Africanisation

Study Section 2.2.2:

Development of Roman law

Influence of English law

Source: https://voegelinview.com/the-contribution-of-roman-law-to-modern-legal-systems/
 Outcomes of study section 2.2

After completion of this study section, you should be able to:

 Distinguish the influences of:
 Roman law;

 Roman Dutch law;

 English law;

 African customary law; and

 Religious legal systems in the South African law.

 Critique the recognition of Customary Law in the period 1652-1994.

Development of the South African legal system:
Unique
South
African legal
Supreme
system
Constitution
Religious
legal systems Legislation
First instance – influence of Judicial precedent
of British Indian International,
colonization - religions, regional & foreign
Roman 1795 Cape Malays law
Dutch law and other Common law
English law
1652 – first groups which Customary law
1806 – second
instance of migrated to
African instance Custom
colonization SA
customary British of
law – prior to 1803 – colonization
1652 Based on the sources of the current legal system, it
Dutch would be incorrect to say that South African law is a
control Roman-Dutch law system.
 Overview
 SA has a mixed legal system = there are several sources of our law:
o Indigenous law / customary law
o RDL = Roman law + Dutch law (mixed)
 How is this significant to SA law today?
o EL was introduced during colonisation
o CL?
o Constitutional dispensation in 1994
 SA doesn’t have a fully codified legal system
 How do these legal systems and legal developments contribute to SA law as it stands today?
Misconception about SA legal history ?
 Second phase = intro of RDL first colonisers
 Third phase = British rule introduced EL = second colonisers
 Fourth and fifth phase = afterlife of colonial rule + Constitutional dispensation
 Overview cont.
Kleyn et al 28
 Dutch colonisation
 17th century = golden age for Netherlands because of its commercial trade with the East [India and Indonesia]

 Trade took place via the Cape of Good Hope

 To administer commercial relations = VOC established

o VOC also controlled the Dutch territories in the East

 JVR was an official of the VOC who arrived in the Cape in 1652 – why did he arrive?

 Dutch colonised the Cape ITO international law = problem

o International law only permitted occupation if a territory was res nullis + the state intends to colonise it

 Dutch went on to colonise the Cape – why?

 Law in practice at the time = RDL

 Dutch colonisation cont.
 RDL had been imposed [not received] on indigenous black people when what is now SA was colonised.

 Sources of RDL at the time:

a) RDL of Holland

b) Batavian Placaaten – legislation from the Dutch colony of Batavia [Jakarta today]

c) Statutes of India

 This law applied for almost 150 years and RDL was applied and developed as time went on = applied by courts established = names of
the courts?

 What happened to indigenous law during this time = Dutch settlers ignored it = no recognition given to the African legal system
o = RDL was imposed [not received] on indigenous people

What is Roman Law to begin with?

 What is RL?
 From 753BCE to 565 CE – RL was developed (1300 years)

For SA law today = RL forms part of our CL

 There are a few periods in RL:
a. Period of the kings – [time period?]
b. Roman republic – [time period?]
c. Roman empire – [time period?]

Period of the kings (AKA?) – 753 BCE – 510 BCE

o Founded the city of Rome in Italy – today its still the capital
o 7 kings reigned over the romans during this period
o The romans were primitive farmers and lived according to uncodified customs passed down through generations
o Religion formed part of the law
o Last king was despotic / autocratic and was ousted
 RL cont.
Roman republic – 510 BCE – 27 BCE
• Led to a new constitutional dispensation (period) = Republic

• Consisted of 3 components:
1. Consules (magistrates) – replaced the king
2. Popular Assembly – passed legislation
3. Senate (advisory body) – passed resolutions which were only advisory but ended up being followed as if it had force of law
• RL was codified for the first time early in the Republic [450 BCE] = the Law of the Twelve Tables by the PA
o Primitive rules for a primitive society – example?
o Growth in Roman society
o Creation of Roman Empire
o Development of law
o Praetors issued edicts
o Jurists

• Republic made way for a new constitutional dispensation – Roman Empire

 RL cont.
Roman Empire – 27BCE – 1453CE

• Governed by Emperors – assumed all authoritative functions

• Empire expanded extensively

• Empire and law reached its highest state of development – ‘classical Roman law’

• Followed by a decline:

o Empire split into Western and Eastern Roman Empires

o Capitals of each?

o 476CE – West overrun by Germanic tribes = ‘fall of the Roman Empire’

o Roman subject to Germanic rule = Roman-Germanic society

o Classical RL was simplified by Germanic law

 RL cont.
o Eastern empire = RL survived more successfully and the Emperor Justinian ruled
 But RL at this stage was so sophisticated in its advanced development = difficult to access
 Justinian decided to bring some order to RL at this stage which was comprised of:
1. Customary law
2. Law of the 12 tables [legislation promulgated by PA]
3. Enactments of the senate
4. Edicts of the praetors [magistrates]
5. Writings of jurists
6. Imperial legislation [passed by the Emperors]
 Justinian codified RL as a whole so that any legal dispute or issue could be dealt with by one codified source of law = a book of all answers
 This became known as the Corpus Iuris Civilis consisting of:
1. Institutiones – textbook for law students explaining the law clearly and simply
2. Digesta – codification of the works of the jurists. It’s the most NB and largest part of the CIC = it’s got opinions etc. from all the jurists who wrote
on RL
3. Codex – collection of imperial legislation
4. Novellae – new legislation passed by Justinian = promulgated in the form of the Codex
 RL cont.

 Justinian understood that the law is non-static = there will always be a need for constant change, development, and adaption in accordance with societal changes.
 This is where RL took its final form = in the CIC by J in the 16th century
At this stage, what was RL was known for?
o It’s said that when Justinian died, the CIC was never practised in the Eastern empire the way intended by him
o Because after his death, it became simplified and was practiced that way.
o 1453 – Eastern empire conquered by the Turks
o Remember: in the Western empire = simplified RL together with Germanic law was applied.

Q – how did RL become intertwined with Dutch law to become RDL? = Reception of RL
 Reception of RL
Reception of RL:
• How RL in the form of the CIC was voluntarily received and merged with Germanic law in Western Europe from the 12 th century

• Note that when the CIC was developed in the 6th century = it only began to influence Western Europe 6 centuries later.

To understand why RL was eventually adopted in the Western Europe = basic understanding of what happened during the ‘dark middle-
ages’ in Western Europe
o This period of time was characterised by hostile attacks and the population became fragmented into small societies / ‘estates’
because of an order known as ‘feudalism’ – land tenure [occupation] has a military basis
o ITO this order = landowners would give their land to ‘vassals’ to occupy but the vassals had obligations to the landowner which
included military support
o People were dependent on land for survival = they gave into the system of feudalism
o NOTE: at this time there was no sophisticated legal system in place also because there was no large-scale commercial trade going on
which necessitated it.
 They lived according to Germanic law
 Reception of RL cont.
Reception of RL:

 the only authoritative institution strongly recognised at the time was the Roman Catholic Church

 Headed by the Pope and had its seat in Rome

 Germanic law [GL] consisted of unwritten customs / traditions passed down through generations; differed between areas

 GL strongly influenced by fate and divine intervention

 Examples – eating piece of bread; walking barefoot on hot ploughshares – it determined innocence or guilt

 Very primitive although some of it has importance for SA law – our system of land registration can be traced back to GL

 During this time of feudalism = RL was not studied or taught in Western Europe – this only started in the 12th century because of
the Glossators
 Reception of RL cont.
Glossators:
• 12th Century - increase in trade in Northern Italy

• In the city of Bologna, the law school of the glossators was established = developed into the University of Bologna which is an international
university and one of oldest in the world.
o The professors in Bologna began the first scientific study of the CIC to explain their meaning
o What did glossing entail?
o Explained the meaning of the texts and if there was uncertainty / contradictory = solution
o Also used the CIC as a basis to create new doctrines that suited their existing needs
o But they confined themselves to the law in the CIC = didn’t consider other law of their time which was GL

• Because the University was international, the glossator’s works were not limited to Italy = they came from all parts of Western Europe – how did this
spread RL?
• Began to spread across Western Europe; in the fragmented feudal system; RL became a subsidiary legal system; what is a subsidiary legal system?

• BUT RL was not the ONLY legal system received in Western Europe = Canon law
 Reception of RL cont.
Canon law
• Roman Catholic Church had its own legal system called canon law [church law] = codified in the Corpus Iuris Canonici
• Church followed RL; canon law was based on RL = the church preserved RDL during the early middle ages through canon law
o It was applied in ecclesiastical [religious] courts

• Canon law was also taught at the university of bologna + other medieval universities = lawyers were trained in RL and canon law
• Not limited to religious matters – it also applied to secular [non-religious] matters marriages - wills, status of illegitimate children
etc.
• Canonists [canon law layers] also extended and developed RL doctrines like the Glossators
o Examples?

• Canon law was then applied in the secular [non-religious] courts too
• = reception of RL also includes the reception of canon law
o People responsible for the reception of canon law in the secular sphere = the Commentators
 Reception of RL cont.
Commentators
• AKA post-glossators = successors of the glossators

• Glossators started the first main scientific study of the CIC which made the CIC easier to understand and more accessible throughout Europe

• Commentators applied themselves to the development of a modern legal system that was in accordance with the needs of everyday legal
practice = they did not confine themselves to the CIC only - like the glossators = considered other sources of law:
o Germanic customary law
o Local laws
o Statutes of the different feudal cities

• Writing took the form of long commentaries – merged RL with other sources of law to create a legal system that could be applied in practice
o Started at the end of the 14th century in Bologna and continued until the 16th century – spread all over Western Europe
o It became known as ‘learned law’
o It was received in the Germanic legal systems of Western Europe = Western Europe became romansied

• RL can be seen as providing uniformity of the law in the legal systems of Western Europe
o Also resulted in medieval elements like fate and divine intervention being removed from the law
 Reception of RL cont.
The Netherlands
• The territory of the Netherlands lies in Western Europe + first formed part of the western roman empire

• 1579 – Republic of the Netherlands was established with 7 provinces with a central governing body = Estates-General

• 17th century = ‘golden age’ of the Netherlands

• Also experienced the reception of learned RL = RL as developed by the glossators and commentators was merged with local Germanic
[Dutch] customary law
o It was not received in the exact same detail in each province so it did differ slightly
o But RL was the underlying unifying factor in each of the legal systems of each province

• RDL – law of the Netherlands after the reception

o Found in legislation – placaaten of the Estates-General; decisions of Dutch courts; writings or treatises of Roman-Dutch jurists
o Most important jurists?

• RDL was developed and extended until it was codified in 1838 – Burgerlijk Wetboek; then later adapted as the Nieuw Burgerlijk Wetboek
o = jurists no longer served as authority once the law became codified
What does this mean for SA = when JVR arrived at the Cape in 1652?
 English colonisation
English Colonial influence:
• 1806 = Dutch rule at the Cape ended = British occupation began

• Britain didn’t abolish the application of RDL but eventually EL did begin to influence the RDL legal system

• The development of EL was done by way of creating legislation + precedent

o Legislation – criminal and civil procedure, evidence and the jury system was received
 Courts were changed to mimic the British courts – landdrosten + heemraden replaced with magistrates courts
 Higher court [supreme court] also established – appeals?
 Legal profession changed – introduced the bar [advocates] and side-bar [attorneys]
 Some legislation like the Insolvency Act is based on the British equivalent - Calitz
 Major procedural law introduced + some substantive law
o Precedent –courts sometimes applied English doctrines in their decisions – law of delict and contract
 Because the judges and lawyers themselves initially received their legal education at English universities [Oxford / Cambridge]
 Found the application of old authorities on RDL problematic
 English colonisation cont.
Great Trek and Union
• 1836 – the Great Trek began

• The Voortrekkers from the Cape took RDL with them the inland part of the country - why?

• As the years went on, the Voortrekker territories were also annexed by the British

• 1910 – SA consisted of 4 British colonies: each one had its own government = Union of SA
o In all colonies = RDL was applied as common law
 Cape
 Natal
 Orange free State
 Transvaal
o Union was established by an Act of the British Parliament = South African Act
 One central government + one highest court [appellate division of the supreme court]
 Instituted for the whole country
 Doctrine of precedent = all courts were bound by the decisions of the AD = created uniform application of the law throughout
the Union
 English colonisation cont.
Indigenous law

o The Dutch colonial authorities ignored indigenous

o During British occupation, each of the colonies began to recognise indigenous law through their own legislation

 Black Administration Act – created a uniform policy for the whole of SA regarding the acknowledgement and application of indigenous
law

 Allowed for a special court system for black people + for the application of indigenous law

o This is why today we have a system of legal pluralism

 RDL as influenced by EL is applied but also indigenous law

The CL of SA today = RDL imposed as influenced by EL

 Recapping 2.2.2
Structural overview of SA legal system
Dutch colonisation
RL
 Three periods of RL development
 Western Europe v Eastern Europe
 Reception of RL

English colonisation
Link the development of RL, how it became RDL, how it was influenced by EL
to become the CL of SA today.