THE 4 DIFFERENT POLITICAL STRUCTURES IN ROME

AND THE 4 PHASES IN ROMAN LEGAL DEVELOPMENT

POLITICAL:

MONARCHY (753 BC – 509 BC)

 autocratic king
 rigid & formalistic

REPUBLIC (509 BC – 27 BC)

 2 consuls govern

PRINCIPATE (27 BC – AD 284)

 emperor governs

DOMINATE (AD 284 – AD 476)

 emperor autocratic ruler

LEGAL:

EARLY ROMAN LAW (753 BC – 250 BC)

 ius civile – applicable to Roman citizens only
 rigid & formalistic

PRECLASSICAL (250 BC – 27 BC)

 ius honorarium – applied alongside ius civile
 fair, flexible, lack of formalism

CLASSICAL (27 BC – AD 284)

 high point in legal development
 superior to any legal system – still felt today

POSTCLASSICAL (AD 284 – AD 565)

 decline in Roman legal science
 influence of vulgar law – RL influenced by Germanic law

MONARCHY (753 BC – 509 BC)

POLITICS

• Romulus founds Rome and becomes first Roman king

• All government power vested in the king
• Last king expelled from Rome in 509 BC

SOCIETY

• Rome consisted of a small community – subsistence farming

• 2 Social classes come into existence: Patricians + Plebians

LAW

• Law and religion = intertwined

• Law not accessible to the man in the street

THE REPUBLIC (509 BC – 27 BC)

POLITICS

• CONSULS
 govern Rome
 elected annually
• SENATE
 advisory body of Elders
 their opinions became so NB that these were regarded = law
• POPULAR ASSEMBLY
 represented all the ppl of Rome
 could promulgate laws

SOCIETY

• Rome’s citizens grow to 1 million

• Time of great military conquests
• Rome = business centre of ancient world
• Society becomes very cosmopolitan

LAW

• 450 BC = codification of the 12 Tables

• 367 BC = office of Praetor

 administration of justice
 praetor urbanus : ius civile - Roman citizens only
: ius honorarium – civile infl by gentium
 praetor peregrinus : ius gentium – foreigners and Roman citizens
 jurists = started to develop into an independent group
THE PRICIPATE (27 BC – AD 284)

POLITICS

• EMPEROR
 Governed Rome
 Consolidated all state power in himself
 POPULAR ASSEMBLY
 Lost its importance
 Emperor had the true legislative power
 SENATE
 Became an instrument of the emperor, acted on his wishes
 EMPEROR AND HIS OFFICIALS
 Tool over the role of the Republican magistrates

SOCIETY

• Rome = economic centre of the world

• Early Principate characterized by peace + prosperity
• Cosmopolitan society

LAW

• PRAETOR
 AD 130 = end of the praetor’s contribution to legal development,
subsequent praetores were bound to the AD 130 codification of praetorian
edicts

• JURISTS
 Contributed immensely to legal developments
 Functions:
- giving advice
- teaching
- assistance: legal transactions
- assistance: court
- interpretation
- writing
 5 great jurists:
- Gaius
- Papinian
- Ulpian
- Paul
- Modestinus

• THE EMPEROR
 Became the source of law
 Enacted different forms of legislation:
 - edicts
- decrees
- rescripts
- mandates

THE DOMINATE (AD 284 – AD 476)

POLITICS

• Emperor = autocratic ruler

• Empire divided into Eastern and Western Roman Empire (AD 395)
• Western Roman Empire fell (AD 476)

LAW

• Postclassical era of Roman Law

• Decline in legal science
• Simplification of classical works
 Epitome Gai
 Sententiae Pauli
• Statute of Citation

JUSTINIAN’S CODIFICATION:
THE CORPUS IURIS CIVILIS

REASONS FOR CODIFICATION

• Systematise the law

• Eliminate outdated legislation
• Make the law accessible to everybody
• Eliminate inconsistencies

4 COMPONENTS OF THE CORPUS IURIS CIVILIS

• Codex
• Digest
• Institutes
• Novellae

THE IMPORTANCE OF THE CORPUS IURIS CIVILIS

 • It provides modern society with a version of Roman law as it was at
the end of its development
• Influenced the legal systems of many countries
• Its one of the most complete sources of Roman law
• It came into being after the classical period when Roman law was at
the peak of its development

FACTORS WHICH PLAYED A ROLE IN THE SURVIVAL OF ROMAN LAW IN

THE
WEST BETWEEN THE 5TH & 6TH CENTURIES

THE “ROME IDEA”

• Refers to the Germanic ppl’s admiration of Roman culture, particularly its

legal system and ordered government

THE CODIFICATION OF GERMANIC LAW

• Leges Barbarorum – recorded or written tribal laws of the Germanic ppl

• NB because:
 they are sources of Germanic law
 they played a role in the survival of Roman law after the fall of the Western
Roman Empire (written by clerics schooled in Roman law)

ENACTMENTS (LEGISLATION) OF THE FRANKISH KINGS

• Capitularia = pieces of Frankish leg by Frankish kings

• Contained Roman rules (written by clerics schooled in Roman law)

THE PERSONALITY PRINCIPLE

• Each person lived according to the law of his or her own tribe
• Leges Romanorum = recorded Roman law by Germanic ppl for Romans who
lived in Germanic territories. Vulgar Roman law. Roman law reflecting a
Germanic influence
• The survival of Roman law in the West was due in part to the codifications
of Roman law by the Barbarians
• Examples: Lex Romana Visigothorum

THE ROMAN CATHOLIC CHURCH

• In Roman times, the Catholic Church in the West was built on a Roman legal
foundation:
  Internal relations in the Church were governed by Roman law
 Special legislation was enacted by the Roman emperors with regard to the
Church and to church affairs
• Canon law NB because:
 it served to temper the strictness of Roman law
 it became part of Roman-Dutch law which was brought to SA in 1652

THE RISE AND SPREAD OF FEUDALISM

• Feudal law regulated the relationship between the feudal lord and the
vassel
• Led to legal diversity
• Libri Feudorum = best known feudal law, incorporated into the Corpus Iuris
Civilis by jurists of the late Middle Ages
• The feudal system contributed indirectly to the survival of Roman law
during the Middle Ages because it emphasized the territoriality principle

THE TERRITORIALITY PRINCIPLE

• Everyone living in a specific territory is subject to one law

• Replaced personal or tribal law
• Was influenced to a greater or lesser extent by Roman law

THE GLOSSATORS (BOLOGNA, ITALY)

TECHNIQUE

• Exegetical / Interpretive method of study

• Corpus Iuris Civilis
• Explanatory “glosses” in the margin and between lines of text

NB GLOSSATORS

• Irnerius
• Vacarius
• Accursius

IMPORTANCE OF THEIR WORK

• Restored Roman law

• Made a scientific study of Roman law
• Responsible for the spread of Roman law

CRITICISM

• Disregarded contradictions in the text

• Lacked systematization
• Lacked formal perspective
• Disregarded the needs of the practice
 • Accursius made bad choices in selecting texts for the Glossa
Ordinaria

 Glossators = 1st in the West to study law scientifically, their studies led to the
spread of Roman law to other parts of Europe, resulting in the survival of
Roman law in the West 

_____________________________________________________________________
THE ULTRAMONTANI (FRENCH LAW SCHOOL – ORLÉANS)

TECHNIQUE

• Dialectical
• Corpus Iuris Civilis = source book for critical discussion
• Goal was to incorporate Roman law into contemporary practice
• More hands-on than Glossators – creating practical legal system

NB ULTRAMONTANI

• Revigny
• Bellaperche

ULTRAMONTANI + CANON LAW

• Revigny & Bellaperche = worked out rules for reception of canon law
into secular law:

 Canon law + Roman law each had their own sphere of application
 Canon law (by virtue of its fairness) could be used to temper the severity
of Roman law

IMPORTANCE OF THEIR WORK

• Were the 1st scholars to give official recognition to canon law and to
lay down rules for the reception of canon law into secular law

THE COMMENTATORS

TECHNIQUE

• Scholastic
• Interpret glosses of Copus Iuris Civilis
• Synthesis between Roman law, Germanic law, canon law and town
law

NB COMMENTATORS
 • Cinus
• Bartolus (greatest medieval jurist)
• Baldus

IMPORTANCE OF THEIR WORK

• Laid the foundations for the school of natural law

• Bartolus laid the foundation for modern private international law
• Considerable contribution in the field of private law
• Created a practical legal system that was received throughout Europe
• The Roman law which they commented on was the Roman law which
was later received into the Germanic customary law of the
Netherlands, later forming part of Roman-Dutch law which was
brought to SA in 1652

CRITICISM

• Gave undue weight to the majority opinion

• Poor Latin
• Followed the Glossa Ordinaria to such an extent that they often
ignored the original text, thus losing historical perspective

THE COMMENTATORS & CANON LAW

• Influenced the creation of the European common law (Ius Commune)

• Cinus, Bartolus and Baldus = developed rules for application of canon
law

 Canon law and Roman law are two separate legal systems which should
be kept apart

 3 instances in which canon law had to be applied instead of Roman law

 in purely spiritual matters
 in matters concerning the Church
 in those cases where the appl of Roman law would amount to sin

THE FRENCH HUMANISTS

TECHNIQUE
 • Opposed the attitude of the commentators
• Disliked the crude language of the Middle Ages
• Used elegant Latin aka “the elegant school”
• Reconstruct works of the classical Roman jurists
• Rediscover Roman law as it was before Justinian’s codification
• Study of law as a system
• Corpus Iuris Civilis & Roman law sources preceding it
• Aim was to go back to the original sources (did not use Glossa
Ordinaria or commentaries of the Middle Ages – ultramontani or
commentators)

NB HUMANISTS

• Cujacius
• Donellus

IMPORTANCE OF THEIR WORK

• Spread of Roman law

• Very high standard
• Systematization of legal material = of great value

CRITICISM

• Little or no influence on practice

• Ignored the whole course of development of the law
• Lacked historical perspective

THE HUMANISTS AND CANON LAW

• Donellus = separation of canon law and secular law, tried to limit

appl of canon law
• Duarenus = favored the study of canon law, this approach followed in
practice

THE CODIFICATION OF FRENCH LAW

• French civil law (private law) codified by Napoleon in 1804

• Code Civil = huge influence on legal systems of many European
countries

USUS MODERNUS PANDECTARUM

• New school of law in Germany

• Theoretical-practical line of thought
• Roman law as it was still in use and was applicable
• Described Roman law as it was applied in practice
• Carpzovius II : founder of German national law, Bartolus of Germany
 THE HISTORICAL SCHOOL

• In reaction to the doctrine of the law of nature

• Did not recognize any permanent and unchangeable law
• Law developed to suit the needs of the nation
• Considered the law to be changeable
• Roman law studied merely for its scientific interest
• Savigny: leading figure of this school

IMPORTANCE OF THE EUROPEAN IUS COMMUNE :

• Legal systems of many Western European countries share several similarities

ENGLAND
• Lawyers from these countries may consult the legal system of another country which formed
• part of the European ius commune to find a solution
OVERVIEW OF THE DEVELOPMENT OF ENGLISH COMMON LAW
• Applied in the Netherlands, therefore Roman-Dutch law which was later introduced into SA
 3 Influences on the development of English common law:
• Relevant for SA lawyers today, because they may look to legal systems of Western Europe
for solution
 to a legal problem
William if our law does
the Conqueror not provide to
(attempted a solution
unite England, uniform
national legal system)
 A restricted reception of Roman law (Eng CL already well-
est legal system)
 The 3 courts (development of English common law)
 King’s Court
 King assisted by locals: beginning of the jury system
 Civil Procedure: the “writ system”
 Court of Chancery
 Law of equity – supplemented the rigid common law
 Court of Admiralty
 Piracy and all maritime and commercial cases
 Law Merchant (International commercial law)

• RESISTANCE TO ROMAN LAW INFLUENCES

 Resistance by the legal profession
 Resistance by the king
 Resistance by the aristocracy
• INFLUENTIAL EARLY ENGLISH LEGAL SCHOLARS
 Sir Edward Coke
 Blackstone
• CHANGES AND LAW REFORMS IN THE 19TH CENTURY
 Changes in society and the economy
 Common Law Procedure Act
 Judicature Acts
 Law reports and precedents
THE NETHERLANDS

• Seven Provinces:

 Holland  the Ommelands

 Zeeland  Friesland
 Utrecht  Overjissel
 Gelderland

• Reception in 2 stages: Early Reception & Reception Proper

• Law codified in 1809 – based on the Code Civil (Bonaparte)
• Roman-Dutch law transplanted into SA in 1652 – Jan van Riebeeck
 Developments in Roman-Dutch law in Netherlands affected the way the
law was applied in SA
 Civil Code of the Netherlands does not apply in SA

ROMAN-DUTCH LAW

• 2 Forms of interpretation

 Narrow Interpretation
  Roman-Dutch law as law of Holland applied in the 17 & 18th
centuries
 Roman law as amended by legislation and customary law of
Holland
 Broad Interpretation
 Acknowledges narrow interpretation + includes Western
European CL
 Includes broader influence in the construction of Roman-Dutch
law

NARROW INTERPRETATION BROAD INTERPRETATION

 Roman law  Roman law

 Customary law  Customary law
 Legislation  Legislation
 European ius commune
 Canon law
 Roman law
 Germanic Customary law

• In Du Plessis v Strauss, the SCA (then Appellate Division) decided in

favour of the narrow interpretation of RD law, pointing out that the
law of Holland:

 Must be seen in its historical perspective

 Formed part of the European ius commune &
 The law of ⊥ other Dutch provinces played a role in ⊥ dev of the law of Holland

SOURCES OF ROMAN-DUTCH LAW

• The old writers

○ province in which they lived
○ period in which they worked
○ type of work written by the author
○ influence on SA legal practice

• Legislation
• Court Decisions
• Opinions
• Custom

NB JURISTS – 17TH CENTURY HOLLAND

GROTIUS

 Inleidinge
- first conscious description of Roman-Dutch law
 De Jure Belli ac Pacis
- public international law, law of nature + legal philosophy

SIMON VAN GROENWEGEN

 Notes on Grotius Inleidinge

- remedied defects
 Tractatus
- indispensable authority on Roman-Dutch law of the 17th century
- it indicated where the Corpus Juris Civilis was still applicable

SIMON VAN LEEUWEN

 Het Rooms-Hollandsche Recht

- useful reference work, in conjunction with notes by Decker
- wrote in Dutch, thus being more accessible to SA
- was the first to use the term “Roman-Dutch law”

JOHANNES VOET

 Commentarius
- commentary on the Pandects
- deals with Roman law with the addition of the existing law of his time
 Humanistic approach to Roman law
 Comprehensive review of the whole field of Roman-Dutch law
 Influence felt throughout Europe and SA

OTHER NB JURISTS IN 17TH

CENTURY

FRIESLAND:

 Ulrich Huber

- Praelectiones

UTRECHT:

 Matthaeus II

- De Criminibus

 Paulus Voet

NB JURISTS – 18TH CENTURY NETHERLANDS

 JOHANNES VOET

 Wrote in both the 17th & 18th centuries

CORNELIS VAN BIJNKERSHOEK

 Quaestiones
- Deals with public international law
 Observationes
- Very NB because it showed how the courts arrived at their decisions

DIONYSIUS VAN DER KEESSEL

 Theses Selectae
- The last outstanding work in the field of Roman-Dutch law before SA was
separated from the Netherlands

JOHANNES VAN DER LINDEN

 Koopmans Handboek
- was the last treatise (thesis) on Roman-Dutch law as it existed in Holland
before the codification of the law of the Netherlands
- in SA = given more recognition than it deserves

IMPORTANCE OF THE OLD WRITERS (IN GENERAL)

• Old writers are the scholars who assimilated Roman law into the customary laws of
Holland and the other provinces of the Netherlands – they wrote about Roman-
Dutch law

• Some demonstrated how Roman law was applied in practice

• We are very fortunate in being able to read what Roman-Dutch scholars of that
time had to say about the application and development of the law, something that
is not possible with indigenous African law
THE DEVELOPMENT OF THE SA LEGAL SYSTEM BEFORE THE 1990’S

ROMAN-DUTCH LAW (1652 – 1795)

AUTHORITIES THAT PLAYED A ROLE IN THE ADMINISTRATION OF THE CAPE:

• The States-General
○ Part of the government of the United Netherlands
• The VOC and Here XVII
○ Dutch East India Trading Company (VOC) (not an organ of state)
○ Group of 17 Dutch gentlemen = directorate of VOC
• Governor-General-in-Council at Batavia
○ In charge of VOC HQ in Batavia
• Governor-General-in-Council at the Cape
○ Directly responsible to the above

ADMINISTRATION OF JUSTICE:

• Governor in charge of law & order

○ Only one “court”
○ Artycelbrief = document regulating conditions of employment (of VOC)
• Raad van Justitie
○ A court est in 168
○ Chief executive = final say all admin matters, including legal matters
• Fiscal
○ Prosecutions (scheister) (received percentage of every fine he issued)
○ Admin of justice = primitive and badly ordered

SOURCES OF LAW:

• Legislation
○ Agencies which had legislative power
- 4 authorities ↑
○ No authority to issue Placaeten
- The States of Holland
• The old writers on Roman-Dutch law
• Judicial Decisions (no binding authority)
• Custom
ENGLISH LAW (1795 – 1827)

 First British occupation of the Cape: 1795 – 1803

○ Maintenance of judicial system established during Dutch (Batavian)
rule
○ High Court: jurists not always trained, Governor = final auth in
civil+crim matters

 Second British occupation of the Cape: 1806 – 1961

○ Changes in administrative justice:
- Court of Criminal Appeal instituted
- Circuit Courts intro
- Courts were opened to everybody (had previously been closed to gen
public)
- Changes to Criminal Procedure

 First Charter of Justice promulgated: 1827 (came into effect in 1828)

○ NB changes to the court structure and in formal law (law of evidence
and proc)
- Supreme Court of the Colony of the Cape of Good Hope
- Privy Council (highest court of appeal in all matters)
- Jury System (discontinued in 1969)
- Judges (had to be recruited from among advocates of Eng, Ire, Scot)
- Advocates (same as above, also those with law doctorate from Oxf,
Cam etc)
○ Paved the way for the reception of English law into the existing law

MECHANICS OF THE RECEPTION PROCESS OF ENGLISH LAW IN THE CAPE

• Viscount Goderich: gradual assimilation of English law into the existing law

• Factors contributing to the reception of English law:

 English Institutions
- Education
- Language
- Commerce
 Judiciary
- Inns of Court tradition (req that advoc pass exams in Eng CL to practice)
- Accessibility of English sources
- Stare Decisis (earlier decisions have binding authority)
 Legislation
- English law imported thru statutes

• Some areas of law experienced both scientific and practical reception of English
law

LEGAL DEVELOPMENT SINCE THE UNIFICATION OF SOUTH AFRICA IN 1910

• LEGISLATION
- entire sections of English law directly incorporated into SA law without
regard to circumstance – big mistake, but later accepted, adapted and
amended
• THE TEACHING INSTITUTIONS
- scientific Roman-Dutch approach

• THE APPELLATE DIVISION

- contrib to unific of SA law and the creation of an independent legal system
- Purists: Roman-Dutch law to be applied in its pure form, free of English law
- Pollutionists: English law solutions accepted where old-writers are silent
- Pragmatists: steer a middle course between the 2 opposing views
- Appellate Division takes pragmatic view

• SOUTH AFRICAN LAW REFORM COMMISSION

- comparative legal material
THE HISTORY OF HUMAN RIGHTS IN SOUTH AFRICA

• CONCEPT OF CONSTITUTIONALISM

 Government is obliged to act in accordance with the prescriptions/conditions

laid down in a constitution

 3 approaches to the principle of constitutionalism

- Complete Denial
- Partial Recognition
- Full Recognition

 3 Fundamental values of SA’s new constitutional order:

- human dignity
- equality
- freedom

• TESTING CAPACITY OF THE COURTS

 Formal testing capacity

 Full testing capacity

[NO TESTING CAPACITY = CONSTITUTIONALISM COMPLETELY DENIED]

[FORMAL TESTING CAPACITY = PARTIAL CONSTITUTIONALISM RECOGNITION]
[FULL TESTING CAPACITY = FULL CONSTITUTIONALISM RECOGNITION]

UBUNTU:
◦ common humanity
◦ social justice + fairness
◦ tolerance, compassion, forgiveness
◦ aka African Humanism