Fundamina : A Journal of Legal History
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Open Access journal
ISSN (Print) 1021-545X
Published by Sabinet Online Ltd [188 journals]
- The constitutional right to fair labour practices : a consideration of the
influence and continued importance of the historical regulation of
(un)fair labour practices pre-1977
Authors: M. Conradie
Abstract: It is safe to state that the right to work - to provide labour in return for remuneration - has its origin in a person's right to existence. A person's right to physical and emotional existence is probably the most fundamental of all human rights. In primitive times this right was subdivided into seven categories: the right to fish, to hunt, to work land, to harvest, to associate, to be free from troubles and the right to loot. But an increase in the population on earth and a consequent decrease in natural resources led to the exchange of the first four rights (fishing, hunting, cultivation and harvesting) for a right where independent existence was lost forever: labour.
- L'emploi des standards en droit romain
Authors: Elena Giannozzi
Abstract: Définir en quoi consiste un standard en droit est une question délicate qui relève plus de l'épistémologie que de la science juridique. En dépit de la difficulté à définir le standard, le droit positif français emploie à plusieurs reprises cette technique, bien que l'apparition du mot "standard" en droit français soit très récente. Ce terme, qui dérive du vocabulaire anglais, apparaît en France au cours de la décennie 1920 dans un mouvement de réaction contre la méthode de l'école de l'Exégèse.Le renvoi au bon père de famille fut sans doute l'une des utilisations les plus célèbres de la technique du standard. La réforme du 4 août 2014 l'a effacé au profit des expressions "raisonnable" ou "raisonnablement". Le législateur a maintenu la technique du standard en changeant simplement la référence: la raison se substitue alors au modèle du bon père de famille qui est considéré comme incompatible avec la parité entre hommes et femmes.
- Existimatio as "human dignity" in late-classical Roman law
Authors: Jacob Giltaij
Abstract: The rise of the notion of "human dignity" as a basis for the modern conception of human rights is currently being hotly debated. As is the case with research into the historical roots of an idea of human rights in general, the origin of the notion is very much tied to its definition, for how one defines something also determines what its origins are and vice versa. For human dignity, this means distinguishing it from dignity as such, even though the line between the two notions seems arbitrary at best.
- Human rights in the eighteenth-century travelogues of François Le
Authors: Jan F. Mutton
Abstract: Human dignity and human rights, land restitution, inequality, development and the protection of the environment continue to dominate the political agenda in our postcolonial society. These issues are not new, however; they have been recognised ever since the early days of colonisation when legal minds and philosophers identified them in their writings and explorers and travellers discussed them in their travelogues.More than two hundred years ago, during the Age of Enlightenment, philosophers and legal thinkers such as John Locke in England, Jean-Jacques Rousseau, Mirabeau and Montesquieu in France and Thomas Jefferson in the United States stood up for civil liberties and human rights. Their views have been well summarised by Mirabeau in his Adresse aux Bataves where he refers to a number of political and civil rights, to religious freedom and a free press as "inalienable and imprescriptible rights without which it is impossible for humankind in any climate to preserve dignity, to secure development or to enjoy in tranquility the blessings of nature".
- Cum dignitate otium. Remarks on Cicero's speech in defence of Sestius
Authors: Tamas Notari
Abstract: Cicero delivered his speech in March 56 BC in defence of Publius Sestius, who was charged on the grounds of the lex Plautia de vi with acts of violence offending public order/public tranquillity. He convincingly proved that they were measures required by the situation of lawful defence. We need to make it clear: the speech can be considered primarily a brilliantly executed statement of one of the important fundamental postulates of Cicero's philosophy of the state rather than a lawyer's or orator's achievement. Pro Sestio is the first occasion on which Cicero, having returned from exile, was able to formulate his program of rethinking the idea of a res publica harrowed by civil strife and the preserving-renewing reorganisation of the state. In this speech Cicero clearly takes a stand for Sulla's "constitution", that is, for what he interpreted as Sulla's constitution: An argument for strengthening the position of the senate meant to govern the state. His defendant was acquitted, owing not only to the brilliant handling of the facts of the case, but most probably also to the political program presented in the speech with such exhaustive details: A captivating pathos that won his audience's approval.
- To be or not to be of good fame, that is the question
Authors: David Pugsley
Abstract: A good conference has interesting papers, followed by a lively discussion, stimulating new ideas and theories. The 2015 conference of the Southern African Society of Legal Historians was a good conference. My own paper is being published elsewhere, but the discussion at that conference about the law of duelling stimulated the following thoughts.Duel comes from the Latin, duellum, a variant of bellum, war. A duel is a private war. Duelling was (and still is) illegal. It is a breach of the peace. And anyone caught about to fight a duel might be taken before the magistrates and bound over to keep the peace, normally for one year. The security required was sometimes very high. In 1798 when Lieut Bromley, of the Marines, and Mr Palmer, of Ayre street, Piccadilly, were caught planning a duel near Upnor Castle, Kent, Palmer was required to give security of Â£2,000 (Â£1,000 himself, and two sureties of Â£500 each), because he would not give his word of honour that the matter would not be pursued. Bromley was bound over in the sum of Â£500 and two sureties of Â£250 each. (Palmer had horsewhipped Bromley for sending a very impertinent letter to his wife.)
- Constitutional scapegoat : the dialectic between happiness and apartheid
in South Africa
Authors: Saul Tourinho Leal
Abstract: The consequences of South Africa's apartheid era are still visible in terms of their effects on the South African economy, and in terms of the racism which has eroded various human rights. Apartheid may be seen to be the result of arrogant and racially discriminant economic development by the white minority, which resulted in inequality and injustice. The implementation of public economic policies, where the end justifies the means, creates the opportunity to use scapegoats in order to justify economic injustices to the public.
- The life and times of Cape Advocate Dirk Gysbert Reitz : a biographical
Authors: J.P. Van Niekerk
Abstract: While trawling for material on the (Cape) Vice-Admiralty Court recently, I came across a reference to the following entry in the Tuesday 28 February 1854 number of the South African Commercial Advertiser and Cape Town Mail.
- Judicial administration beyond the Orange River from 1838 to 1843
Authors: Liezl Wildenboer
Abstract: In Southern Africa a movement known as the Great Trek commenced in 1836. It entailed that groups of people with their families (generally known as the Voortrekkers or simply the Boers) left the Cape Colony and migrated north beyond the Orange River with the purpose of establishing an independent state free from British rule. After the battles at Marikwa in November 1837 and Blood River in December 1838, the main Voortrekker movement split into two with some Boers settling in the area east of the Drakensberg (later Natal) and others settling in the area west of the Drakensberg where they established the towns of Potchefstroom and Winburg (in what would later become the Zuid-Afrikaansche Republiek - or ZAR for short - and the Orange Free State respectively). No longer a nation on the move, the needs of society changed; it now required more than mobile or emergency institutions.
- Lezioni 1930 - 1932. Scuola di Diritto Romano e Diritti Orientali raccolte
da Károly Visky, Roberto de Ruggiero, Salvatore Riccobono & Filippo
Vassalli : book review
Authors: Ivan Siklosi; Peter Deak
Abstract: This book was recently published, in Italian, by the Faculty of Law of the University La Sapienza of Rome. It was edited by Professor Gàbor Hamza (Professor at the Eötvös Loránd University, Budapest) and presented (in 2015) at the prestigious Casa Editrice Jovene di Napoli. It is based on lectures presented during the early 1930s by outstanding Italian Romanists (Vassalli, De Ruggiero and Riccobono) in the frame of the Scuola di diritto romano e diritti orientali - the Scuola can be regarded as an institution at the highest level of postgraduate studies of Roman law. The book, containing the materials of these lectures (courses), is based on the manuscript of Kàroly Visky, whose scientific oeuvre made him one of the internationally most esteemed Hungarian Romanists.
- DIGESTA SEU PANDECTAE tomus 1 liber 1-XV fragmenta selecta. DIGESTA NEBOLI
PANDEKTY svazek 1 kniha 1-XV vybrané čàsti, Michal Skřejpek (Ed.) :
Authors: Rena Van den Bergh; Philip Thomas
Abstract: Fundamina is privileged to announce the publication of the translation into Czech of the first fifteen books of Justinian's Digesta by Prof Dr Michal Skřejpek of the Charles University, Prague, who is also a member of our journal's Editorial Board.
- Some considerations on the expression "loco filiae" in Gaius' institutes
Authors: Carlos Felipe Amunategui Perello; Patricio-Ignacio Carvajal Ramirez
Abstract: This article studies the meaning of the expression in "loco filiae" that Gaius uses to describe the position of the wife that has undergone a conventio in manum. Its aim is to ascertain whether or not manus, potestas and mancipium were equivalent powers, in the time of Gaius, by identifying, in particular, institutions which reflect disparate regulation of each.
- Le Gout Des Jeunes Pousses : Atticus, Brutus, Octave
Authors: Yasmina Benferhat
Abstract: Youth in politics might be a default - a lack of experience justifying waiting for your turn - or an advantage, as a promise of renewal and energy. In ancient Rome youth was something more positive than one could expect: the Roman people, if not the Senate, was fond of young leaders like Scipio Nero, whilst Galba was despised for being too old. This paper aims at studying the case of two young men in the Late Republic - Brutus and Octavian - through their relationship with a much older man, Atticus. The first part focuses on Brutus, born approximately 85 BC and belonging to the ancient elite like Atticus, who was considered a promising young leader of the Optimates since his beginnings in 58 BC until his misfortune in 44-43 when he could not manage to apply the murder of Caesar to his own advantage. The second part concerns Octavius, the real young man, born in 63. He was nineteen years old when he became Caesar's heir, while Brutus was already forty. The vocabulary is revealing: Octavius is called puer by his opponents, but he is an adulescens for the Caesarians, and Brutus is described as an adulescens though already a iuvenis. Atticus, who always helped Brutus, had to change his way: a wedding between Attica and Agrippa, planned by Antony, resulted in him finally belonged to Octavian's party. Octavian, the new man who had won the war, needed a symbol of the old elite and of Republican Rome. Atticus had to save what could be saved.
- Natural law : Voet's criticism of De Groot
Authors: H.J. Erasmus
Abstract: Hugo de Groot (1583-1645) is internationally known as the father of international law and also celebrated for his seminal work on the law of nature. The principal work of Johannes Voet (1647-1713) is his Commentarius ad Pandectas in which he expounds the modern law (the jus hodiernum) in the light of the Pandects of Roman law. In the first title of his Commentary, Voet briefly sets out his views on the foundations of natural law. He rejects the views of De Groot on this score as unacceptable. The purpose of this note is to trace the exposure of De Groot and Voet to the subtleties of the esoteric theological debates in Reformed (Calvinist) circles in seventeenth century Holland, and to highlight the theological background to their differing views on the source of the law of nature.
- The origins of hate-crime laws
Authors: Kamban Naidoo
Abstract: Hate crimes were first recognised as a specific category of criminal conduct in the United States of America. Evidence of such recognition is supported by a number of state level and federal hate-crime laws that were enacted in the United States between the early 1980s and 1990s. There is a tendency in some American literature, however, to trace the recognition of hate crime as a specific category of criminal conduct to two specific historical time periods. The first historical period that is usually considered, is the nineteenth-century post-American Civil War period when federal civil-rights statutes were passed by the American Congress to protect vulnerable groups of people who were victimised because of their race and prior status as slaves. The second time period that is considered is the mid-twentieth century, post-Second World War era up to the period of the Civil-Rights Movement. Irrespective of the origins of hate crime as a category of criminal conduct, their recognition has spawned a new category of crime and criminal laws in the United States of America and internationally. Contemporary hate-crime laws recognise a wide spectrum of prejudices and biases. Despite the international trend, particularly in democratic Western nations towards the recognition of hate crimes and the enactment of hate-crime laws, the Republic of South Africa has yet to enact a hate-crime law.
- At the base of Rome's peculium economy
Authors: Morris Silver
Abstract: Why did Roman slaves have a peculium or purse? It has been suggested that the grant of a peculium was a clever arrangement, a trick actually, by means of which owners incentivised slaves to perform unsupervised labour. Upon this incentive base stands Rome's "peculium economy" in which diverse and far-flung business and other activities are performed by minimally supervised slaves. However, forcibly taken slaves (including born-slaves), the kind still taken for granted in the scholarly literature, would not be sufficiently incentivised by peculia. The "peculium economy" stands, however, because the slaves forming its base are slaves by contract/self-sellers. The peculium, the legal and other evidence suggests, is a contractual benefit desired by and typically made available to free individuals who volunteered for slavery. This is precisely how, for example, the "peculium" arose in the eighteenth century trade in "indentured servants" between England and North America. The paper explores this finding and develops its implications for Roman economic growth.
- Revisiting the historical context surrounding the development of the
Authors: G.P. Stevens; E.C. Lubaale
Abstract: The controversy surrounding the issue whether or not mental health professionals in South Africa should offer opinion testimony that touches upon the ultimate-issue has been ongoing and remains unsettled. This controversy has left the exact place of the ultimate-issue rule in balance hence causing uncertainty. This uncertainty has impacted negatively on the advancement of opinion testimony by mental health professionals. One notable area that has been affected is the one pertaining to child sexual-abuse cases. The authors trace the historical foundations surrounding the development of the ultimate-issue rule. It is demonstrated that the rule finds its basis in justice systems with jury trials, with the aim of the rule having been to ensure that experts do not usurp the role of the jury. Historically, juries were not schooled in law hence the need to screen the evidence they received ensuring that experts' opinions did not awe them to a point of them relinquishing their decision-making powers. In this context, the unsoundness of the rule in non-jury systems such as South Africa's (where decisions are made by judges schooled in law) is underscored. It is highlighted that the policy considerations surrounding the development of this rule are not applicable to South Africa. Recommendations are made for its express abolition by way of statutory guidelines.
- Of naval courts martial and prize claims : some legal consequences of
commodore Johnstone's secret mission to the Cape of Good Hope and the
"battle" of Saldanha Bay, 1781 (Part 2)
Authors: J.P. Van Niekerk
Abstract: Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. These matters are considered in two parts, of which the first appeared in (2015) 21(2) Fundamina 392-456.
- Van Dongen, EGD Contributory Negligence - A Historical and Comparative
Study, Brill, Leiden (Ed.) : book review
Authors: Paul J. Du Plessis
Abstract: This interesting study is concerned with one of those perennial problems of the civilian tradition, namely the rise of "contributory negligence" in cases of delict. Van Dongen traces the history of this notion from Roman to contemporary law. The book is divided into six chapters. Chapter 1 contains an introduction in which the main topic of study, the method adopted and the structure are all set out. Diachronic studies of an aspect of legal history are tricky and the method and scope sections are well worth reading. The author does a good job of limiting and justifying the choices made further on in the volume. It is particularly interesting to see the comments about Roman law and how one should not merely see it as the starting point in a long line of development.
- Kaius Tuori Lawyers and Savages. Ancient History and Legal Realism in the
Making of Legal Anthropology, Routledge (Ed.) : book review
Authors: Philip Thomas
Abstract: Tuori has the good fortune to have had the opportunity to study history, law and anthropology, which has equipped him to dive into the nouvelle vague of interdisciplinary research. In consequence, his latest book analyses the rise and fall of legal primitivism following the work of pioneers in a wide variety of disciplines. Focusing on the trilogy of sex, greed and violence, the narrative takes us from the Americas to Australia, Greenland, Africa and further. Greed is represented by the paradigmatic variations played on the theme of the development of ownership of land and contract; sex stands for the Dichtung und Wahrheit spun around matriarchy, promiscuity, polygamy and the "civilised" monogamy, while violence hovers in vendetta, feud, honour killings and blood revenge. Within the tales about these themes the reader meets old friends like the brothers Grimm, von Savigny, von Jhering, Fustel de Coulanges, Maine and Schiller, but is also introduced to a sparkling variety of new authorities such as Martius, Lonröt, Bachofen, Malinowski, Boas, Llewellynand Gluchkman to name but a few.
- In memory : Prof H.J. Erasmaus
10 January 1935 - 15 June 2016 : obituary
Authors: Ben Griesel
Abstract: It is with great sadness that we heard of the passing away of Hendrik Jacobus Erasmus on 15 June 2016, an esteemed member of the Editorial Board of Fundamina and a frequent contributor of legal historical contributions to this legal journal. Hennie Erasmus was a man of many talents. He had a formidable reputation as academic, as author, as judge, and as historian. He was born on 10 January 1935 in Ladysmith, Natal. After matriculation at the Kroonstad High School in 1952, he obtained the degrees BA and MA (both cum laude) from the University of the Free State, followed by an LLB from the University of South Africa and a DLitt et Phil (cum laude) from Leiden.
- Recherches sur la notion de patientia dans la vie politique a rome (de
cesar a hadrien) : article
Authors: Yasmina Benferhat
Abstract: This paper is an attempt to underline the importance of patientia in the political life of ancient Rome, especially during the late Republic and the first century BC. Although the Christian notion of patientia has been well studied, the political quality it could represent is still a new field. The main problem is first to decide what kind of quality it was : in the late Republic, it was the physical endurance a general would need, which explains why Catilina based his propaganda on patientia, but it could also be a moral virtue. Patientia was a plebeian virtue against the pride and cruelty of the Patricians : this contrast was reaffirmed in the Civil War, when Caesar applied it against the Optimates who were acting arrogantly. Under the Julio-Claudians, patientia was a virtue with very much the same meaning as constantia, but it never attained the same importance because it was sometimes connected with servility. Patientia, which was a positive notion in the late Republic, whether physical or moral, came to be employed in a negative context by Tacitus. This study does not pretend to be exhaustive - it would be necessary, for instance, to consider the Stoic influence - but is merely a first step towards a better understanding of patientia before the Christian era.
- Some remarks on laesio enormis and proportionality in Roman-Dutch law and
calvinistic commercial ethics
Authors: Jan Hallebeek
Abstract: This contribution contains a continuation of an earlier article dealing with the concepts of iustum pretium and proportionality in Roman law and the ius commune. Its findings for Roman-Dutch law, however, appear to be incompatible with the conclusions expounded by James Whitman in an article on the role of Roman law in early modern commerce. Whitman maintained that the traditional Christian rule on fair pricing was no longer upheld by the jurists and clergymen of the Dutch Republic. By appealing to Roman law, the Dutch would have abandoned the longstanding just-price principles and would have considered active fraud by malicious salesmen to be permissible. This would appear from vernacular books on Roman-Dutch law, which, as a consequence, exuded an atmosphere of immorality. Moreover, the new commercial attitude was said to be supported by a number of moral handbooks written by Calvinistic clergymen. However, when reinvestigating the sources quoted from the wider perspective of the civilian tradition, other "Old Authorities" of Roman-Dutch law and the true nature and purpose of the Further Reformation, there is no choice other than to query Whitman's findings.
- Stellung des griechischen rechts in der antiken rechtsgechichte
Authors: Joachim Hengstl
Abstract: The ancient world saw the rise and fall of many cultures, with accompanying cultural exchanges and reciprocal influences. It seems that such reciprocal influences and exchanges extended to the law as well, and affected legal evolution. Old legal institutions were preserved for future generations but were influenced by newer cultures. This concept is not new, but Barta has revived it. He has embarked on a publication comprising four volumes, of which volumes 1, 2 (pt1/2) and 3 (pt 1) have appeared. The author has set out to prove that the influence of Greek law on Roman law was greater than has been acknowledged up until now, that Greek law was likewise influenced by the Old Orient, and that Roman law also influenced later legal systems. The one concern of this article is to show that Barta's theory is invalid. The other concern is to criticise Barta's approach. He does not cite the extensive literature on which he relies, but quotes it. He fills page after page with texts by other authors but does not discuss nor analyse their content. Thus the reader is provided with a wide range of legal literature of the past, but not with any critical analysis of it. Newer writing is often neglected. Barta himself has interesting ideas, but it is difficult to detect them, hidden as they are amongst the cited literature. This approach is followed in all volumes but is scientifically unacceptable and merits the strongest criticism.
- Remarks on the methodology of private law studies : the use of latin
maxims as exeplified by nemo plus iuris
Authors: Franciszek Longchamps De Berier
Abstract: Lawyers use words with great care and, particularly in public discourse, often like to use Latin dicta. They do so not only to make their arguments sound more sophisticated, but also to support their theses not merely with elegantly worded, classical maxims, but also with well tested, established concepts based on the experience of people who lived in ancient Rome, a consummately practical society, very well versed in the practice of law. A legal dictum formulated in Latin is referred to as a rule, maxim, definition, precept, or principle. It is impossible to differentiate these terms clearly, although this has been done for instance in the terminology used in contracts in continental private law. How can contemporary lawyers best use Latin maxims and sentences? This is explored by using the example of nemo plus iuris ad alium transferre potest, quam ipse haberet. The six steps are as follows: use maxims competently; be aware of the context of your quotation; do not allow yourself to be taken by surprise; make sure the maxim is well established in the law; do not neglect related and supporting maxims; and take the local context into account.