Judges sit at the pinnacle of the legal profession and have to develop, and not just apply the law. Only persons with proven skills, knowledge and experience deserve to be appointed. There is now an outcry over the recent decisions of the JSC concerning selections and the refusal or failure to select Jeremy Gauntlett S C for appointment to the High Court in the Western Cape. As will be seen from the writings of Lord Denning, quoted below, we need judges who are also ‘architects’.
Here are some reports and opinions expressed today and recently and were all first published in Business Day.
- Franny Rabkin on 26 October 2012 – JSC faces possible action over Gauntlett’s omission.
- George Devenish today – Judiciary poorer without Gauntlett in response to JSC faces possible action over Gauntlett’s omission” (October 26).
- Paul Hoffman today – Tapes and judges: time for Zuma to do the right thing.
- Mario Oriani-Ambrosini today – Throw down the gauntlet, for the sake of SA .
I came across Borrowing from Scotland (published by Jackson, Son & Company in 1963) being the 26th lecture on the David Murray Foundation in the University of Glasgow delivered on 5 May 1961 by the Right Honourable Lord Denning of Whitchurch, Lord of Appeal in Ordinary.
Here are some extracts concerning William Murray, Lord Mansfield, that I found most interesting in the context of the stature of judges needed in this country at this time and more particularly with the qualities of Jeremy Gauntlett SC (see my earlier post – JSC’s scandalous failure to nominate leading advocate).
He attained such ascendancy over his colleagues that they hardly ever dared to differ from him and his decisions were only reversed on two occasions. He laid down principles of law for the English which they have since carried over more than half the world.
Whence did he derive these principles? Not from the crabbed and uncouth compositions of the English law books. Those often filled him with disgust and sometimes with despair. He derived them, as a good Scotsman would, from the Roman Civil Law and from the writers who built upon it in the Scottish, Dutch and French legal systems. . . . Apart from all these he grounded himself thoroughly in ancient and modern history. Law, he said, was founded upon ethics. And he always strongly recommended the philosophical works of Cicero. . . . “These”, said the Counsellor, “are my tools of trade. A lawyer without history or literature is a mechanic, a mere working mason: if he possesses some knowledge of these, he may venture to call himself an architect”. Lord Mansfield was indeed an architect, the greatest architect which the law has known”.
You may ask, however, what were the contributions which Lord Mansfield made to English Law ? They are so many that I hardly know where to begin, but perhaps the greatest is the way in which he was not content with isolated instances after the English fashion but sought to generalise the principles of the law and to state them for the guidance of the future. This is, after all, the way in which it is done in the Roman law and in the Scottish law which follows it. State the principle and apply it the facts. And Lord Mansfield excelled in doing this with the great body of commercial law. Before his time all the evidence in mercantile cases was thrown together. The cases were left generally to a jury and they produced no established principle. Lord Mansfield set to work to find out the general principles. In order to get help from the business community, he used to have a body of special jurymen who served in nearly every commercial case which he tried at Guildhall. They were so well known that they were called Lord Mansfield’s jurymen. . . .
The next great achievement of Lord Mansfield was to infuse the principles of equity and good conscience into the rigid formulae of the English law: and in doing this he again followed the good practice of Scotland. In England we used to have two systems of courts, the one system being the Courts of Common Law which applied the law in its full rigour, the other system being the Courts of Chancery which modified the harshness of the common law. But the Court of Session in Scotland has always administered law and equity together. . . .
Lord Mansfield was, however, subject to many criticisms for the extent to which he borrowed. He was censured for bringing too much of Roman law into our jurisprudence: and he was charged with overstepping the boundary between equity and law. Junius wrote this letter about him: ‘Instead of those certain positive rules by which the judgments of a court of law should invariably be determined, you have fondly introduced your own unsettled notions of equity and substantial justice’. . . . Yet time has shown that these criticisms were not merited. English law needed in his time and infusion of the principles of equity. And it needs it just as much today.
The third great achievement of Lord Mansfield was to generalise the law of contract and to insist that he who gives a promise must keep it. In short, the principle of good faith. But here he did not succeed in winning over the heard-hearted English (sic). They had long said that, in order to render a promise enforceable, there must be good consideration given for it, that is to say, something given in return for it. This was a very technical rule which has never had any place in Scots law. And Lord Mansfield did his best to bring the English law into line with Scots law. In one case he laid it down quite clearly that, if the promise was in writing, there was no need for consideration.