Book Review: Private law and human rights: Bringing rights home in Scotland and South Africa

• Jurisdiction: South Africa
• Author: Alistair Price
• Date: 16 August 2019
• Citation: (2014) 25 Stell LR 230
• Published date: 16 August 2019
• Pages: 230-233

Private Law and Human Rights: Bringing Rights Home in Scotland

and South Africa by E Reid & D Visser (eds). Edinburgh University

Press Ltd 2013. xliv & 532 pp. ISBN 9780748684175. Price £120.00

(hard cover)

The human-rights revolution in private law is hardly unique to South Africa.

For example, courts in India , Canada, Spain , Ireland, Italy, Greece, France,

Denmark, Engla nd and Wales, Germany, Israel, and Scotland have all, to a

greater or lesser degre e, started to a ddress the relationship bet ween private-

law doctrines and hu man or constitutiona l rights instr uments, both domest ic

and internat ional (see for example D Oliver & J Fedtke (eds) Human Rights

and the Private Sphere (2007); D Friedm ann & D Barak-Erez (eds) Human

Rights in Private Law (2003)). Of course, the South African legal, politica l,

and social context stands apa rt in certain respe cts. Sections 8(2), (3) and 39(2)

of the Constitution of the Republic of South Afr ica, 1996 (“the Constit ution”)

nd few exact equivalents in foreign and i nternational law. Socio-econom ic

rights are justiciable here, and may i mpose duties on natur al and juristic

persons (see S Liebenberg Socio-Econ omic Rights: Adjudication under a

Transformative Constitution (2010) ch 7). Many spheres of South African

social and economic life pri marily regulate d by legal doctrines tr aditionally

classied as “private” remain sca rred by our history of colonialism and

apartheid. Systems of ind igenous customary law and Musli m personal law

apply in certain ci rcumstances. The grossly uneven dist ribution of wealth and

opportun ity in South Africa is plain for all to see. Nonet heless, despite all this,

we are not an island wholly unto ourselves, nor should we regard our selves

as such. We share with many other nations a wide va riety of challenges in

the elds of social interact ion governed by the law of pe rsons and the family,

property, obligations, succession, employment, c redit and securit y, juristic

personality, as well as access to housi ng and clean water. Moreover, the

judicial and legislative project of evaluating private-law doct rines again st

human-rights standards is sh ared inter nationally. Consequently, comparing

our experience s with those abroad is likely to be protable, provided we pay

due regard to local conditions. To the extent that we seek to solve shared

problems using similar tools, com parisons will help us to u nderstand bett er

both the problems and the tools that a re, or could be, used to solve them.

Private Law and Human Right s, edited by Elspeth Reid of Edinburgh Law

School and Daniel Visser of the University of Cape Town, and published by

Edinburgh Universit y Press, contrasts Sout h African law again st Scottish

law. It is the latest contribution to a rich and growing bo dy of comparative

scholarship that examine s the private law of so-called “mi xed” jurisdictions

(see for example JE du Plessis “Comparative Law and the Study of Mixed

Legal Systems” in M Reimann & R Zimmermann (eds) Oxford Handbook of

Comparative Law (2006); VV Palmer Mixed Juri sdictions Worldwide: The

Third Legal Family 2 ed (2012)). Private law doctrines in Scotland a nd South

Africa, in pa rticular, have been product ively compared in the past, as these

are two prominent jur isdictions that have successfully integrate d Continental

civil law w ith English common law (see for example R Zimmerma nn, D

230 STELL LR 2014 1

(2014) 25 Stell LR 230

© Juta and Company (Pty) Ltd