FSAL History Flashcards
what kind of legal system does SA have
a hybrid legal system
what two main traditions is SA Legal system based on
- ius commune
2. English law
what is an uncodified legal system
laws that make up the legal system aren’t contained in a single collection of laws, and are found in numerous sources.
Period of the Kings
753BC – 501BC
- elected king ruled Rome
- specific formula to enforce specific rights, to obtain a remedy
- laws solution to a legal problem, such as a punishment
Roman Republic
510BC – 72BC
- Two annually elected consuls, or heads of state, would rule Rome
- Magistrates ( Praetors) were responsible for the administration of the republic
- praetor would regulate legal proceedings and decide on the rules to resolve the dispute, as well as developing the edicts that had to be obeyed
- Roman law was first codified in the time of the Roman Republic.
what is the 12 tables
450 BC
- first codified roman law
- The Twelve Tables marks the start of the development of the law by jurists who interpreted the law
what is a jurist
person with a thorough understanding of the law
The Principate
27BC – AD 284
- emperor, was the highest political position of the Roman Empire
- classical roman law
- main contributors were the jurists
- right to give legally binding opinions
- foundations of roman law
- jurists at the end had to use law through interpretation
The Dominate
AD 284 – AD 476
1. military dictatorship
Justinian’s Digest: The Corpus Iuris Civilis (The body of Civil law)
AD 528 – AD 534
- Justinian, a Roman emperor, attempted to restore the Roman Empire by codifying imperial legislation.
- Corpus Iuris Civilis, which means the body of the civil law.
what was the CIC made up of
Digesta
Codex
Insitutes
Novellae
what is digesta
a codification of classical Roman law principles contained in the work of the jurists.
institutes
a student textbook based on the work of a former jurist, which is a complete written
explanation of Roman law
Codex
codification of imperial legislation
Novellae
collection of legislation enacted after the publication of the Codex
Leges Barbaroum
he legal system was based on unwritten customs, and this replaced Roman law in Europe. Germanic tribes applied law according to personality principle, or tribe membership (practice in law depended on people involved in a transaction/dispute).
Feudal Law
Vassals, or lower class people, promised to fight for a lord. In return, the lord granted a piece of land to the vassals and promised to protect them. Feudal law was codified and applied the territory principle (replacing the personality principle). This led to a diversification of laws. This caused problems with things like trade.
Canon Law
church was a world power in the middle ages, and had its own courts, with supranational jurisdiction. It had jurisdiction in matters relating to faith, sin, marriage, wills, certain crimes (such as sexual misbehaviour or perjury), etc.
Roman law but changed the principles where necessary so that it would conform with the principles in the Bible.
Lex Mercatoria (the law of merchants)
law of merchants, a standardised European law, contributed to the development of the Western European ius commune
developed from their own customs
faster process than that of the courtsallow uniformity for those trading cross-culturally
glossators
glossators annotated the codification of Justinian
comments called glossae
Glassae Ordinaria
taught Roman law to students, who took it back to their home countries, spreading the influence of Roman law
thought CIC was absolute and ignored roman customary law
Ultramontani
foreign students of law who had a critical attitude towards the Corpus Iuris Civilis. used it to solve problems
Commentators
successors to the glossators, as they extensively interpreted the Corpus Iuris Civilis.
integrated: germanic customary law, canon law, feudal law, lex mercatoria, glossae ordinaria
developed into the Western European ius commune
Hugo De Groot
Inleidinge tot de Hollandsche Regsgeleerdheid
book about how the Corpus Iuris Civilis was applicable to Holland.
first authoritative work on Roman Dutch law.
Simon van Leeuwen
Het Roomsch-Hallansche Recht
He was the first to use the term Roman Dutch law.
Simon van Groenewegen van der Made
ractus de Legibus Abrogatis et Inusitatis in Hallandia Vicinisque Regioninbus
He updated and corrected De Groot’s Introduction to Dutch Jurisprudence.
Johannes Voet
Commentarius ad Pandectas
commentary on Roman law and the existing legal system in Holland at the time. It’s an important source for understanding Roman Dutch law.
Johannes van der Linden
Rechtgeleerd, Practicaal en KoopmanshandboekHe wrote a book before the codification of the legal system of the Netherlands, after which Roman Dutch law was replaced by the French Code Civil, thus making his the last standard work on Roman Dutch law.
when was dutch law applied in SA and when was english law
The first time, in 1795-1803, roman Dutch law was applied and the Cape’s legal system remained unchanged. In 1806, the British invaded the Cape again and English procedural law was introduced.
The Charter of Justice of 1827
introduced a more English system, by introducing a supreme court. South Africa’s criminal law, commercial law and law of evidence was almost completely taken from English law.
list different consitutions of SA
Union 1909 - 1s t constitution / Republic 1961 – 2n d constitution / Tricameral Parliament 1983 / 1996 New SA and current constitution
