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diversity INTRODUCTION
The fundament argument in respect of what the aims of purism, and more importantly, the judiciary, with some exceptions, did not protect individual liberties. Intrinsically, purism also led to a change in the form of legal reasoning used by the judiciary. ... Purists and Afrikaans liberals felt Purism would modernise and reform South African law, through eliminating reliance on laws which could not be traced back to Roman-Dutch doctrines. ... Others felt that purism did indeed have an ideological affinity with Afrikaner nationalism . ...
Methods By Which Purism Legitimised its aim
Purists relied on a method of legal reasoning called conceptual formalism. Formalism had been imported to Southern Africa by Dutch settlers, and formed the basis for Roman-Dutch legal reasoning. Formalism sought to solve legal issues through consulting fundamental and abstract legal concepts, thereby allowing lawyers to organise legal materials into structured and coherent systems. From here, lawyers could deduce the answers to legal questions through analysis. In this respect purists were strongly influenced by German Pandectists, who emphasised the use of scientific treatment on legal rules. ... Pragmatists viewed the purists as having been attempting to unnecessarily rid the South African legal system of its diversity, with no other reason than to fulfil the notion of having a historically ‘pure’ legal system, a history that only borrowed from Afrikaner roots. ... This idea of having a ‘pure’ legal system also tied into the Afrikaans sentiments of the time,
Juxtaposed herewith, English law emphasised utilising substantive means by which to come to a decision. ... Substantive reasoning sought to find appropriate solutions to legal reasoning by advocating that adjudicators should approach matters on a casuistic basis with due regard to the circumstances and facts. ...
Purists on the other hand:
“[b]rushed aside views of judges as being contrary to fundamental principles of Roman-Dutch law”
This attitude was a crucial connection between Purism and the inability of the judiciary to prevent encroachment on individual liberties. In essence South African legal academics were unable to recognise the overlap between ‘scientific law’ and law, as it should be in the light of the needs of society . This is not to say that the substantive form of legal reasoning guaranteed the correct legal outcome, or conversely that formalism was incapable of producing just decisions. ... This is an example of a non-racist and just decision made through the invocation of formal legal reasoning. ... C Steyn in particular, were puppets of the National Party government during the apartheid epoch with the intent of extending Afrikaner Nationalist Policies to the South African legal system . Protagonists of this view therefore expounded that the invocation of Roman Dutch Law principles through formalistic legal reasoning had underlying political motivations. On the opposite end of the continuum are the Afrikaans liberals, who assert that the purism movement was concerned with the modernisation and reformation of South African law .
One argument relied upon by those who view Purism as an instrument of the National Party, expounds that purism’s main protagonist, L.C Steyn, had been nurtured almost throughout his legal career to extend to the judiciary, nationalist political ideologies.
Approximate Word count = 2556
Approximate Pages = 10.2
(250 words per page double spaced)
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