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38 Chapter 3
fondly as an enlightened colleague at the Cape Town Bar, clearly
believed until his retirement that, freed of apartheid deformation,
the common law did everything that the Constitution purported to do,
only in a more measured and legally appropriate way. And what a
furore arose when the UCT Law Faculty invited Cape judges (as nonpaying
participants!) to join members of the legal profession at a
workshop on the new Constitution. What could academics teach the
judiciary, when, after all, judges declared the law, while academics
only analysed what the judges said? A small minority, headed by
Judge-President Gerald Friedman wanted to go, and the compromise
was that they could attend, but only on condition they didn’t ask
questions or take part in discussion. My informant told me that the
first hand that went up at the workshop was that of Gerald Friedman!
When I had been in practice at the Cape Bar thirty years earlier,
it had been axiomatic that dead authors could be quoted, but live
ones only if they had been ‘elevated to the Bench’. The most we could
do with South African writers was to quote from authoritative
textbooks; indeed we never went to court without Gardiner and
Landsdown on Criminal Law, and Herbstein and Van Winsen on Civil
Procedure. Yet the understanding was that these treatises did no
more than systematise what the cases had decided. There was no
question of the authors engaging with the decisions and offering their
own opinions. And if we even thought of reading journal articles, we
never imagined citing them in argument. Heaven forbid. Why, then,
was the dominant legal tradition in South Africa so rigidly hierarchical
in respect of the relation between judges and academics?
When working on my PhD at Sussex University I came across some
clues. I discovered writings by Max Weber on why Roman Law was not
received in England as it was in the rest of Europe. I later summarised
what he had said as follows:
[O]ne is forced to ask why a certain intellectual style developed amongst
lawyers in England, as opposed, say, to those in continental Europe. Max
Weber has suggested that the answer lies in the success of the English
legal profession in keeping legal education under its control and out of
the hands of the Universities. Rather than regarding native genius as an
explanation of the character of legal reasoning, he sees the legal
profession as the creator of the concept of native genius, which it used
as a weapon in defence of its group interest. Thus it was in the interests
of the legal profession to assert the superiority of their indigenous
practical wisdom over the imported speculations of the University
professors, and this led to a continuing emphasis on the virtues of the
English case-law.
I added that the profession had been so successful in this respect that
not only did it continue to control the qualifications for legal practice,