Introduction to Law 171: Notes
Term 3: Legal History
Table of Contents
TOPIC 1: WHY HISTORY? ......................................................................................................................................................................... 1
1) WHY DO HISTORY? ......................................................................................................................................................................................................... 1
TOPIC 2: CONTINENTAL LEGAL HISTORY ....................................................................................................................................... 3
2.1) EARLY HISTORY ........................................................................................................................................................................................................... 3
a. Early History: Roman Law ........................................................................................................................................................................................ 3
b. Germanic Tribes and Legal Development ...................................................................................................................................................... 9
c. The High to Late Middle Ages (1000-1500) .................................................................................................................................................11
d. Canon Law ......................................................................................................................................................................................................................13
2.2) THE HISTORICAL FUNCTIONS OF THE LAW ......................................................................................................................................................14
TOPIC 3: THE DEVELOPMENT OF SOUTH AFRICAN LAW...................................................................................................... 18
3.1) THE DEVELOPMENT OF SOUTH AFRICAN LAW ...............................................................................................................................................18
3.2) THE DISTINCTIVE NATURE OF SOUTH AFRICAN LAW TODAY ....................................................................................................................23
TOPIC 1: WHY HISTORY?
1) Why do History?
Prescribed material:
v Stearns PN: “Why study History” (1998)
v Cockrell A: “Studying Legal History in South Africa: The Lesson of Lot’s Wife”
After completion of this section you must:
• understand the relevance of history;
• understand how history can shape and change perceptions about the past, present and future;
• understand the nature and the importance of legal history as a subject, especially in the South
African context;
• understand the context in which this module is to be taught;
• understand the core skills that underlie studying legal history;
Introduction:
Why history?
• Past mistakes & success influence current society
Why legal history?
• Influences the current character of our law, understand how the current legal system came about &
why it is structured like it is.
Why study history?
• “History should be studied because it is essential to individuals and to society, and because it
harbours beauty”
• Definitions of history’s utilities: 2 fundamental facts namely:
o 1. History helps with understanding people and societies.
o 2. History helps with understanding change & how societies came to be
, • History: Understand change & creation of societies we live in: “the past caused the present, and so
the future”.
• Studying history: grasping of how things change, comprehension of factors that cause change and
understand how elements of an institution (or a society) persist despite change.
• Further reasoning;
o Important in our own lives
o History contributes to moral understanding
o History provides identity
o Studying history is essential for good citizenship
o It explains the present character of law
o Facilitates necessary change
o Legal history: living law à unmodified legal system
o Connection with other countries
• Skills;
o Ability to assess evidence
o Ability to assess conflicting interpretations
o Experience in assessing past examples of change
• What type of history?
o External history;
§ Historical facts and events of legal interest
§ Historical method: South African law depends on the common law developed during
the course of history
South African common law:
• Common law of all people
• Basis: Roman-Dutch Law
• Term: RDL – ambiguous
• Narrow approach: 17th & 18th century RDL of the province of Holland
• According to authors such as Van der Vyfer & Van Zyl; confirmed by Appeal Court in Bank of Lisbon
v De Ornelas
• Law common to all people: European ius commune – law applicable to that part
• Broad approach: refer to the law of the whole of the Republic of the Netherlands
• More correct approach, preferred by SA legal historians =
o Often shared approach with Western European countries
Common law: SA context, one of multiple sources:
• SA context: common law contained in & amended in case law, legislation + customs
• S39(2) Constitution
o “when interpreting any legislation, & when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport & objects of the BOR.”
• Rei vindicatio = common law remedy, seen in subjective rights
English “common law”:
• Law developed by English courts, casuistically
• Wasn’t influenced by RDL but rather by ad hoc basis (not uniform, look at situation and apply)
• SA common law: influenced by English common law
• SA law: related to “civil law” legal tradition – distinction between public law and private law
• English common law is the basis of Anglo-American law (civil law)
• Traces of socialist law during Apartheid.
Cockrell A: “Studying Legal History in SA: the lesson of Lot’s wife”
• Why should SA lawyers be concerned about legal history
• Biblical analogy: Lots wife
• Ex Parte De Winnaar 1959 (1) SA 837 D-E
• “The original sources of RDL are important, but exclusive preoccupation with them is like trying to
return an oak to its acorn. It is looking ever backwards. Lot’s wife looked back. Our national
jurisprudence moves forward where necessary, laying aside its swaddling clothes.”
Historical function of law
, • Law should be studied in context
• Rules are necessary to secure order and resolve conflict
• Roots of modern South African law = Roman law, Roman-Dutch law, African customary law and
English law, as well as Religious-based systems such as Islamic, Hindu and Jewish legal systems
• Legislation and judicial precedent major impact on development of South African common law
• S39(2) Interpretation clause is relevant when considering the many sources of law.
External legal history, internal legal history and legal-historical frameworks:
• External legal history – includes all the factors that may have had an influence on the development
of law in a particular period
• Eg. Social, economic, political, religious and cultural circumstances and philosophical ideas
• Internal legal history: development of material or substantive law
o Defines rights and duties
• Legal-historical method:
o Exploration of the development of material legal norms over the ages (internal legal hist.) in
the context of socio-economic, philosophical, religious and political factors (external legal
hist.
TOPIC 2: CONTINENTAL LEGAL HISTORY
2.1) Early History
a. Early History: Roman Law
i. Ancient Law
ii. Pre-Classical Law
iii. Classical Law
iv. Post-Classical Law
v. Justinian Law
After completion of this section you must:
• be able to identify and date the different periods in early Roman constitutional history;
• know what was characteristic of each period;
• know the most important constitutional elements of each period;
• know what were the most important sources of Roman law and be able to write short notes on each
of them;
• understand the various influences on the development of Roman Law, and the context within which
such occurred (for example: The 12 Tables; the role of the Jurists; Praetors; various
Emperors/rulers etc.)
• understand why Roman law went into a period of decline but nevertheless remained "alive";
• be able to explain the nature and the importance of the Justinian codification;
i. Ancient Law 753 BCE – 250 BCE
Background:
• Rome was established by Romulus of Alba Longa in 753 BCE
o Rome was originally rule by a King/Rex
o The first 4 kings = Roman
• Rome – a republic;
o Rome became a republic in 509 BCE
o It was ruled by a Senatus which was a council of elder statesmen.
o Executive power in the hands of the Consules (always had to be two)
o The comita centuria – assembly of higher class or patricians – also held some power
o The republic was characterised by class struggle between the patricians and the plebeians
(the lower class)
o Eventually the plebeians’ assembly also acquired legislative powers
o Plebeians acquired a codification of the law and the appointment of tribunes who had to
attend to their interests
• In terms of power;
Term 3: Legal History
Table of Contents
TOPIC 1: WHY HISTORY? ......................................................................................................................................................................... 1
1) WHY DO HISTORY? ......................................................................................................................................................................................................... 1
TOPIC 2: CONTINENTAL LEGAL HISTORY ....................................................................................................................................... 3
2.1) EARLY HISTORY ........................................................................................................................................................................................................... 3
a. Early History: Roman Law ........................................................................................................................................................................................ 3
b. Germanic Tribes and Legal Development ...................................................................................................................................................... 9
c. The High to Late Middle Ages (1000-1500) .................................................................................................................................................11
d. Canon Law ......................................................................................................................................................................................................................13
2.2) THE HISTORICAL FUNCTIONS OF THE LAW ......................................................................................................................................................14
TOPIC 3: THE DEVELOPMENT OF SOUTH AFRICAN LAW...................................................................................................... 18
3.1) THE DEVELOPMENT OF SOUTH AFRICAN LAW ...............................................................................................................................................18
3.2) THE DISTINCTIVE NATURE OF SOUTH AFRICAN LAW TODAY ....................................................................................................................23
TOPIC 1: WHY HISTORY?
1) Why do History?
Prescribed material:
v Stearns PN: “Why study History” (1998)
v Cockrell A: “Studying Legal History in South Africa: The Lesson of Lot’s Wife”
After completion of this section you must:
• understand the relevance of history;
• understand how history can shape and change perceptions about the past, present and future;
• understand the nature and the importance of legal history as a subject, especially in the South
African context;
• understand the context in which this module is to be taught;
• understand the core skills that underlie studying legal history;
Introduction:
Why history?
• Past mistakes & success influence current society
Why legal history?
• Influences the current character of our law, understand how the current legal system came about &
why it is structured like it is.
Why study history?
• “History should be studied because it is essential to individuals and to society, and because it
harbours beauty”
• Definitions of history’s utilities: 2 fundamental facts namely:
o 1. History helps with understanding people and societies.
o 2. History helps with understanding change & how societies came to be
, • History: Understand change & creation of societies we live in: “the past caused the present, and so
the future”.
• Studying history: grasping of how things change, comprehension of factors that cause change and
understand how elements of an institution (or a society) persist despite change.
• Further reasoning;
o Important in our own lives
o History contributes to moral understanding
o History provides identity
o Studying history is essential for good citizenship
o It explains the present character of law
o Facilitates necessary change
o Legal history: living law à unmodified legal system
o Connection with other countries
• Skills;
o Ability to assess evidence
o Ability to assess conflicting interpretations
o Experience in assessing past examples of change
• What type of history?
o External history;
§ Historical facts and events of legal interest
§ Historical method: South African law depends on the common law developed during
the course of history
South African common law:
• Common law of all people
• Basis: Roman-Dutch Law
• Term: RDL – ambiguous
• Narrow approach: 17th & 18th century RDL of the province of Holland
• According to authors such as Van der Vyfer & Van Zyl; confirmed by Appeal Court in Bank of Lisbon
v De Ornelas
• Law common to all people: European ius commune – law applicable to that part
• Broad approach: refer to the law of the whole of the Republic of the Netherlands
• More correct approach, preferred by SA legal historians =
o Often shared approach with Western European countries
Common law: SA context, one of multiple sources:
• SA context: common law contained in & amended in case law, legislation + customs
• S39(2) Constitution
o “when interpreting any legislation, & when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport & objects of the BOR.”
• Rei vindicatio = common law remedy, seen in subjective rights
English “common law”:
• Law developed by English courts, casuistically
• Wasn’t influenced by RDL but rather by ad hoc basis (not uniform, look at situation and apply)
• SA common law: influenced by English common law
• SA law: related to “civil law” legal tradition – distinction between public law and private law
• English common law is the basis of Anglo-American law (civil law)
• Traces of socialist law during Apartheid.
Cockrell A: “Studying Legal History in SA: the lesson of Lot’s wife”
• Why should SA lawyers be concerned about legal history
• Biblical analogy: Lots wife
• Ex Parte De Winnaar 1959 (1) SA 837 D-E
• “The original sources of RDL are important, but exclusive preoccupation with them is like trying to
return an oak to its acorn. It is looking ever backwards. Lot’s wife looked back. Our national
jurisprudence moves forward where necessary, laying aside its swaddling clothes.”
Historical function of law
, • Law should be studied in context
• Rules are necessary to secure order and resolve conflict
• Roots of modern South African law = Roman law, Roman-Dutch law, African customary law and
English law, as well as Religious-based systems such as Islamic, Hindu and Jewish legal systems
• Legislation and judicial precedent major impact on development of South African common law
• S39(2) Interpretation clause is relevant when considering the many sources of law.
External legal history, internal legal history and legal-historical frameworks:
• External legal history – includes all the factors that may have had an influence on the development
of law in a particular period
• Eg. Social, economic, political, religious and cultural circumstances and philosophical ideas
• Internal legal history: development of material or substantive law
o Defines rights and duties
• Legal-historical method:
o Exploration of the development of material legal norms over the ages (internal legal hist.) in
the context of socio-economic, philosophical, religious and political factors (external legal
hist.
TOPIC 2: CONTINENTAL LEGAL HISTORY
2.1) Early History
a. Early History: Roman Law
i. Ancient Law
ii. Pre-Classical Law
iii. Classical Law
iv. Post-Classical Law
v. Justinian Law
After completion of this section you must:
• be able to identify and date the different periods in early Roman constitutional history;
• know what was characteristic of each period;
• know the most important constitutional elements of each period;
• know what were the most important sources of Roman law and be able to write short notes on each
of them;
• understand the various influences on the development of Roman Law, and the context within which
such occurred (for example: The 12 Tables; the role of the Jurists; Praetors; various
Emperors/rulers etc.)
• understand why Roman law went into a period of decline but nevertheless remained "alive";
• be able to explain the nature and the importance of the Justinian codification;
i. Ancient Law 753 BCE – 250 BCE
Background:
• Rome was established by Romulus of Alba Longa in 753 BCE
o Rome was originally rule by a King/Rex
o The first 4 kings = Roman
• Rome – a republic;
o Rome became a republic in 509 BCE
o It was ruled by a Senatus which was a council of elder statesmen.
o Executive power in the hands of the Consules (always had to be two)
o The comita centuria – assembly of higher class or patricians – also held some power
o The republic was characterised by class struggle between the patricians and the plebeians
(the lower class)
o Eventually the plebeians’ assembly also acquired legislative powers
o Plebeians acquired a codification of the law and the appointment of tribunes who had to
attend to their interests
• In terms of power;
