South African Legal History

Why Study the History of SA Law

• Klein & Viljoen suggest that studying legal history explains law's present character.
• Understanding legal history aids in necessary changes.
• Legal history connects South Africa with other countries.

Hybrid Legal System

• SA law is often described as a hybrid legal system.
• SA law is a mixed legal system.
• SA law inherited from the European legal tradition of civil law (Roman Law).
• SA law comes from the common law tradition (17th and 18th century Roman-Dutch law transplanted to the Cape).
• SA Law is a mixture of Roman, Dutch, and English law, with some Canon Law.
• These laws formed part of the Western Europe ius commune.

Customary Law

• South African law includes customary/indigenous law.
• Customary law operates alongside common law in South Africa.
• The legal system is called a plural legal system because of the inclusion of customary law.

Uncodified Legal System

• South African law is also referred to as an uncodified legal system.
• Codifying means organizing and writing down laws.
• South African law is not written or found in one place.
• To ascertain South African law, you may need to refer to: Statutes, Common law, Judicial precedent, Customary law (not written).

Historical Origins

• SA law comes from Roman, Dutch (Roman-Dutch), and English law.
• Ascertaining the historical origins of SA law involves looking at these legal systems in detail.
• Emphasis is placed on Roman Law for reasons apparent later.
• Dutch influence caused Roman Law to become Roman-Dutch law.

Indigenous Law

• Prior to colonization, South Africa was not a "no man's land".
• Indigenous people occupied Southern Africa.
• Some indigenous people were nomadic, while some societies were settled.
• They applied a system of law known as Indigenous Law, Bantu Law, or Customary Law.
• This law was not written down and passed down through oral tradition from generation to generation.
• It was based on evolving traditions and customs.
• Indigenous Law is flexible and easily adapted to necessary change.
• It is referred to as “living law” or living customary law.

Roman Law

• The Roman Empire was founded in 753 BC and lasted until 476 AD.
• Rome was started by the twin brothers Romulus and Remus.
• Rome was a small agricultural community where people spoke Latin.
• Management of this small city was less complicated.
• The laws, though not written down, managed the needs of the community.

Growth of Rome

• Over the years, Rome's population grew, the economy blossomed, and conquest resulted in a Roman Empire.

5 Periods of Roman Empire History

• The history of the Roman Empire is divided into 5 periods:
• The period of the Kings (753 BC – 510 BC = approx. 243 years).
• The Roman Republic (510 BC – 27 BC = approx. 483 years).
• The Principate (27 BC – AD 248 = approx. 221 years).
• The Dominate (AD 248 – AD 476 = approx. 228 years).
• The Corpus luris Civilis (issued from AD 529 to AD 534 = approx. 6 years).

The Period of Kings

• An elected King ruled for life as high priest, supreme judge, and military ruler.
• Law was found in custom and tradition.
• The King could legislate; however, the law was not all written down.
• Law & religion were separate, but religion wielded much influence.
• A total of seven kings ruled.
• The last of the seven kings was expelled during a revolution because of his abuse of power.

The Roman Republic

• A popular assembly passed legislation.
• Two consuls (chief magistrates) were elected as Heads of State annually.
• Corruption/abuse of power/dictatorship was prevented by the consuls.
• The consuls were assisted by a number of subordinates, including praetors.
• A praetor was an elected magistrate who held legal power under the authority of the consuls.
• The praetor urbanus was a city magistrate who heard cases between urban citizens.
• a praetor peregrinus oversaw trials involving foreigners.
• The primary function of the praetors was the administration of justice and the development of the law
• The praetors introduced new rules through edicts.
• Edicts were written law, or proclamations issued by a praetor.
• The republic grew in population & trade to other parts of Italy.
• It conquered and took control of territories in northern Africa, Britain, Syria, Spain, France and parts of Asia.
• The Roman Republic applied civil law (ius civile) to resolve disputes.
• Olus civile initially applied only to Roman citizens.
• Eventually a system of law that applied to everyone was resorted to – (ius gentium).
• Multiple systems of law were in use including ius civile, ius gentium and the praetor's edicts.
• Roman law was codified in 450 BC to ensure consistency and certainty.
• The codification of Roman Law became known as the Code of the Twelve Tables.
• The law became available and applicable to all citizens after it was codified.
• A new profession of Jurists emerged.
• The Jurists studied and interpreted law in a scientific manner.
• Jurists also taught the law, assisted people with drafting pleadings, gave legal advice and published research.

The Principate

• Following a civil war between the senate and military leaders, Octavia became the first Emperor of Rome.
• He gave himself the title Ceasar Augustus, also known as Augustus.
• Augustus' aim was to bring peace in the Roman Empire, and he centralised power by appropriating law making power.
• The period when the Roman Empire was governed by an Emperor (a princeps) is referred to as the Principate.
• There were many princeps.
• By 130 AD the praetors lost their power to pass edicts.
• Emperor Hadrian commissioned jurists to codify existing edicts.
• This codification became known as edictum perpetuum.
• Jurists were granted ius respondendi, the power to give legally binding opinions.
• These opinions later formed part of Roman law.
• Legislation was enacted by the princeps.

The Dominate

• During the Dominate, the Roman Empire became a military dictatorship.
• Emperor Diocletian replaced the Princeps with an absolute monarchy referred to as the Dominate.
• It is during this time that the Roman Empire constantly experienced invasions, civil wars and economic crisis.
• The jurists lost prominence during the Dominate.
• The Emperor passed many laws in the form of lege (legislation) and constitutiones (regulations).
• The law was disorganised.
• Attempts to organise law through jurists were not successful.
• The Empire became difficult to govern.
• Emperor Diocletian divided Rome into two parts: East & West.
• Byzantine (Constantinople) became the capital city of Eastern Empire.
• Rome remained the capital city of the Western Empire.

Division of Empire

• The Eastern Empire survived and thrived after the division and lasted for another ≈1000 years.
• The Eastern Empire was captured by the Turks in AD 1453.
• The Western Empire did not survive for long after the division in the 4th century.
• In AD 410, Germanic tribes (Visigoths) invaded Rome.
• In AD 476, the city of Rome was captured and set on fire.
• The last Emperor of the Western Empire abdicated.

The Corpus luris Civilis

• Justinian became emperor of the Eastern Empire in AD 528 – AD 565.
• Justinian set himself toward rebuilding the Empire.
• He wanted to restore Roman law to its former sophistication.
• There were many disorganised statutes that had been passed by various emperors over the years.
• Justinian set up a commission to make sense of it all and reform the law where there were contradictions.
• This culminated in the popular Corpus Juris Civilis (body of civil law).
• The Corpus Juris Civilis consisted of multiple components including: The Digesta, the Institutiones, the Codex Justinianus, and the Novellae
• (a) The Digesta (the digest) was the most important part of the Corpus Juris Civilis.
• It codifies classical works of jurists on Roman law.
• (b) The Institutiones (the Institutes) was a student textbook used to explain principles in simple terms.
• (c) The Codex Justinianus (Code of Justinian) was a codification of imperial legislation.
• (d) The Novellae (the Novels) were new legislation passed during the Justinian era.

Reasons for Survival of Roman Law

• The survival of Roman law is an incident of history rather than an orchestrated plan.
• Various factors are credited with the survival of Roman Law including the Church, Laws of Merchants, The Renaissance, and the Influence of Schools.
• (a) The Church used aspects of Roman law to suit its needs.
• (b) By the 12th century, it was seen that complex politics and trade disputes in Europe were best resolved through Roman law.
• (c) The Renaissance renewed interest in art, poetry and architecture.
• Western scholars became interested in the ancient world, especially Greece & Roman law.
• In the 15th century, printing was introduced, making the dissemination of knowledge easier.
• The corpus iuris civilis proved itself to be effective in resolving sophisticated problems/challenges.
• (d) Scholars continued to study Roman law in the form of the corpus iuris civilis during the dark ages.
• During the Renaissance, the work of these scholars became useful.
• Types of schools during the Renaissance: the glossators, the ultramontani, and the commentators

The Glossators

• The glossators were a group of Italian scholars who revived the study of Roman law from the 11th to the 13th centuries.
• They studied the corpus iuris civilis and wrote commentaries explaining the words and phrases.
• These comments were written next to the original lines.
• These comments were called glossae (Latin) or simply glosses.
• The glosses were used to teach law students in various universities across Europe.
• The Glossators established the study of law as an academic discipline.
• The glossators saw the corpus iuris civilis as something applicable in all situations.
• They saw no need to look at alternatives.

The Ultramontani

• The ultramontani's goal was to incorporate Roman law into contemporary practice.
• They sought to achieve their goal by investigating other sources of law which were essential for practice.
• The sources of law the ultramontani investigated included town law, canon law and Germanic customary law.
• They debated on the corpus iuris civilis and explored its weakness.
• The ultramontani asked how they could modify Roman Law to deal with current problems.
• In this way, the ultramontani adopted a practical and relevant approach to the study of Roman law.

The Commentators

• They commented on previous glosses or followed up on the work of the glossators.
• They are also known as postglossators.
• The commentators related Roman law to other contemporary bodies of law such as feudal law, Germanic law and canon law.
• They had a more practical approach than glossators in that they engaged in interpretation, explanation and development of the law.