By Anton Katz SC
A first thing every student is taught at law school is the necessity of reading law reports.
So, what are law reports? Law reports are books or collections of judgments by the courts. The reported judgments set out how judges have ruled in previous cases. Whenever a judge rules on a particular issue, it creates a precedent, and future courts faced with the same issue are bound to follow the earlier ruling. And the way lawyers and their clients know what the law states is by reading the law reports. By the way, the ‘fancy’ books lined up on lawyers’ shelves to impress are mostly law reports.
But in the growing digital world, it may be more impressive for a lawyer to have no paper or books at all in his/her office. Almost all judgments are available online and there is no longer any real need for fancy-looking books in smart wooden shelves.
So, what has that got to do with opera, you may wonder? Reading any judgment written by a decent judge sets out a saga. A saga in which humans have found themselves in conflict and need a court to resolve their dispute. They were not able to arrive at a peaceful resolution without the court deciding how to resolve the conflict.
The word opera is an Italian word meaning ‘work’. Traditional opera consisted of words (libretto, which means small book in Italian) and singing in different modes, mainly recitative (singing which resembles ordinary speech) and arias (a formal song). What is the link between the law reports and opera?
Operas tell stories by way of music, acting and theatre in general. There are tragedies, comedies and serious historical dramas. Politics, love and jealousy, war and peace, the joys of life and suicide, human rights, freedom, terrorism and authoritarian government all play out on the operatic stage.
Every opera — like every judgment — contains a story about humans. Our joys, our frailties, our hubris, our evil thoughts and deeds, and love lives fulfilled or otherwise, are the stuff of opera.
And the law reports? As one reads judgment after judgment, all human life is exposed. Criminal law involving murders, rapes, robberies and all manner of awful human conduct are analysed and dissected. In family law we read about parents fighting over children; where the kids should live, or which school they should attend and how often each parent sees them, and how the judge viewed the matters. Divorcing couples in ugly disputes about business and financial affairs — love gone awry. Families scrapping over inheritances are depressingly revealed. Labour cases show how former employers and employees end up — sometimes after many years of a close relationship — trying to destroy each other. Shipping, tax, commercial, intellectual property and all other aspects of flawed human conduct are chronicled in the law reports.
And then there is public law. The constitutional and political issues of the day are given judicial life in the law reports. A fleeting glimpse at South African judgments in the 1960s and 1970s demonstrates how racist and authoritarian the laws were, and how the South African government ruthlessly tried to implement them. In the 1990s and early 2000s there is a sense of hope and respect for human rights that bubbles to the surface in the judgments that we read. Issues including the cruelty of, and the abolition of the death penalty; the housing, education and medical challenges, such as the HIV crisis start coming to the fore. But then as the 2000s develop into the 2010s, perhaps what may better be classed as the soap opera concerning a former President starts.
In the last few years there is a notable sense of frustration that creeps into the judgments on a range of levels. The judges seem to say, “we want to deliver justice, but we are hamstrung by the wide range of rights litigants enjoy.”
The sordid tactics of so many politicians are exposed, and the judges are wary of standing in the way of government’s Covid-19 strategies.
Researching for a matter I am involved in, I find a useful precedent from a case decided in 1916 in the United Kingdom. As I read the judge’s words from 1916, I can’t help but read around the topic the judge was dealing with. It becomes clear to me that the judge was mindful that the world was at war and that however he ruled then could have lasting precedential value. He (and in those days all the judges and lawyers were men) observed that even in times of crisis, such as war time, the regular process of the law must continue. Rights must continue to be protected, even if the context may be somewhat different.
The many and varied human sagas so magnificently chronicled in operas as theatre are similarly set out in the law reports. Although the law reports are not geared to entertain and enthrall, but rather are meant as merely sets of judgments to be followed by future courts as precedent, they certainly can fairly be described as operatic.
Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.
• Published in the PDF edition of the June 2022 issue – Click here to read it.
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