Introduction
• Law is not a modern concept; it has been in existence since the earliest of
times.
• Even ancient communities had rules to establish and regulate order and
resolve conflicts.
• Such rules were generally based on custom or religion and focused on the
community in which they operated.
• Over the years, these rules developed into legal systems.
• A legal system is usually one of the cultural products of the community and is
the product of its history.
• The same factors (geographical, political, religious etc.) that have contributed to
the formation of the community have also contributed to the formation of the legal
system concerned.
• Various legal systems are related by shared objectives:
o (1) Securing order.
o (2) Resolving conflict.
o (3) Ensuring universal harmony and community wellness.
• Despite these common goals, each system developed according to the social
and political ideas which prevailed at the time.
• For example, in SA, apartheid ideology profoundly affected the legal system.
• SA lawyers need not to only know the law, but to appreciate where the law
comes from.
• The pure historical approach needs to be balanced with a functional
approach, where the emphasis is on molding the law to combat social problems.
,• The knowledge of historical development helps us to understand why a legal rule
exists and what its content is:
o (1) It helps us explain the present character of law.
o (2) Facilitates necessary change.
o (3) Links us to other countries.
• The roots of modern SA law include a number of systems:
o Western legal tradition.
o Sources such as customs, legislation, and case law.
• It’s important to understand the roots of a rule, as the courts may use these
sources:
o For reasons of citation as authority.
o To support an approach.
o To indicate the need for legal development.
• External legal history
o Includes all the different factors that may have had an influence on the
development of law in a particular period, including social, economic,
political, religious, and cultural circumstances and associated
philosophical ideas.
• Internal legal history
o Refers to the development of the material/substantive law, which may
be defined as a set of rules that defines rights and duties.
o Development of substantive legal norms.
• Legal historical method
o Exploration of the development of material legal norms over the ages, in
the context of socio-economic, philosophical, religious and political factors.
o The importance of external legal history is mainly that it sheds light on the
internal history of law.
, • SA law from a historical perspective
o Roman law is found in law of persons, law of property and law relating to
specific contracts.
o Germanic law is found in certain aspects of law in marriage.
o English law is evident in law of evidence, administrative law, commercial
law, and law of procedure.
o Some areas of our law are mixed:
▪ In law of succession, the idea of will from Roman law, which
became part of Germanic law through canon law.
▪ Intestate succession rules are Germanic in origin.
• As a result of the fact that our legal system is made up of elements from different
legal systems, it was possible to select good legal principles.
• Private law is still fundamentally based in Roman-Dutch law and is modernized
by English law.
• The Roman-Dutch law was adapted to typical SA circumstances such as:
o Lack of water.
o Presence of an abundance of metals and minerals.
o Plant and animal life.
• The SA legal system is uncodified.
• Advantages of codification
o (1) Better systemization of the law.
o (2) Easier to find.
• Disadvantages of codification
o (1) It’s not possible to anticipate all conflicts which may occur in the future,
so appropriate solutions in these circumstances are not provided for.
o (2) This is especially because the judge in a codified system is bound by
code.
• Law is not a modern concept; it has been in existence since the earliest of
times.
• Even ancient communities had rules to establish and regulate order and
resolve conflicts.
• Such rules were generally based on custom or religion and focused on the
community in which they operated.
• Over the years, these rules developed into legal systems.
• A legal system is usually one of the cultural products of the community and is
the product of its history.
• The same factors (geographical, political, religious etc.) that have contributed to
the formation of the community have also contributed to the formation of the legal
system concerned.
• Various legal systems are related by shared objectives:
o (1) Securing order.
o (2) Resolving conflict.
o (3) Ensuring universal harmony and community wellness.
• Despite these common goals, each system developed according to the social
and political ideas which prevailed at the time.
• For example, in SA, apartheid ideology profoundly affected the legal system.
• SA lawyers need not to only know the law, but to appreciate where the law
comes from.
• The pure historical approach needs to be balanced with a functional
approach, where the emphasis is on molding the law to combat social problems.
,• The knowledge of historical development helps us to understand why a legal rule
exists and what its content is:
o (1) It helps us explain the present character of law.
o (2) Facilitates necessary change.
o (3) Links us to other countries.
• The roots of modern SA law include a number of systems:
o Western legal tradition.
o Sources such as customs, legislation, and case law.
• It’s important to understand the roots of a rule, as the courts may use these
sources:
o For reasons of citation as authority.
o To support an approach.
o To indicate the need for legal development.
• External legal history
o Includes all the different factors that may have had an influence on the
development of law in a particular period, including social, economic,
political, religious, and cultural circumstances and associated
philosophical ideas.
• Internal legal history
o Refers to the development of the material/substantive law, which may
be defined as a set of rules that defines rights and duties.
o Development of substantive legal norms.
• Legal historical method
o Exploration of the development of material legal norms over the ages, in
the context of socio-economic, philosophical, religious and political factors.
o The importance of external legal history is mainly that it sheds light on the
internal history of law.
, • SA law from a historical perspective
o Roman law is found in law of persons, law of property and law relating to
specific contracts.
o Germanic law is found in certain aspects of law in marriage.
o English law is evident in law of evidence, administrative law, commercial
law, and law of procedure.
o Some areas of our law are mixed:
▪ In law of succession, the idea of will from Roman law, which
became part of Germanic law through canon law.
▪ Intestate succession rules are Germanic in origin.
• As a result of the fact that our legal system is made up of elements from different
legal systems, it was possible to select good legal principles.
• Private law is still fundamentally based in Roman-Dutch law and is modernized
by English law.
• The Roman-Dutch law was adapted to typical SA circumstances such as:
o Lack of water.
o Presence of an abundance of metals and minerals.
o Plant and animal life.
• The SA legal system is uncodified.
• Advantages of codification
o (1) Better systemization of the law.
o (2) Easier to find.
• Disadvantages of codification
o (1) It’s not possible to anticipate all conflicts which may occur in the future,
so appropriate solutions in these circumstances are not provided for.
o (2) This is especially because the judge in a codified system is bound by
code.
