations with evolving legal doctrines reveals the complexities of judicial decisions regarding economic loss, reflecting an ideological struggle within South African law. This struggle raises inquiries into whether fears of economic competition underpin the courts' reluctance to recognize pure economic loss liabilities, suggesting the need for scrutiny into the influence of the socio-economic context on the role of legal history in practice.

2.2 The Feenstra School

Robert Feenstra urges legal historians to immerse themselves within the historical context of legal concepts rather than utilitarian interpretations. He emphasizes a broader spectrum of influences beyond mere legislation, arguing for recognition of non-Roman legal components from various socio-political contexts. Feenstra's criticism of teleological pragmatism stands as a counterpoint to the methodologies that seek contemporary applicability over historical understanding. His legacy in South African legal studies is exemplified by his doctoral student, D H van Zyl, who subsequently critiqued the fragmented interpretations that dominate the local legal historical discourse. By presenting the development of legal concepts through neglected historical contexts, Van Zyl exemplifies Feenstra's call for an integrated narrative that attentively incorporates chronology and societal factors within legal dynamics.

The Feenstra school's model regarding the evolution of legal principles includes:

a) Roman law as the foundation, particularly Justinian law;
b) Glossators;
c) The Ultramontani (the School of Orleans);
d) The Commentators;
e) The Humanists;
f) French law developments until codification in 1804;
g) German law and its historical evolution leading to 1900 codification;
h) Dutch legal development up to 1838 codification.

This systematic approach serves to contextualize the influences shaping South African private law, fostering a methodology that prioritizes the historical evolution through intellectual currents while acknowledging local distinctiveness.

3. THE LEGAL HISTORIAN'S OPPORTUNITY

The agenda of a historian specializing in South African private law may oscillate between affirming existing doctrines and seeking to destabilize perceived legal certainties. The latter approach serves as a more critical contribution to the field, promoting the idea that legal history ought not to merely reinforce current knowledge but explore alternative legal interpretations and practices. Such historical inquiry becomes crucial in a legal context saturated with objectivist assumptions that maintain a facade of order over doctrinal confusion.

Roberto Unger advocates for a recognition of disharmonies within legal systems, suggesting that legal historians should unveil tensions and alternative structures. The historicist lens allowing historians to dethrone the 'kings and popes' of legal thought promotes an understanding of law that emphasizes inclusivity of classes often sidelined in historical narratives. This reconstructive effort can invigorate legal discourse and reinterpret legal institutions through a more humanistic lens.

To illustrate this opportunity, the essay juxtaposes three distinct peasant communities and their legal transformations regarding land ownership. These examples reveal how legal principles, shaped by socio-economic forces and class dynamics, operate within historical contexts unlike the Schwarzian principles often taught in conventional legal education. The transformation of land rights from feudal arrangements in medieval Europe to legislative measures in nineteenth-century Ireland and the systematic erosion of African land tenure in South Africa during colonial and apartheid eras emphasize the nuanced interplay between law and social conditions, revealing how legal changes are not solely dictated by textual interpretations but profoundly influenced by societal shifts.

CONCLUSION

In summary, the text emphasizes the importance of rethinking and broadening the scope of legal history studies, suggesting a more integrative approach that considers socio-economic factors, ideological currents, and the voices of marginalized groups, particularly peasant communities. The transformative potential within South African private law can be realized only through a re-imagined history that breaks free from doctrinal dogmatism and fully embraces the complexities of legal culture.