¹ Macmillan, Lord, Law and Other Things, p. 48Google Scholar; and generally Cardozo, The Nature of the Judicial Process.

² Those who trust in analogical reasoning to the exclusion of values overlook, first, the point that need for consistency is an important value in itself; and secondly, that perception of similarities is subjective. If one wants to find resemblances or differences one can invariably do so.

³ S.I. No. 2314 of 1961 made under the Southern Rhodesia (Constitution) Act 1961 (10 & 11 Eliz. 2, c. 2). As to its status, see Re Southern Rhodesia [1919]Google Scholar A.C. 211; de Smith, S. A., The New Commonwealth and its Constitutions, pp. 42–43Google Scholar; generally, Palley, C., The Constitutional History and Law of Southern Rhodesia 1888–1965 (1966).Google Scholar

⁴ Chap. VI of the Annex to S.I. No. 2314 of 1961.

⁵ ss. 107–110.

⁶ s. 71.

⁷ s. 69.

⁸ Proclamation No. 53 of 1965, Government Notice No. 737N of 1965.

⁹ ss. 116 and 117 (2) of the 1965 Constitution.

¹⁰ ss. 58, 59, 62, 65, 128. For the position immediately before and after U.D.I., see Leigh, L. H., “Rhodesia after U.D.I. Some Aspects of a Peaceful Rebellion” [1966]Google Scholar P.L. 148.

¹¹ 1965, Eliz. 2, c. 76; S.I. No. 1952 of 1965.

¹² Proclamation 3 of 1966; for the Regulations, see Government Notice 71 of 1966.

¹³ See Palley, C., “The Judicial Process: U.D.I. and the Southern Rhodesian Judiciary” (1967) 30 M.L.R. 263, 269–275Google Scholar, for the case-law history of this period.

¹⁴ Court of first instance: Judgment No. GD/CIV/23/66, of 9 September 1966, the full text of which is only to be found in a Government Blue Book. Shortened versions appear in 1966 (4) S.A. 462, and in 1968 (2) S.A. at pp. 285–289. Appellate Division: 1968 (2) S.A. 284, of 29 January 1968. Privy Council: Appeal No. 13 of 1968 of 23 July 1968, not yet reported.

¹⁵ Dhlamini and Others v. Carter N.O. and Another, 1968 (2) S.A. 445Google Scholar; Same v. Same (No. 2), ibid. p. 467; Same v. Same, ibid. p. 467; Madzimbamuto v. Lardner-Burke N.O. and Another N.O. (No. 2), ibid. p. 457. The trial of 32 Africans in August-September 1968 has not yet been reported.

¹⁶ The British Attorney-General declared in Parliament that the acts of the Smith regime were treasonable. See generally Hepple, B. A., O'Higgins, P., Turpin, C. C., “Rhodesian Crisis—Criminal Liabilities” [1966]Google Scholar Crim.L.R. 5 (on which see comment by O. Hood-Phillips, ibid. p. 68); contra Wharam, A., “Treason in Rhodesia” [1967]Google Scholar Camb.L.J. 189. On the Treason Act 1495, see A. M. Honoré, “Allegiance and the Usurper,” ibid. p. 213.

¹⁷ See on this a Note by J. A. Hopkins [1967] Camb.L.J. 1; McDougal, M. S. and Reisman, W. M., “Rhodesia and the U.N.; the Lawfulness of International Concern” (1968) 62 A.J.I.L. 1Google Scholar; Halderman, J. W., “Some Aspects of Sanctions in the Rhodesian Case” (1968) 17 I.C.L.Q. 672.Google Scholar

¹⁸ In the Grundnorm Case (supra, n. 14) after extensive discussion the Rhodesian courts held that they were not bound. See Lang, A. J. G., “Madzimbamuto's and Baron's Case at First Instance” (1965–) 5 Rhodesian L.J. 65, 72–81.Google Scholar

¹⁹ As MacDonald, J.A. said: “Indeed, it was only the uncertainty which existed in regard to the attitude of the High Court which cast doubt upon the status of the Government”:Google ScholarGrundnorm Case, 1968 (2) S.A. 284, 412F–G.Google Scholar

²⁰ It was on this principle that Great Britain converted her de facto recognition of the new State of Israel into de jure recognition on 27 April 1950 as soon as the disputed boundary was demarcated by the United Nations.

²¹ De facto recognition does not appear to carry entitlement to full diplomatic representation (Fenton Textile Association v. Krassin (1922) 38 T.L.R. 260Google Scholar, but this should be understood in the light of the Trade Agreement 1921 between the U.K. and the U.S.S.R.; Re Serviente (1921–22)Google Scholar Ann.Dig. Case 24); nor to archives situated abroad (U.S.S.R. v. Onou (1925)Google Scholar Ann.Dig. Case 74; U.S.S.R. v. Belaiew (1925)Google Scholar Ann.Dig. Case 123); nor to foreign debts (Emperor of Abyssinia v. Cable & Wireless Ltd. [1939]Google Scholar Ch. 182). Lauterpacht's wishful thesis that there is a duty to grant recognition when certain conditions are fulfilled was rightly rejected by Beadle, C.J. in the Grundnorm Case, 1968 (2) S.A. 284, 319F.Google ScholarCf. the non-recognition by the U.S. of Communist China and of the U.S.S.R. for many years.

²² Luther v. Sagor [1921] 1 K.B. 456Google Scholar; on appeal [1921] 3 K.B. 532; Gdynia Ameryka Linie Zeglugowe Spolka Akcyjna v. Boguslawski [1953]Google Scholar A.C. 11; Civil Air Transport Inc. v. Central Air Transport Corp. [1953]Google Scholar A.C. 70; Carl-Zeiss Stiftung v. Rayner & Keeler Ltd. and Others (No. 2) [1967] 1 A.C. 853.Google Scholar See also Wulfsohn v. U.S.S.R. (1923) 234 N.Y. 372Google Scholar; and especially Sokoloff v. National City Bank (1924) 239 N.Y. 158.Google Scholar

²³ See also Goldin J. at first instance, Blue Book at pp. 85–88; on appeal, Mac Donald J.A., 1968 (2) S.A. 284, 376G–H.

²⁴ 1968 (2) S.A. at pp. 314F–G, 359–360. On the need for analogy, see his remark at p. 307H. Jarvis A.J.A. agreed with the Chief Justice.

²⁵ General Theory of Law and State, trans. Wedberg, A. (1949), p. 119.Google Scholar

²⁶ Pure Theory of Law, trans. Knight, M. (1967), p. 212.Google Scholar

²⁷ Grundnorm Case, 1968 (2) S.A. 284, 326–327.Google Scholar

²⁸ Ibid, at pp. 415–416. The underlining is his.

²⁹ Blue Book, pp. 22, 23, 25, 83, 92.

³⁰ Fieldsend A.J.A. in the Appellate Division also suggested that Britain had no written Constitution like Rhodesia: 1968 (2) S.A. 284, 431A–D.

³¹ (1958) 2 Pak.S.C.R. 180.

³² Ibid. at pp. 184–185.

³³ [1966] Eastern Africa L.R. 514; sub nom. In the Matter of a Writ of Habeas Corpus and in the Matter of an Application by Michael Matovu, Miscellaneous Application No. 83 of 1966. The E.A.L.R. does not include the important separate judgment of Sheridan J.

³⁴ [1966] Eastern Africa L.R. 514, 535–537.

³⁵ See Beadle, C.J. summary in Dhlamini and Others v. Carter N.O. and Another N.O., 1968 (2) S.A. 445, 449F–H.Google Scholar

³⁶ Grundnorm Case, 1968 (2) S.A. 284, 320A–C, 325–326.Google Scholar

³⁷ Ibid, at p. 319G–H. In Matovu's case the Chief Justice indicated that other countries had recognised the revolutionary government and added that this was irrelevant: [1966] Eastern Africa L.R. 514, 539–540.

³⁸ 1968 (2) S.A. 284, 331E–H.

³⁹ Ibid, at p. 334A–B, quoting in aid the well-known remarks of Viscount Sankey in British Coal Corp. v. R. [1935] A.C. 500, 520Google Scholar, and of Stratford, A.C.J. in Ndlwana v. Hofmeyr [1937] A.D. 229, 237.Google Scholar The convention is as follows: “It has become an established convention for Parliament at Westminster not to legislate for Southern Rhodesia in matters within the legislative competence of the Legislative Assembly of Southern Rhodesia except with the agreement of the Southern Rhodesia Government”: Cmd. 1399.

⁴⁰ 1968 (2) S.A. 284, 419D–F.

⁴¹ Ibid. pp. 416–417.

⁴² Ibid. pp. 423D–E, 424A–B, 429G, 430A–B. The South African cases alluded to are Harris v. Minister of the Interior, 1952 (2) S.A. 428Google Scholar; Minister of the Interior v. Harris, 1952 (4) S.A. 769Google Scholar; Collins v. Minister of the Interior, 1957 (1) S.A. 552.Google Scholar

⁴³ 1968 (2) S.A. at pp. 363–364.

⁴⁴ Ibid, at pp. 365D–F, 367D–H, 369F.

⁴⁵ The Concept of Law, pp. 80–81. Quènet J.P.'s reasoning is simply the gunman situation writ large.

⁴⁶ Hart, op. cit., p. 83. For reasons in order of importance why people obey duties, see Bryce, Lord, Studies in History and Jurisprudence, II, pp. 6Google Scholaret seq.

⁴⁷ See the author's “The Unenforceable Duty” (1959) 33 Tulane L.R. 473Google Scholar; Jurisprudence (2nd ed.), pp. 204 et seq. See also Macdonald, J.A. recognition of “obligation—imperfect because it cannot be enforced”: 1968 (2) S.A. 284, 378D–E.Google Scholar

⁴⁸ 1968 (2) S.A. 284, 377D–F, 384H, 385D–F, 406D, 415E–F. 415–416.

⁴⁹ See on this point the author's paper, “The Value of a Value-study of Law” (1965) 28 M.L.R. 397, 412–413.Google Scholar

⁵⁰ Blue Book, p. 24. For remarks by the same judge on judicial conscience, see p. 36. Mr. Kentridge S.C. in his address to the Privy Council, alluding no doubt to MacDonald J.A.'s judgment, described it as capitulation in the face of force and, as an example of judicial timidity, to be deplored.

⁵¹ 1968 (2) S.A. 284, 413A–D.

⁵² For Fieldsend A.J.A.'s rebuke, see ibid. p. 430B–C.

⁵³ Beadle C.J., ibid. at pp. 339C–D, 344E–F; Fieldsend A.J.A. at pp. 431–432.

⁵⁴ [1907] A.C. 326.

⁵⁵ Joyce v. D.P.P. [1946]Google Scholar A.C. 347.

⁵⁶ The International Wheat Agreement and the Outer Space Treaty were signed on behalf of Rhodesia since U.D.I. The Secretary of State has recognised new consular representatives of foreign Powers in Salisbury.

⁵⁷ [1916] A.D. 194, 203; see also Sachs v. Donges N.O., 1950 (2) S.A. 265, 288, 309.Google Scholar

⁵⁸ See on this Stratford, J.A. in Byers v. Chinn [1928] A.D. 322, 329Google Scholar; Att.-Gen. v. Mustafa Ibrahim (1964) 3 J.S.C. 1, 65–66, 109–110Google Scholar (Cyprus); Ekelaar, J. M., “Splitting the Grundnorm” (1967) 30 M.L.R. 156, 174Google Scholar, n. 19.

⁵⁹ Blue Book, pp. 38, 47, 67, 102, 104.

⁶⁰ A. J. G. Lang (1965–) 5 Rhodesian L.J. 65, 98–108.

⁶¹ 1968 (2) S.A. 284, 330H, 351D.

⁶² Grotius, De Jure Belli ac Pacis, 1.4.15; De Vitoria, De Potestate Civili, 23; Suarez, De Legibus, 3.10.9; Lessius, De Justitia et Jure, 2.29.9.73; Bynkershoek, Quaestiones Juris Publici, 2.25.3.

⁶³ 1968 (2) S.A. 284, 352A, 360A. See also Overland Case (1943)Google Scholar 12 Ann.Dig. Case 156; Hague Regulations, Art. 43; Oppenheim, International Law (7th ed.), pp. 436–445.

⁶⁴ 1968 (2) S.A. 284, 421B–C, H, 422A.

⁶⁵ Ibid. pp. 427A–B, H, 428C.

⁶⁶ Ibid. pp. 434–435, 439G–H, 440C, 441A–D.

⁶⁷ Ibid. pp. 353–356.

⁶⁸ This raises two questions: (1) are Mr. Baron and Mr. Madzimbamuto entitled to sue for false imprisonment during the time they were held under reg. 47 (3)? But see s. 143 of the 1965 Constitution providing for an Act of indemnity. (2) What is the ratio deddendi of the Grundnorm Case? As to the latter, the Chief Justice himself stated expressly in Madzimbamuto v. Lardner-Burke N.O. and Another N.O. (No. 2), 1968 (2) S.A. 457HGoogle Scholar, that the pronouncements on the status of the regime were part of the ratio. If so, ratio is not limited to findings that support the ultimate order.

⁶⁹ In Matovu's Case [1966]Google Scholar Eastern Africa L.R. 514, the judges continued to discharge their duties in response to a personal appeal by the usurping Prime Minister, which distinguishes this situation from the Rhodesian. The appeal is quoted at p. 522.

⁷⁰ Reliance on necessity has also been criticised in detail by Welsh, R. S., “The Constitutional Case in Southern Rhodesia” (1967) 83 L.Q.R. 64, 73Google Scholar, and by A. J. G. Lang (1965–) 5 Rhodesian L.J. 65, 82–98. See generally Williams, G. L., “The Defence of Necessity” (1953) 6 C.L.P. 216Google Scholar, especially at p. 224; Shepherd, H., “Necessity an d the Rule of Law” (1968) 118 New L.J. 804.Google Scholar

⁷¹ Thus, in 1765 Pratt C.J. rejected the argument of state necessity in the famous words, “the common law does not understand that kind of reasoning”: Entick v. Carrington (1765) 19 State Tr. 1029.

⁷² Lord, Parker C.J., “Recent Developments in the Supervisory Powers of the Courts over Inferior Tribunals” (1959)Google ScholarLionel Cohen Lectures, V, p. 25. Cf. Elias v. Pasmore [1934] 2 K.B. 164Google Scholar; Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 W.L.R. 201Google Scholar (under appeal).

⁷³ Mr. Le Quesne, Q.C., as amicus curiae before the Privy Council, referred to “the devil's authority, to wit necessity.” Cf. Milton, Paradise Lost, iv, 393:

“So spake the fiend, and with necessity The tyrant's plea, excused his devilish deeds.”

It is to be observed that this arch-declarant of U.D.I. has still no t been accorded de jure recognition, although his effective control has lasted far longer.

⁷⁴ Dhlamini and Others v. Carter N.O. and Another, 1968 (2) S.A. 445, 450C–H, 452A–B.Google Scholar

⁷⁵ Madzimbamuto v. Lardner-Burke N.O. and Another N.O. (No. 2), 1968 (2) S.A. 457, 462D–G, 464AGoogle Scholar, referring to Chikwakwata v. Att.-Gen., 1965 (4) S.A. 57.Google Scholar See also Dhlamini and Others v. Carter N.O. and Another N.O. (No. 2), 1968 (2) S.A. 464.Google Scholar The majority decision in fact turned on the technical point that the Grundnorm Case had not been decided under the Declaration of Rights chapter in the 1961 Constitution and that the applicant had therefore not been “aggrieved by any determination of the High Court” within s. 71 (5), which would have given a statutory right of appeal. The Privy Council granted leave, observing that this was too narrow a view. The Appellate Division had ruled that the law under which Mr. Madzimbamuto was being detained was valid, which was a sufficient “determination” for this purpose.

⁷⁶ See the forceful remarks of Lewis, J. in the Grundnorm Case at first instance: Blue Book, pp. 36–37.Google Scholar

⁷⁷ Dhlamini and Others v. Carter N.O. and Another N.O. (No. 2), 1968 (2) S.A. 464, 466A–C.Google Scholar

⁷⁸ Dhlamini and Others v. Carter N.O. and Another N.O. (No. 2), 1968 (2) S.A. 467, 469G.Google Scholar

⁷⁹ The Times, 10 August 1968.Google Scholar

⁸⁰ The Times, 14 September 1968.Google Scholar

⁸¹ General Theory of Law and Slate, p. 119.

⁸² Pure Theory of Law, p. 112.

⁸³ Per Beadle C.J., 1968 (2) S.A. 284, 351E–F, and per Jarvis A.J.A. at p. 421A.

⁸⁴ The Times, 10 August 1968.Google Scholar

⁸⁵ The Times, 14 September 1968.Google Scholar

⁸⁶ Madzimbamuto v. Lardner-Burke N.O. and Another N.O. (No. 2), 1968 (2) S.A. 457, 463E–G.Google Scholar

⁸⁷ Dworkin, R., “Lord Devlin and the Enforcement of Morals” (1965–66) 75 Yale L.J. 986, 1001.Google Scholar

⁸⁸ Grundnorm Case, 1968 (2) S.A. 284, 326B, 327C, 328C, 329E.Google Scholar On his indifference to values, cf. Slesser, H., The Art of Judgment, p. 32Google Scholar; Radcliffe, Lord, The Law and its Compass, passimGoogle Scholar; and the opening remarks of the present paper.

⁸⁹ Cowen, D. V., The Foundations of Freedom (1961)Google Scholar, Part I; C. Palley (1967) 30 M.L.R. 263, 282.

⁹⁰ Grundnorm Case, 1968 (2) S.A. 284, 326C.Google Scholar

⁹¹ Emmet, D., Rules, Roles and Relations (1966)Google Scholar; Mitchell, B. G., Law, Morality, and Religion in a Secular Society (1967).Google Scholar

⁹² e.g., the South African episode of Sandra Laing, The Times, 2 October 1967.Google Scholar This 11-year-old child was officially classed as “white” at birth. She was re-classified as “coloured” and withdrawn from a “white” school. She was then re-classified as “white”; but, notwithstanding a Government order the parents of the other children refused to accept her again. In Rhodesia, after U.D.I, the Smith regime set up its own Whaley Commission to prepare a new Constitution. Their report was rejected as being too liberal. The same objection was raised even more powerfully to Mr. Smith's revised constitutional proposals.

⁹³ 1961 Constitution, Sched. I, repeated substantially in the 1965 Constitution, Sched. I.

⁹⁴ Cf. the remarks of Lewis, J. in Central African Examiner v. Howman, 1966 (2) S.A. 1, 14Google Scholar; and in the Grundnorm Case at first instance, Blue Book, p. 24; Beadle C.J., 1968 (2) S.A. 284, 329F.

⁹⁵ Cf. the Appeal Court Quorum Act 1955 in South Africa. See also the study by the International Commission of Jurists, “Erosion of the Rule of Law in South Africa” (1968).Google Scholar

⁹⁶ Op. cit., passim.

⁹⁷ This only reinforces Mrs. Palley's concluding remarks, op. cit. at p. 287. It is similarly arguable that the South African judges might still have been able to strike down the final piece of legislation on the “votes” issue had they abandoned a strict positivist line and taken account of the original purpose which was enshrined in the South African Grundnorm: on which see, McWlunney, E., “The Union Parliament, the Supreme Court and the ‘Entrenched Clauses’ of the South Africa Act” (1952) 30 Can.B.R. 692Google Scholar; Judicial Review in the English-speaking World (2nd ed.), Chap. 6.

⁹⁸ Even Quènet J.P. and MacDonald J.A. made this clear: Grundnorm Case, 1968 (2) S.A. 284, 365F, 391E.Google Scholar Mrs. Palley says that at an early stage the Chief Justice “showed the door” to Mr. Lardner-Burke, who proposed that the judiciary should swear allegiance to the 1965 Constitution, and that the other judges agreed to resign if he were dismissed: op. cit., p. 269. None of the factual statements made by her in this article has been contradicted, apart from a doubt as to whether MacDonald J.A. attended the opening of Parliament. See correspondence in (1968) 31 M.L.R. 118–119.

⁹⁹ Cf. Matovu's Case [1966]Google Scholar Eastern Africa L.R. 514, 526, where the court, rejecting the Attorney-General's contention, held itself competent to inquire into the validity of the Constitution.

¹ Cf. Palley, op. cit., p. 269, n. 40.