“You need political will to make big changes. The idea of trying to correct injustices of the past that stretch across time is a huge task,” said Danie Visser of the Department of Private Law at the University of Cape Town. “The big fixings of the past can be done only by political action, and the law is limited to implementing the grand designs.”
“Much of the law is aimed at fixing things that have gone wrong. I want to demonstrate what the law can and cannot do to change the wrongs of the past and the essential impossibility of the law decolonising itself. Decolonisation of the law can only happen when the political moment allows it – and then the agenda must be specific and targeted, rather than aimed at the impossible notion of replacing the whole system.”
Visser’s seminar was divided into three parts – starting with a whirlwind tour of 2000 years of legal development; moving on to an overview of large-scale re-allocations of land including in Ireland in the early 20th century, in Germany in the late 20th century, and in South Africa (ongoing); and, finally, focusing in detail on his STIAS project which looks at the evolving area of the law that deals with the restitution of gains made by interfering with the rights of others.
How modern law came about
Visser explained that (with some exceptions) most legal systems today have their basis in Roman or English Common Law or a combination of both. “The Romans developed a system that laid down in advance abstract norms for every situation you might face,” he said. “They created the first efficient science of secular law.”
He explained that Roman Law was at its height from about 100 CE to 300 CE, enduring until multiple invasions weakened the Roman Empire and it was divided into East and West. “ In 476 CE the Barbarian leader Odoacer was crowned King of Italy and this is usually taken as the symbolic date of the fall of the Roman Empire in the West. However, in 528 CE the Eastern Emperor Justinian put together the compendium known as the Corpus Juris Civilis which contained the essence of Roman law and without which we would have known very little about Roman law today.”
After the Dark Ages from 5th – 11th centuries, there was a need to restore law and learning. The University of Bologna, considered to be the first university in the Western World, was created and from the 12th century Roman law arose from the dead. “It developed as a living system infused into the administration of daily life and quickly spread across Europe as more universities developed.”
“The law was moulded into a similar system across Europe with local variations,” he added. “Scholars all conversed in Latin – and there was a universal science of Roman Law. At the beginning of the 19th century this was codified, simplified and captured in codes, of which the Code Napoléon published in 1804 and still in use today, was the first really effective code, used as a model by many countries, as was the German Civil Code, enacted a century later.”
He explained that English Common Law developed slightly differently – originating in the early Middle Ages at the King’s Court as the Curia Regis and aiming to replace local or regional laws. However, even English law was influenced by Roman law, since most of the judges were clerics who had studied Roman Law.
Colonisation between the 15th and 19th centuries took the law of the colonisers to the globe with the new colonies adopting either Roman-law inspired Civil Law or English Common Law or a mixture of both (although Shari’a Law – a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur’an and Hadith and other religious and customary laws were often given some recognition within the larger law of the land. However, postcolonial attempts in regions such as Africa and Indonesia to give customary law a greater role have been only marginally successful and remain mostly aspirational.)
“This adoption was the result of colonial imposition and of voluntary borrowing. There is a clear line of borrowing things that work throughout the ages and different legal systems influence each other,” explained Visser. “No law is intrinsically better than another. The law of the colonists was retained post colonisation because it was flexible enough to be adapted to suit local conditions and, of course, borrowed law is never exactly the same as the original.”
Law as the God of big things: Giving back a country
Moving to the question of land re-allocation and restitution, Visser pointed out that “the law cannot be the originator of undoing land holdings on a country scale since it is the legitimator of the land holdings as they stand – it needs a political decision, and then the law controls the parameters.”
He focused in detail on some examples – the Irish Land Question which after centuries of land being held by Anglo-Irish landowners with Irish tenants was only resolved in the early 20th century via several parliamentary acts culminating in the Wyndham Land Act of 1903 which finally ended Anglo-Irish landlordism.
With the reunification of Germany, the Joint Declaration on the Settlement of Open Property Question of 23 September 1990 was incorporated into the Unification Treaty which allowed lands to be handed back including property taken for religious or racial reasons. “Again, showing that the legal system can’t do it by itself, it has to come through political decisions.”
In South Africa the Restitution of Land Rights Act of 1994 was passed to provide for the restitution of land rights to individuals or communities dispossessed under racially discriminatory laws and established a Commission and Land Claims Court. “It committed to reinstatement of land rights but it was a compromise. The 1913 Land Act consolidated the colonial taking, which meant that land taken after that was only a fraction of the original,” said Visser. “Land reform is a moral, social and economic imperative for South Africa and the Restitution of Land Rights Act is just a part of the overall programme to redress dispossession, but it is a visible part, which is not progressing fast enough. Nevertheless, last year R4.7 million was paid in land claims and a total of R57 billion has been paid in total. Once again, the law is not the instigator but rather an important contributor once the political decision is taken.”
The God of small things: Giving back ill-gotten gains
In the final part of his presentation Visser focused on the law of unjustified enrichment flowing from the invasion of another’s rights. “I’m hoping to develop a theoretical model to achieve corrective justice by illustrating the possibilities for the law to come to the aid of persons at whose expense parasitic profits have been made.” He included examples from the United States and Germany.
He explained that the evolution of the law of unjust enrichment includes enrichment by transfer (e.g. mistakenly paying a debt twice), imposition (e.g. inadvertently building a house on land belonging to someone else) and interference (e.g. renting out someone else’s house without their permission). “Transfer and imposition are about the claimant’s own action causing the defendant’s enrichment, the while interference is about the defendant’s action enriching him- or herself at the expense of the plaintiff. This third category was only properly identified in the 20th century.”
“Measures of recovery for enrichment by interference can vary between full proceeds, profits, proportional profits and fair market value with the choices reflecting different societal values.”
He pointed out that in most countries issues of unjust enrichment involving clearly marketable things like property and intellectual property are generally well handled, however, interference in highly personal rights (such as making money by exploiting the right to privacy of celebrities) are not as well developed. This is also an area where the law may wish to consider deterrents to limit such exploitation.
“I believe that claims for unjust enrichment for personal rights should be developed in South Africa, learning from examples from other countries. Where highly personal rights are in issue, the question of whether the right is commercialisable should be irrelevant. The default measure should be the gain made by the infringer and the point of departure should be stripping profits,” he concluded.
In discussion he tackled issues of plagiarism and copyright; challenges in determining enrichment and intergenerational restitution for slavery; and, the impact of Christianity on the development of legal systems.
“Any legal system can be oppressive or used to oppress,” he said. “The shape of the law has transcended the parameters of its birth and achieved universal qualities. It can be unequal but the system has a clear universal framework embedded across the world. Calls to decolonise the whole of law are not necessary and also impossible. The deep structure of law throughout the world is the result of centuries of consensus making. You can change individual things but throwing out the entire is a romantic notion. It can’t be done.”
“Law is interpretive, and the reading thereof is always in a given context,” he added. “There is no access to a primordial truth, but alternate interpretations can create new understandings. Change is a dialectical process requiring scholarly argument. Then a theory has to be accepted or the law remains.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: SCPS Photography