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- Volume 14, Issue 2, 2008
Fundamina : A Journal of Legal History - Volume 14, Issue 2, 2008
Volumes & issues
Volume 14, Issue 2, 2008
The constitutional imperative and harmonisation in a multicultural society : a South African perspective on the development of indigenous lawAuthor Joan ChurchSource: Fundamina : A Journal of Legal History 14, pp 1 –13 (2008)More Less
It is trite that the South African legal system is classified as ""mixed"". However, until recently, the notion of this ""mix"" has been Eurocentric, writers comparing the system to a ""three-tiered cake"" with Roman, Dutch and English law being its layers. This has been so despite the fact that indigenous or African customary law has played and still plays an intrinsic role in the lives of most South Africans and that, for more than two centuries and, for whatever reason, its application was sanctioned by colonial and national governments. The main reason for its non-recognition as part of the South African mixed legal system is that in the colonial and apartheid climate, although indigenous law was recognised, it was recognised only as a special and personal law that operated outside of, but only as determined by, the general law. In the past its legal history, both external and internal, was dealt with in a cursory fashion in South African legal literature. This has changed and it has been acknowledged as part of the South African legal system and referred to as the third of ""three graces of South African law"".
Author Shannon HoctorSource: Fundamina : A Journal of Legal History 14, pp 14 –23 (2008)More Less
Dolus eventualis is manifestly the most important form of intention in practice in South African criminal law. It has received by far the most attention of all the forms of intention and is ""well-established, commonly invoked and much analysed"". Since the South African courts embrace the psychological concept of culpability, in terms of which the question whether an accused has acted intentionally depends solely on his or her subjective state of mind, dolus eventualis forms a cornerstone of criminal liability.
Author J.H.A. LokinSource: Fundamina : A Journal of Legal History 14, pp 24 –36 (2008)More Less
In the history of European, and accordingly South-African private law, the emperor Justinian is to be considered as the first and perhaps the greatest harmoniser of the law. He purified the rudis atque indigesta moles, the mass of raw and indigested texts, put these texts in some sort of order and harmonised them. This he did in a remarkable way.
Neither Africans nor Europeans : the Jewish Lybian community between integration, separation and expulsionAuthor Francesco LucreziSource: Fundamina : A Journal of Legal History 14, pp 37 –49 (2008)More Less
The Italian colonial adventure on Libyan soil started in 1911 and produced, directly or indirectly, a very deep and controversial metamorphosis of the cultural identity as well as the civil and legal position of the local Jewish community. In spite of the fact that it was a small community, it was proud of the fact that it had settled and taken root on North African soil more than a thousand years ago.
Author Caroline NicholsonSource: Fundamina : A Journal of Legal History 14, pp 50 –65 (2008)More Less
This paper is premised upon acceptance of the view that some form of harmonisation of laws in Africa is a desirable objective and that comparative legal research is a tool that might effectively be applied in order to further the objective of harmonisation. That said, the time has come for comparatists in Africa to think afresh on the issues of globalisation and the need for harmonisation of laws in Africa, with a view to promoting peace, stability and scope for increased development in the region through greater regional economic co-operation.
Author Stephen Allister PeteSource: Fundamina : A Journal of Legal History 14, pp 66 –83 (2008)More Less
Author David PugsleySource: Fundamina : A Journal of Legal History 14, pp 84 –94 (2008)More Less
This article shows that the standard accounts of the life of Chief Justice Hodges in England before he arrived in the Cape in 1858 are inaccurate and unsatisfactory. It sets out the correct story, including an interesting but forgotten incident in Cornwall in 1839; it descriptionbes circuit life in mid-nineteenth century England, including the little known institution of the revising barrister; and it illustrates the difficulties and dangers of basing biographies on obituaries, particularly when the information in the obituary has been supplied at an earlier stage by the deceased himself, so that he has in effect written his own obituary.
The historical development of the legal system of Ghana : an example of the coexistence of two systems of lawAuthor Kofi QuashigahSource: Fundamina : A Journal of Legal History 14, pp 95 –114 (2008)More Less
The fact of globalisation has brought with it the issue of rationalisation of legal systems. The opportunities for inter-connectedness of peoples of different legal systems have increased, necessitating a conscious rationalisation of the legislation of various countries. The process of rationalisation could follow a number of approaches, such as transplantation, legal harmonisation and legal unification. Legal transplantation has been descriptionbed as consisting of the ""introduction, in national legal systems, of statutes and principles belonging to other systems ... "". In the case of legal harmonisation, ""nations agree on a set of objectives and targets and let each nation amend their internal law to fulfil the chosen objectives"", while by legal unification ""nations agree to replace national rules and adopt a unified set of rules chosen at the interstate level"". These various approaches will achieve varying degrees of rationalisation, but in the final analysis they will all represent an expressed intention of people of different legal systems to benefit from the advantages of co-existence and integration.
Author E.C. SchlemmerSource: Fundamina : A Journal of Legal History 14, pp 115 –132 (2008)More Less
Over the years many African countries reformed their financial systems and their economies in order to form part of the international markets that should benefit their economies, but according to Fischer et al ""[a]n important task facing the authorities in these countries is to reduce the perceived risk of policy reversals by providing credible commitments and increasing the cost of reneging on these commitments"". One of the ways that African countries can address this, is to show its political commitment to change. This can be done by joining regional trading arrangements and organisations, establishing independent central banks, ensuring capital account convertibility and promulgating internationally acceptable investment charters. By doing this African countries are introducing measures that can be used to counter and remove or at least reduce some of these risks. This will enhance the prospects of prospective investors in their economies and improve the living conditions of their own inhabitants.
Harmonising the law in a multilingual environment with different legal systems : lessons to be drawn from the legal history of South AfricaAuthor Ph J. ThomasSource: Fundamina : A Journal of Legal History 14, pp 133 –154 (2008)More Less
This article addresses the legal history of the country from the context of the African Union. The purpose is to examine the possibility of harmonisation of certain segments of the legal system which are essential for a common economic market within this Union. South Africa has a so-called mixed jurisdiction, which is explained by the colonial history and the change from Dutch to British rule.
Author Gardiol J. Van NiekerkSource: Fundamina : A Journal of Legal History 14, pp 155 –167 (2008)More Less
The need for the harmonisation of laws to attain economic, political and social integration in the African Union is beyond dispute. Since legal pluralism prevails throughout the continent, it is only logical to consider whether the harmonisation of the different indigenous laws applicable in the region is a necessary prerequisite for such integration. But it is also necessary to determine whether harmonisation of indigenous laws is at all feasible.