Module 10 Flashcards
What are the 5 phases of South African law?
- Indigenous Law
- Dutch Colonisation - Extensive commercial transactions took place between the Netherlands and the East
- English Colonisation - The British allowed for Roman-Dutch law to remain, with influences of the British legal system
- Apartheid Laws - Origins in the colonial past but began when the National Party came into power
- Transformative Constitutional Democracy
What is ancient law?
Ancient law is when Rome was established, governed by the customs and traditions of the King, there were plebians and patricians.
What happened during the roman republic?
Roman Republic - was a period of democracy, expansion, and growth in the Roman Empire, slavery was an integral part of the growth. The patricians and plebians wanted access to the legal system. First codification of the law, through the twelve tables. The twelve tables classified law, through branches and sources (Lex Duodecim Tabularum).
How do the 12 Tables compare to modern laws?
The Twelve Tables compares to Modern laws because it acknowledged the right of individuals, explained courts and trial procedures for crimes committed, and outlined the general laws of society.
What are the twelve tables of law?
- Proceeding before trial
- Trail procedure
- Judgment on debts
- patriarchal powers
- Rules of succession and protection of property.
- Sale, transfer and ownership of property.
- land rights
- laws of injury (Criminal offences and delicts stipulated)
- equality before the law, right to appeal, no punishment without a trial, anti-corruption provisions
- Rules regarding funeral
- Prohibition of marriages between patricians and plebeians
- General rules about punishment and slaves
What happened during the principate roman empire?
Roman Empire (principate)- the study of the law began and where the Emporer would ask the jurist for opinion and advice
What happens during the dominate roman empire?
Roman Empire (dominate)- The regression of Roman law, due to the division of Rome. The first piece of legislation is the Citation Act.
What happens during the justinian period?
Justinian period - Attempted to codify the overwhelming mass of Romans. This codification process resulted in the publication of four books which were known together as the Corpus Iuris Civilis (the Body of Civil Roman law).
What happens during the reception in Europe glassotors?
Reception of law in Europe (glossator)- The Glossator is a group of scholars in Bologna, they provide short commentaries or explanatory notes in the margins. The Glossators failed to consider the need for current legal solutions. Canon law played an essential role in sustaining Roman Law, religious law was known as Corpus Iuris Canonici.
What happens during the reception in Europe post-glassotors?
Reception of law in Europe (post glossators) - The post-glossators wrote commentaries on the Corpus Iuris Civilis and the glossator’s work, interpreting the work to apply to modern society. They were responsible for the incorporation of Roman law into the practical administration of justice (common law) and the Transnational application of Roman law was studied (class of professional)
What happens during reception into Holland?
Reception into Holland - There was a centralisation of the administration, courts applied written laws which consisted of Roman Law and Canon law as there was greater certainty. Roman Law was accepted into civil law. Where the customary laws were deficient.
What happens during the reception in netherlands?
Reception into the Netherlands - An emphasis on human beings’ life and earthly potentialities, which revived the study of Roman Law (Corpus Iuris Civilis) and the isolated principles of law and their critical approach led to the development of a logical framework for European legal systems.
What happens during the reception of the roman-dutch law in the cape?
Roman-Dutch Law in the Cape - The Cape changed its policy, which encouraged the settling and during this period, there was no record of the reasons why the courts made certain decisions. Magistrates and persons were appointed to deal with the administration of justice
What happens during the reception of the english law in the cape?
English Law in the Cape - English law (common law legal tradition) and Roman-Dutch law (civil law or ius commune legal tradition). Roman-Dutch law was to remain, however torture to obtain criminal confessions was prohibited, and old laws were abolished.
What happens during the reception of the roman-dutch law beyond cape?
Roman-Dutch Law beyond the Cape - There was a development of the Supreme Court of Appeal to harmonise common law. South African courts played an important role in adapting and combining Roman-Dutch Law and English Law.
what happened during aparthied?
Apartheid - The National Party came into power, they enacted laws based on their belief in racial purity. In 1990, the negotiations began to address the injustices and inequalities of the past, and the aim was for reconciliation through the introduction of the Interim Constitution in 1993
what are the four books of the The Corpus Iuris Civilis?
The Corpus Iuris Civilis was broken into four books:
- Institutiones - Textbook for law students
- Digesta - Jurists writing and opinions
- Codex - imperial legislation
- Novellae - New imperial legislation of Justinian
what was the result of the English law king making laws based on examples?
The English law had the King’s court make laws based on concrete examples. This resulted in the:
- Development of procedural rules,
- Strict application of the doctrine of stare decisis
- Judicial precedent became a source of law
How did the english law influence our legal system?
- Legislation (criminal law, procedural law; evidence and the jury system). A high court called the Supreme court was established
- Having lawyers (judge to interpret the law, advocates to represent and apply the law, and attorneys to read and use the law) instead of Jurists/ the assembly
- Precedent (court decisions) applied English doctrine particularly in contract and delict
- Replacements of landdrosten with heemraden with Mag Courts
What is a transformative constitution?
A transformative constitution is a long-term project that looks at transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction, through nonviolent political processes grounded in law. It is a highly egalitarian, caring, multicultural community, governed through participatory, democratic processes
What is adjudicative subsidiarity?
Adjudicative Subsidiarity looks if there is constitutional right infringement, we first have to look at legislation that gives effect to these rights. If there is no legislation or an Act of Parliament has been declared invalid, then we rely on common law.
What does section 1(3) of the Law of Evidence Act state?
the common law will be applied unless one can prove that customary law should be used to resolve the dispute. This is seen in Section 1(3) of the Law of Evidence Act but depends on the person’s area and if it is practised in the community.
what does section 39(2) of the Constitution state?
If unconstitutional, the common law or customary law should be developed to be constitutionally compliant, as stated in section 39(2) of the Constitution. Legislation is tested using section 172 of the Constitution
What does visser article highlight?
Visser’s article highlights a single system of law, the main idea is that constitutional and private law work together. Making a constitutionalised single body of private law.
What do we have adjudicative subsidairty?
We don’t directly go to the constitution cause it dosent provide remedies or what happens if you break them
What is the value-based analysis?
Value-based analysis is in line with section 39 of the Constitution and the interpretation of the Bill of Rights. The approach interprets the law through the values of the Constitution
This is an indirect rule under the horizontal simplister
what is the right based analysis?
Right-based analysis in line with Section 8 deals with the application of the Constitution and that the Bill of Rights applies to all. Section 36 deals with when this approach is limited If it’s a law in place it should be looked at in line with the right based approach
This is direct rule under horizontal simplicter
What is the first generational rights?
First-generation rights provide a shield for individuals to protect themselves against the state authority. Guarantees freedom from unlawful interference by the state. They operate on a vertical level. These rights are political and civil rights, including the right to life, freedom of expression, of association and religious freedom. These rights are known as blue rights and origins are in the struggle against despotic regimes.
What are second generational rights?
Second-generation rights are socio-economic rights. They do not require the state to refrain from doing something specific, but to take positive action. These rights are mostly controlled by the state such as the right to housing, education, medical services. Claims to theses rights are unenforceable in a state where insufficient means exist to give them effect
What are third generational rights?
Third-generation rights pertain to groups and the environment. Such as the right to a healthy living environment, right to development and self-determination. These are green right
What is legal plurism?
Legal plurism is were two more legal systems coexist in the same field
Where does the Substantive of the adjudicative subsidiarity principle come from?
The Substantive of the adjudicative subsidiarity principle comes from the South African Defence Union v Minister of Defence which determined adjudication of a potential fundamental right infringement must find its cause of action in legislation
that has been expressly enacted in the protection of this fundamental right.
What does CJ Visser article argue?
In this article CJ Visser article argues that an integrated and constitutional approach to the law of personality is required as multiple sources of law are applicable to the adjudication of personality rights these sources must give effect to constitutional
imperatives.
