The Significance of Precedent
![handle is hein.journals/actj1998 and id is 188 raw text is: The significance of precedent
NEIL MACCORMICK*
University of Edinburgh
I INTRODUCTION
During the years 1991-6 I had the pleasure of discussing with
colleagues from nine other countries, together with one expert on
European Community law, the role and interpretation of precedent in
contemporary legal systems. In the early summer of 1997 the fruits of our
labours appeared in the form of Interpreting Precedents: A Comparative
Study.' Having been invited to participate also in the Rand Afrikaans
University conference 'Doing Things with Words - On Meaning in
Legal Interpretation' later in the same summer, the challenge for me was
to see how far this body of work might prove fruitful or of interest in the
very particular circumstances of the emergence of a new democratic and
constitutional form of government in South Africa, based on equality
and non-discrimination. To the extent that a country seeks to put signifi-
cant parts of its past behind it, and to move forward on a path of
intercommunal and interpersonal reconciliation, can it place any weight
upon precedent? Is precedent not the dead hand of the past laying its fell
grip on the present and the future?
II PRECEDENT IN THE NEW SOUTH AFRICA
As a matter of interpretation, it might be the true meaning of the
Constitution of 1996 that no precedent inherited from the times of
apartheid can stand. For 'this Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled' (s 2). There are reasons, as we shall see, to
suppose that this would be a misinterpretation. However, even if it were
the right view as to the past, it would surely be wrong as to the future.
For the Republic declares itself to be 'one, sovereign, democratic state
founded on ... human dignity, the achievement of equality ... [and]
supremacy of the Constitution and the rule of law' (s 1(a) and (c)). And
clearly the promise of equality in one important sense, that of equality
* Leverhulme Personal Research Professor and Regius Professor of Public Law and the Law of
Nature and Nations, University of Edinburgh. I warmly acknowledge the invaluable assistance given
me in the preparation of this paper by Fernando Atria.
1 D N MacCormick & R S Summers (eds) Interpreting Precedents:A Comparative Study (1997).
Our co-authors are: R Alexy and R Dreier (Germany); A Aarnio (Finland); M Troper and C
Grzegorczyk (France); M Taruffo and M La Torre (Italy); S Eng (Norway); L Morawski and M
Zirk-Sadowski (Poland); A Ruiz Miguel and F J Laporta (Spain); G Bergholtz and A Peczenik
(Sweden);Z Bafikowski and G Marshall (UK);JJ Barcel6 (European Community law).R S Summers
himself wrote on New York as representing the precedent system in the USA.
174](ViewImageLocal?handle=hein.journals/actj1998&div=18&collection=&method=preview&ext=.png&size=3)
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