In re Article 30 of the Civil Code 2025 2025 SDCR 2
In re Article 30 of the Civil Code 2025 [2025] SDCR 2
| Date | 5th October 2025 |
| Judges |
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| Held | Article 30 of the Civil Code 2025 is Constitutional |
| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION Per Curiam
(with Judge ppatpat agreeing except for [14]-[17])
Introduction
[1] In this case, we are asked to determine whether Article 30 of the Civil Code, which permits judges to recognise a new tort “under common law” where no suitable cause of action exists, violates the Constitution. The petitioner contends that Article 30 impermissibly delegates legislative power to the judiciary and so erodes the separation of powers, as well as creates a violation of the right to equality of the law.
[2] The Constitution of SimDemocracy establishes a government of divided powers, balanced among co-equal branches. This arrangement is not merely structural; it is a safeguard for liberty. Each branch has its defined role, and each must exercise its power with fidelity to the Constitution and respect for the roles of the others.
[3] The Court does not approach the first question lightly. The principle of separation of powers is central to our system of government. It secures liberty by dividing power and ensures that no branch becomes the judge of its own cause. At the same time, the judiciary, as an independent branch, has long been entrusted with interpreting the law, including the common law.
[4] The first question before us, therefore, is not merely one of text but of tradition: whether Article 30, properly understood, codifies the judiciary’s existing role or extends it into the province of legislation.
On the Jurisdiction of this Court
[5] We are of the opinion that we do have jurisdiction over this matter. Article 3 of the Judiciary Act states: "§3. The Court of Review shall have jurisdiction to examine the validity of any law, ordinance, order, or executive act of the Government or Legislature, and to declare the same void if it is inconsistent with the Constitution.". It is unquestioned that the Civil Code is a law by the Legislature, which we are therefore entitled to declare void if inconsistent with the Constitution.
[6] There has been substantial disquiet relating to the constitutionality of this provision. We are also satisfied that the provision is constitutional.
[7] The power of the judiciary to interpret the law arises from Article 9 of the Constitution, which states that "The Courts, consisting of the Supreme Court and such Inferior Courts as provided for by law, shall be the primary judicial body of SimDemocracy and shall represent the interests of the people by wielding judicial authority.".
[8] As generally understood, the power of the judiciary is to interpret the law.
[9] In the case of this provision of the Judiciary Act, we are interpreting the Constitution along with regular statute law, to discern its constitutionality. If satisfied that the law is unconstitutional, we then issue declaratory relief, by declaring the law void.
[10] This declaration is then binding on the Inferior Court, pursuant to Article 8 of the Judiciary Act (§1. Decisions by the Court of Review are binding on the Inferior Court.), which must then treat the law as void due to unconstitutionality.
[11] The role of this Court is therefore appellate and interpretive, and our decisions are thus binding vertically within the judicial structure.
On cannibalization
[12] Petitioner firstly argues that Article 30 constitutes cannibalization. As defined in In re War and Peace Act 2024 [2024] SDSC 1 it would be cannibalization for the senate to “legislate executive authority to itself” (verdict, [29]). Similarly the petitioner further elaborated that “prohibition of cannibalization is at its zenith when one branch tries to arrogate to itself an element of another branch’s plainly legitimate sphere”. Such is allegedly a logical conclusion of the separation of powers doctrine.
[13] Petitioner also points to In re Article 4 Section 5 of the Executive Act 2023 [2025] SDSC 9. There, the Supreme Court further developed the cannibalization doctrine to include “the usurpation of one branch’s authority by another branch” (verdict, [21]). They then extensively apply cannibalization tests and argue that the act in question satisfied the criteria required by the Supreme Court.
[14] The Court rejects this argument. In In re War and Peace the Senate legislated upon itself the power to deny declarations of war. Further, the Court held that the Constitution prevents the Senate from legislating to itself such matters that fall within the Executive Authority. It also discussed possible interventions into the Executive Authority that fall under the Legislature’s Authority still. Lastly it declared a law unconstitutional because the Senate has taken a power of the President that is at the core of Executive Authority and similarly another one constitutional because it was not at that core (verdict, [33]).
[15] Similarly, in In re Art. 4 EA, the Court affirmed the cannibalization doctrine and discussed a case in which the Senate legislated upon itself the power to require a confirmation vote of Executive officers. There the Court additionally held that there exists indirect cannibalization, where one branch puts up hurdles for another to execute their authority that force that other branch to act in one specific way without discretion. The Court also established a test for that (verdict, [25]).
[16] All of this is to say that in all cases where the cannibalization doctrine was developed and applied, the matter at hand was one branch of government giving itself powers another one should have. This is reflected by the definition used by the Supreme Court. Usurpation is an active seizure of something, it is a taking by force. Voluntary surrender of power without pressure, even in ancient Rome, would not be considered usurpation but rather abdication. The Court is doubtful any delegation even happened, as SimDem is a common law jurisdiction and the recognition of new torts is possible in such jurisdictions (see above). Though, even assuming in favor of the petition that Article 30 does delegate legislative power, it is no forceful taking thereof. Instead, at best, the Legislature gave Legislative Power to another body voluntarily. Again, whether actual delegation happened is not relevant to reject this argument (for that see also Judge ppatpat’s concurrence at [58]-[63]).
[17] Hence, what the Petitioner is truly asking this Court to do is develop a non-delegation doctrine, much more holistic than the cannibalization doctrine. Such doctrine does not yet exist, save for some very specific topics (see for example Reference re Voting by Proxy [2025] SDSC 5). As explained above, the Legislature however did not surrender full legislative authority but at best only the option to either recognize or not recognize torts in the way common law jurisdictions have done for centuries. Delegation may be unconstitutional if it amounts to a substantial abdication of duty, which has not happened. With Article 30, the Senate merely gave consent for the judiciary to recognize a tort in accordance with long standing common law principles. Judges may therefore not freely decide what to enact as law, unlike the Senate. This consent may however also be withdrawn by simply repealing or specifying the law.
[18] No cannibalization, nor unconstitutional delegation therefore happened.
On fair notice doctrine
[19] The petitioner argues ad nauseum that fair notice — that is, the idea that a law must be sufficiently clear so that ordinary people can understand what conduct is prohibited — makes it so that Article 30 must be voided.
[20] This argument is wrong. The Constitution says nothing of the sort. There is no fair-notice clause. There is no vagueness clause. There is no “you must warn me before the common law develops” clause. The Petitioner’s entire argument rests not on constitutional text, structure, or history, but on abstract notions borrowed from other jurisdictions and loosely stitched together with a handful of policy concerns. That is not how we interpret laws.
- [20.1] To specify, the concept of fair notice originates from US constitutional law, where it has been interpreted to mean that laws which are too vague for the average citizen to understand deprive citizens of their rights to due process.
- [20.2] This does not apply, because the US right to due process is different from the SimDem right to due process. In the US, the right is to “due process of law”. For SimDem, as per In re Penalties and Tickets Act [2025] SDSC 17, for something to be “due process” it merely needs to meet the standards for due process laid out in the Bill of Rights.
[21] The relevant provisions most often cited in this context guarantee fundamental rights and liberties, but they do not constitutionalize the doctrine of fair notice as it exists in other jurisdictions such as the United States. They certainly do not require that every law be self-executing to the point of foreclosing interpretative clarification by the courts.
[22] Indeed, under the Petitioner’s theory, every development of the common law would violate due process unless the legislature had explicitly forecast it. That would not only criminalize the entire history of tort development, it would annul the basic division of labor that our Constitution assumes between the Legislature and the Judiciary. Courts declare what the law is, and when they do, they do not violate notice merely because their interpretation is new to the defendant. The law is not a newsletter. It does not become unconstitutional merely because you did not check the docket.
[23] Accordingly, the petitioner’s invocation of the principle of fair notice is rejected by this court.
Ex post facto application of torts
[24] We shall briefly deal with the matter of the ex post facto nature of torts. Petitioner argues that the declaration of a tort is ex post facto, and an entity has no notice that they may be committing a tortious act.
[25] Torts are not “created” ex post facto. This will be elucidated upon below. However, we wish to additionally note that the Constitution provides no protection against ex post facto laws. Rather, this protection is afforded to persons who may be charged with a crime (i.e. the person may not be charged with a crime which was not an offense at the time of commission).
[26] Therefore, ex post facto protections do not extend to torts.
Article 30 and the Common Law
[27] Article 30 of the Civil Code states:
“If there is no appropriate statutory or common law tort, the plaintiff may propose for a new tort to be recognized under common law.”
[28] Petitioner argues that the phrase “under common law” in Article 30 §1 is mere surplusage or a label devoid of legal effect. That argument cannot be sustained under any defensible reading of the Civil Code or basic principles of statutory interpretation.
[29] At first glance, this provision may appear to grant judges a sweeping license to create new torts at will. But our duty is not to strike down a statute because of its breadth. Our duty is to construe it, where possible, in a manner that preserves its constitutionality and respects the roles of the Legislature and the Judiciary alike (see In re War and Peace Act 2024 [2024] SDSC 1).
[30] Statutes are to be read such that no word is treated as meaningless. No court has ever adopted the petitioner’s suggestion that terms like “under common law” can be presumed to add nothing merely because they appear in a title or classification. The phrase “torts under common law” must refer to the body of law by which such obligations are recognised and elaborated. The phrase “under common law” is therefore not descriptive, but jurisdictional: it limits judicial recognition to torts that can be justified under common law reasoning.
- [30.1] To explain further why exactly statutes are to be read such that no word is treated as meaningless, this arises out of the concept of separation of powers. In a constitutional system governed by the separation of powers, the legislature is charged with enacting law. That law is presumed to reflect careful deliberation and choice.
- [30.2] Ironically, the petitioner’s arguments to interpret the statute as cannibalization would amount to an act of cannibalization in and of itself, since treating statutory language as surplusage effectively allows the judiciary to amend or edit the law, thereby usurping legislative power.
- [30.3] In a system of law, words are everything. If they are not treated with care, then law becomes only will, not reason.
[31] We therefore hold that “under common law” in Article 30 §1 is not a decorative heading but a substantive requirement.
[32] Therefore, to appropriately interpret Article 30, the court must turn to the common law, and how it handles the recognition of new torts.
[33] Common law is often misunderstood as judge-made law. It is not that, at least, not in the crude sense. The common law is a body of principles, developed over centuries, derived from judicial decisions, and refined through application to fact-specific disputes.
[34] Common law change proceeds incrementally. It grows from case to case, each adding to the understanding of how a rule applies, or whether a new factual scenario justifies doctrinal development. The method is analogical reasoning, through comparing current disputes to past ones and adjusting the principle only where necessary.
[35] In Donoghue v Stevenson [1932] AC 562 (“Donoghue”), Lord Atkin observed that:
“The courts have been engaged upon an elaborate classification of duties as they exist in respect of property… distinctions based on the particular relations of the one side or the other… In this way it can be ascertained at any time whether the law recognises a duty… but only where the case can be referred to some particular species which has been examined and classified.”
[36] His Lordship continued:
“Yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist… At present I content myself with pointing out that in English law there must be and is some general conception of relations, giving rise to a duty of care, of which the particular cases found in the books are but instances.”
[37] This, then, is the core of the common law method: beginning with specific cases, discovering in them the unifying principles, and then applying those principles to guide future decisions. It is not a legislative act, nor a fiat.
How does the law allow for the recognition of new torts?
[38] Let us first consider the definition of a tort. The Civil Code defines torts as “Liability for harm caused to others due to negligence or intent.” (see Article 7, §1.2). Therefore, when recognizing a new tort, the Judge must define the harm, and the cause (negligence or intent).
- [38.1] It is important to note that the exclusion of strict liability torts from the definition of “tort” negates the possibility of torts such as the “TOS ban procedure violation” tort in TheReak v State of SimDemocracy [2023] Civ 2 from being recognized.
[39] How does a court determine if a “harm” results in a remedy in tort under the common law? We set out a few important principles below.
- [39.1] Firstly, a tort must only be recognized if there is a lacuna, or gap, in the law that causes a harm that the common law demands a response to. This is because the court cannot “reinvent the wheel” as to the prevention of harms, especially when the legislature has provided sufficient alternatives for addressing the harm. Doing so would be contrary to the will of the legislature relating to public policy. To this end, the Courtroom Procedures Act also provides that “The pretrial Judge shall not recognize a new tort unless the action would not reasonably fit under an existing tort.” (CPA Art. 20, §3.1).
- [39.2] It is also necessary, for the same reasons, to consider whether this gap is intentional in nature. This can be ascertained through case and statute law. There are various possible reasons for a certain harm to have no equivalent legal remedy in tort. For instance, issues of policy could give rise to sufficient cause not to recognize a tort. In Willers (Appellant) v Joyce and anor. [2016] UKSC 43, Lord Neuberger noted that “the existence of the tort [of malicious prosecution for civil cases] could have a chilling effect on the bringing, prosecuting or defending of civil proceedings” (at [166]). It may also simply be the will of the legislature that such matters not be handled through tort. For this, the Courtroom Procedures Act provides that “The pretrial Judge shall not recognize a tort which has been declared to be abolished, or recognize a similar tort which would reasonably fit under the abolished tort.” (CPA Art. 20, §3.2).
- [39.2.1] When making use of case law to determine whether there is an “intentional gap” in the law, it is very important to consider the change in societal conditions which may have caused the original reasons for this gap to become irrelevant. In Malcomson Nicholas Hugh Bertram and Another v Naresh Kumar Mehta [2001] SGHC 308, Lee Seiu Kin JC (as he then was) noted that “The common law has been in development for close to 1,000 years. In most of that time the nature of the community regulated by it was rural and agrarian.”, and that “improvements in technology have brought about three great changes in lifestyle”, which create problems that “did not and could not exist before”. Such a change, he opined, necessitated the existence of a tort of harassment. Similarly, when and especially when previous law has established reasons for the lack of existence of a tort, a court should consider whether there has been sufficient change in the position of the law from that time which necessitates departing from precedent.
- [39.2.2] Additionally, when using case law from other jurisdictions, it is important to avoid directly adapting the reasons of that case law without considering its implications in SimDem (see, for instance, Reference re Voting by Proxy [2025] SDSC 5).
- [39.2.2.1] This also doesn’t just arise from Reference re Voting by Proxy [2025] SDSC 5, but is rooted in how precedent operates within the common law tradition. As said above, the common law is predicated on analogous reasoning. The weight of any precedent does not rest on its conclusion alone, but on the similarity of facts, legal questions, and context. A case must be taken with its context and confined to its own facts unless and until it is extended by reasoning and analogy.
- [39.3] After determining that there is a gap in the law, and that the gap is not intentional, it is also necessary to classify the tort as one of negligence or an intentional tort. A negligence tort is one where an entity breaches a duty of care to another, causing some form of harm, while an intentional tort is one where harm results from the intentional act of an entity. Once this classification is made, the tort can be said to be “recognized under common law”.
On obligations and duties of care
[40] The recognition of a tort is an elucidatory act, a discoverence of a duty that has always been latent, even if not yet articulated. That discovery must be grounded in a coherent theory of obligations, for it is from obligation, and not abstract harm, that liability in tort arises.
[41] The concept of duty is not a policy tool that judges wield according to sentiment or circumstance. It is the juridical expression of the deeper moral commitment that one person should not unreasonably harm another. But not every moral wrong creates a legal wrong. In Donoghue v Stevenson [1932] AC 562, Lord Atkin distilled the modern law of negligence by articulating that one owes a duty to avoid acts or omissions which one can reasonably foresee would likely injure one’s “neighbour.” But this “neighbour principle” was not the invention of a new tort. It was the crystallization of a principle that already existed inherently.
[42] Distilled to its core, the common law of torts rests upon the recognition and refinement of specific obligations — duties of care, duties of non-interference, duties of fidelity, and in some cases, fiduciary or economic obligations that arise from special relationships. When we recognize a new tort, we are not simply validating a novel grievance. We are affirming that a legal duty exists, that it has been breached, and that such breach warrants a remedy in a manner that is coherent with existing legal categories. This legal duty, and duties, have always existed, even if the specific tort has not been recognised.
On equality before the law
[43] Petitioner argued that Article 30 violates equality before the law. The constitutional text of Article 17 §1 is: “Every person shall be equal before the law and be entitled to equal protection of the law.”
[44] The petitioner’s central concern is that by enabling judges to recognize new torts, Article 30 introduces a risk of asymmetrical legal outcomes, where one litigant may be held liable under a tort not yet recognized, while another in similar circumstances may not, depending solely on the judge seized of the matter. In this way, it is argued, the Article undermines legal certainty and creates a patchwork of liability that offends equality.
[45] Tort law, even in its most modern form, is not constructed ex nihilo — from nothing — nor is it retroactive in a manner that offends constitutional principles. What appears to some as the “creation” of a new tort is, in truth, the recognition of a pre-existing duty or obligation that, though previously unnamed, is already inherent in the relationships between persons and the norms of conduct in a given society. That is the essence of common law reasoning.
[46] Article 6 of the Civil Code 2025 defines an “obligation” as a legal relationship in which one person is bound to another to act, refrain from acting, or deliver something “in accordance with the law or an agreement.” This definition recognizes that obligations may exist even where no statute or contract explicitly sets them out — they exist in law. The key inquiry is thus not whether a tort is written in statute, but whether a legal duty arises under one of the recognized sources of obligation.
[47] Article 7 then provides an exhaustive list of those sources. Notably, §1.2 explicitly includes torts, defined as “liability for harm caused to others due to negligence or intent.” This language is not permissive. It is declaratory. The legislature has here acknowledged the continued force of tort obligations that are not necessarily codified, but arise from the evolving common law of duties. Put differently, Article 7 §1.2 presupposes that tortious obligations arise from harm due to fault, whether or not the specific tort has been pre-defined.
[48] The argument that Article 30 must be struck down because it has been misapplied by inferior courts misunderstands the standard for constitutional invalidity. The petitioner cites In re Appeal of Summary Ban — “mc_uighilin” (u/Panzzrr) [2025] SDSC 2 as precedent for the test for equal protection. However, a law does not become unconstitutional simply because it has been applied incorrectly. The constitutional question is whether the statute, when interpreted properly, can be applied lawfully. Article 30 meets that standard. It provides a coherent legal test rooted in the common law method and the Civil Code's definition of torts. Past judicial errors in applying Article 30 are no basis to void the statute itself. The proper remedy is correction of doctrine, not constitutional invalidation.
[49] The very fact that judges have historically erroneously applied the challenged law to the extent that it violates equality before the law does not inherently mean that the text is unconstitutional. It is important to differentiate between a misapplication of a law and a flaw in its text. This court thus far has been discerning whether the challenged law itself is incompatible with the Constitution — not whether it has been poorly understood or unfairly deployed.
On the past applications of Article 30
[50] As said above, that Article 30 is constitutional does not mean it has always been applied constitutionally. The record before us shows a pattern of decisions in which judges departed from the common law tradition and effectively legislated from the bench.
[51] In TheReak v State of SimDemocracy [2023] Civ 1 (“TheReak I”), a tort of “uncompensated expropriation” was declared without precedent. In TheReak v State of SimDemocracy [2023] Civ 2 (“TheReak II”), a new tort of “TOS ban procedure violation” was recognised based on the “troubles” of the plaintiff rather than legal principle. In BelugaWhaleMan9 v State of SimDemocracy [2024] Civ 2, the court implicitly accepted “civil negligence” without addressing its novelty.
- [51.1] In TheReak I, the court recognised a tort of “uncompensated expropriation,” invoking the gravity of constitutional rights without grounding its ruling in property law or administrative law precedent. The judgment failed to identify the elements of the tort, nor did it relate the plaintiff’s complaint to the doctrines of unjust enrichment, takings, or misfeasance in public office. It was, in substance, an equitable complaint dressed in the language of tort without a legal foundation. That mode of reasoning is deficient.
- [51.2] The judgment in TheReak II purported to establish a tort of “TOS ban procedure violation.” Its justification was not drawn from any source of legal doctrine, but rather from the perceived unfairness of an online ban. The judgment failed to examine whether such conduct met the threshold for tortious breach of statutory duty, economic loss, or reputational harm. It invented a new wrong without even discussing whether the defendant owed the plaintiff a duty of care — the bedrock of modern tort law. The judgment also defined damages, which is not permitted under current law.
- [51.3] Finally, in BelugaWhaleMan9, the court accepted a claim of “civil negligence” without analysis of whether negligence was already a recognised tort under the statutory or common law framework. The term was applied without a discussion of the duty, breach, causation, or loss — the fundamental components of negligence liability. To the extent that the judgment assumed its own authority to create a new label for a pre-existing tort without articulating its basis, it failed the test of principled common law development.
[52] It is not merely that these judgments misapplied the common law. They represent a fundamental departure from the judicial role as conceived by the Constitution, of our role as interpreters, not magicians. To put it simply, the judges prior have, with a wave of their wand and an incantation, “magicked” up torts without any cohesive common law reasoning, which, as stated above, is needed for any constitutional interpretation of Article 30.
[53] The doctrine of stare decisis is not an inexorable command. It is a rule of practice, one grounded in stability and predictability. However, it should not be a license to perpetuate judicial error. Courts are not bound to follow decisions that were reached without legal justification and contrary to established authority. The judgments in TheReak I, TheReak II, and BelugaWhaleMan9 fall squarely within that category.
[54] These decisions cannot be salvaged by appeals to equity, novelty, or judicial discretion. They are not just wrongly reasoned — they are constitutionally infirm. As the Constitution provides in Article 9, judicial power is derived from the authority to “represent the interests of the people by wielding judicial authority.” That authority does not include the power to create law from whole cloth.
[55] Nor can it be said that these precedents must stand simply because they have not been reversed until now. We are not bound by the mere passage of time. Our duty is to the constitution, not to the missteps of prior courts.
Verdict
[56] For the reasons set out in the opinion, it follows that the Court now must hold, and indeed does hold that Article 30 of the Civil Code is constitutional as written. It does not impermissibly delegate legislative power to the judiciary. Properly construed, it requires judges to follow the principles and methodology of the common law when deciding whether to recognise new torts.
[57] We further hold that prior cases which treated Article 30 as a license for judicial invention are overruled and hold no precedential value. Specifically, cases such as VIP Club Members v State of SimDemocracy [2020] Civ 5, TheReak v State of SimDemocracy [2023] Civ 1, TheReak II [2023] Civ 2, and BelugaWhaleMan9 v State of SimDemocracy [2024] Civ 2 recognised novel torts without adequate reference to established doctrines, without the support of precedent, and without engaging in the disciplined reasoning the common law requires. These decisions departed from the constitutional limits of judicial power, and we decline to follow them. In applying Article 30 going forward, judges must begin with the structure of tort law, apply the established methods, and ground all developments in clearly articulated legal principles. Where such reasoning cannot be sustained, the recognition of a new tort must be refused.
CONCURRING OPINION by Judge ppatpat
On cannibalization
[58] I write separately because, while I concur in the outcome reached by my colleagues, I respectfully disagree with its analysis and characterization of Article 30 as a product of legislative delegation.
[59] In my view, the source of legitimacy for Article 30 originates not in a delegation of power from the Legislature, but rather in the constitutional power of the courts to wield judicial authority. The majority frames Article 30 as an instance of the Senate voluntarily allowing the judiciary to recognize certain torts, an act which it distinguishes from unconstitutional cannibalization. But this framing misconstrues the nature of Article 30.
[60] The judiciary does not act under borrowed power when it interprets, applies, and, where constitutionally appropriate, develops the common law. The recognition of torts falls squarely within the judicial role. It is an exercise of judicial authority, not of legislative will.
[61] It would be a mistake, therefore, to treat Article 30 as a legislative grant that could be retracted at will without consequence. While the Legislature may, of course, legislate comprehensively on torts, the Constitution does not render the courts inert in the absence of statute. The judicial authority they wield is independent, not contingent on the indulgence of the Senate. All that matters is the existence of obligations and duties of care, and their related concepts.
[62] For these reasons, while I agree that Article 30 is constitutional and does not constitute cannibalization, I reach that conclusion not because there has been no improper delegation, but because there has been no delegation at all.
[63] For all the reasons above, I concur.