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- Volume 16, Issue 2, 2010
Fundamina : A Journal of Legal History - Volume 16, Issue 2, 2010
Volumes & issues
Volume 16, Issue 2, 2010
Author Juanitta CalitzSource: Fundamina : A Journal of Legal History 16, pp 1 –27 (2010)More Less
With the aim of contextualising the evolution of state regulation in the South African insolvency law, this article briefly discusses the history of insolvency law in general, and considers the historical development of state regulation in Roman, Roman-Dutch and English law. Although it could be argued that the establishment of the Desolate Boedelkamer and subsequent founding of the office of the Master of the Supreme Court could be classified as the most significant events in the history of this field of law, at the time, adequate attention had not been paid to the process of policy development nor to the implications of the merger of the two institutions. Hopefully, as the South African law- and policymakers are at present contemplating the introduction of significant new insolvency legislation, the importance of a policy-driven approach based on lessons learned and insights gained from research conducted into the historical context surrounding insolvency law would be recognised.
Author H.J. ErasmusSource: Fundamina : A Journal of Legal History 16, pp 28 –51 (2010)More Less
In 1825 a group of Griqua lead by Adam Kok II settled at Philippolis at the invitation of Dr John Philip of the London Missionary Society. Fifteen years after, in 1840, Adam Kok III claimed a large part of the Southern Free State as Griqua territory. In the Anglo-Griqua treaty of 1843 negotiated by Sir George Napier and Adam Kok III, and that of 1846 negotiated by Sir Peregrine Maitland and Adam Kok III, Griqua claims to land to the north of the Orange River were recognised. During the time of British Sovereignty in the Free State, from 1848 to 1854, the Griquas were dispossessed of much of their land, and circumstances were created which facilitated the loss of the land of which they had not been dispossessed. The result was that twenty years after Adam Kok III claimed the land, the Griquas had lost it all and in 1861 they embarked on their historic trek to Nomansland (Griqualand East). In this article, answers are sought to the question as to what the legal means were by which the Griqua people were deprived, during a period of British administration, of land which the British had but a few years before in formal treaties recognised unreservedly as being theirs.
Author L. HawthorneSource: Fundamina : A Journal of Legal History 16, pp 52 –63 (2010)More Less
This article traces the historical development of the nature of the claim for holding over in South African law and analyses the effect of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 on such a claim. Case law shows that although the courts have recognised the possibility of exemplary damages, such an order has never been granted. The courts have been more inclined to grant orders for rent, damages or both, basing the claim on breach of contract. Nevertheless, there has also been support for a claim for unjust enrichment and a claim for damages based on delict. It is in the latter area that the Constitution and recent legislation play a role and appear to have a limiting effect.
Author Tamas NotariSource: Fundamina : A Journal of Legal History 16, pp 64 –85 (2010)More Less
The oration in defence of Marcus Claudius Marcellus was delivered in September 46 at a session of the senate. The title of Cicero's work (which suggests a statement of the defence before a court of justice), however, does not reflect its real genre or rhetoric since it was produced as a political oratio. Although the Pro Marcello, one of the important works of the late phase of Cicero's oeuvre and the first item of the so-called orationes Caesarianae, was seemingly presented to senate as a defence, it was, in fact, a political oration. In this article, the historical background of the speech is outlined and its place determined in Cicero's philosophy of the state. The role of the political virtue sapientia, attributed to the dictator in the oration, is discussed with reference to the warnings and wishes formulated in political life by Cicero with regard to Caesar. And, finally, the image of Caesar as outlined in the oratio is compared with the reality of the politics of the period, pointing out the impact on public life in Rome of a ruler with no virtues as formulated by Cicero at this point.
Apartheid in the food : an overview of the diverse social meanings attached to food and its consumption within South African prisons during the colonial and apartheid periods (part one)Source: Fundamina : A Journal of Legal History 16, pp 86 –97 (2010)More Less
Eating is an activity which is suffused with social meaning, and this is particularly so when it comes to eating in prison. The focus of this article is on the diverse social meanings attached to food and its consumption within South African prisons during the colonial and apartheid periods. On the one hand, food and its consumption was tied up with the assertion of power, dominance and control on the part of the prison authorities. On the other hand, it was linked to resistance and the assertion of solidarity and identity on the part of the inmates. The twisted logic of racial segregation and apartheid may be seen as having permeated the food which inmates were allowed to consume within the South African prisons during the colonial and apartheid periods. The manner in which food played its part in the struggle for liberation within South Africa's apartheid penal system, by means of hunger strikes and other food-related activities, has a flavour all of its own.
Author W.G. SchulzeSource: Fundamina : A Journal of Legal History 16, pp 98 –120 (2010)More Less
The research contained in the present article aims to shed some light on the life and legal career of Sir Jacobus Petrus de Wet. He was South Africa's first judicial export. Over the years, many aspects of the legal career of JP de Wet had become shrouded in the mist of history. The present article is an attempt to answer at least some of the more obvious questions which come to mind when studying the few cursory biographical notes which have been published about his life and legal career. The following are addressed: How did it happen that he was appointed out of the blue and over the head of Sir JG Kotzé, as the Chief Justice of the Transvaal in May 1880? Why was he offered the Chief Justiceship of Ceylon in 1882? And why did he disappear from the judicial scene after he had left Ceylon at the relatively young age of forty four?
"A curious incident involving a dog" : the legal-historical significance of dog images in Medieval and Renaissance medical illustrationsAuthor Melodie SlabbertSource: Fundamina : A Journal of Legal History 16, pp 121 –146 (2010)More Less
This article explores the curious presence of dogs in medieval and Renaissance medical illustrations by considering the practice of medicine, the role of medical illustrations, the prosecution of animals, as well as the general symbolism of dogs in art during these times. Apart from early translated medieval medical texts containing mainly rudimentary medical images, other images accompanying medical texts seldom served an instructional medical purpose and were often nothing more than a marginal gloss or conveyed a metaphorical, religious or moral message. The article reveals a relationship between dogs and healing, as well as between dogs and justice. Dogs also appeared as symbols of death and the afterlife. Their association with death and the afterlife, for example, may have compelled illustrators to include them in medical illustrations during times when life was fragile and recovery something that depended on external forces.
Rudolf von Jhering (1818-1892) - lewe en werk van 'n groot Duitse juris en sy invloed ook op die Suid-Afrikaanse regSource: Fundamina : A Journal of Legal History 16, pp 147 –185 (2010)More Less
Von Jhering's work bears the overall mark of a critical fundamental legal thinker who excelled in clearly defining the formulation of fundamental principles of the law and consequential reasoning along those lines. The reasoned balancing of the opposing interests of all concerned is at the centre of legal reasoning. Without hesitation he dismissed accepted doctrine when it could not stand up to the test of the fundamental laws of legal logic. He was, however, the first to acknowledge when his own previous reasoning faltered and to offer a better reasoning. A lifelong conviction that legal theory alone has no justification caused him, as part and parcel of his analytical reasoning, to use examples taken from seemingly well-known practice to expound very complex legal reasoning to great advantage of those addressed - students and seasoned lawyers alike. His two principal works are Geist des römischen Rechts and Der Zweck im Recht, but the work that led to his instant fame also outside the borders of the German legal landscape was his Der Kampf um's Recht (1872) that developed from his farewell speech on his departure from Vienna. Von Jhering's clear formulation of the minimum requirements for a legal curriculum is still valid. The non-fulfilment of those requirements lies at the root of many of the less fortunate decisions that have lately been reported from our higher courts. It is no coincidence that the first reference to his thinking in the South African law reports concerned his reasoned qualification of what a qualified lawyer should be able to understand before cloaking himself with the title of a jurist.
Author Philip ThomasSource: Fundamina : A Journal of Legal History 16, pp 186 –198 (2010)More Less
Limited means of communication in antiquity brought funeral games into politics. This paper argues that during the republic politicians communicated their message by way of public spectacles. The origin and development of the ludi are researched and political exploitation thereof during the republic is analysed. The use of these games for public execution of certain categories of criminals deserves attention. Literary and legal texts confirm that Roman politicians were aware of the potential of games to further their careers, with the result that their propaganda value was institutionalised during the empire.
Author L. WildenboerSource: Fundamina : A Journal of Legal History 16, pp 199 –225 (2010)More Less
The Legal Practice Bill of 2009 raises the possibility of the fusion of the legal professions of advocates and attorneys. This issue has attracted a lot of attention, not only from members of the legal profession, but also in the media. This article argues that policy decisions concerning the future of the legal profession cannot be made without a sound understanding of the various influences on, and historical development of the profession. It provides an overview of the history of the legal profession in South Africa and focuses in particular on the historical antecedents of a divided profession, in Roman, early medieval, Roman-Dutch and English law. It concludes by briefly summarising the major arguments for and against the fusion of the legal profession.
Ulrike Müßig Recht und Justizhoheit - Der gesetzliche Richter im historischen Vergleich von der Kanonistik biz zur Europäischen Menschenrechtskonvention, unter besonderer Berücksichtigung der Rechtsentwicklung in Deutschland, England und Frankreich, M. Schermaier, R. Schulze, E. Wadle et al (Hrsgb.) : book reviewAuthor Melodie Nothling SlabbertSource: Fundamina : A Journal of Legal History 16, pp 226 –229 (2010)More Less
Prof Dr Ulrike Müßig, presently the Dean of the Faculty of Law at the University of Passau, needs no introduction amongst legal historians in Europe and locally. The topics of her research interests and publications vary from European constitutional history (twelfth to the twenty first century) to contemporary European legal history; history of the legal integration in Europe and Roman-canon law of succession, to name but a few. The second edition of her monograph on judicial authority and a legal historical comparison of the role of the legally competent or lawful judge ("gesetzlicher Richter") from canon law to the European Convention on Human Rights (ECHR) was published in 2009. This second edition contains new legal developments, such as a discussion on the impact of the Constitutional Reform Act 2005 in the United Kingdom (which brought to an end the judicial role of the House of Lords as the highest appeal court in the United Kingdom). This act also provides for the creation of a new Supreme Court outside Parliament, with the Law Lords as the first Justices of the new Supreme Court (in the process losing their seats in the House of Lords).
Author Alexandr SvetliciniiSource: Fundamina : A Journal of Legal History 16, pp 229 –233 (2010)More Less
Vor fast vier Jahrzehnten ist die bereits zum Klassiker gewordene Monographie von Alphons Bürge über die Juristenkomik in Ciceros Rede für Murena erschienen (Bürge Die Juristenkomik in Ciceros Rede Pro Murena (1974)), im Jahre 2008 erschien beim Passauer Schenk Verlag mit einem Vorwort von Gábor Hamza die englischsprachige Monographie Law, Religion and Rhetoric in Cicero's Pro Murena des ungarischen Romanisten und klassischen Philologen Tamás Nótári.
Studia Iuridico-Philologica I. Studies in Classical and Medieval Philology and Legal History, Tamás Nótári : book reviewAuthor Lora NachevaSource: Fundamina : A Journal of Legal History 16, pp 233 –237 (2010)More Less
Die in der Reihe Hungarian Polis Studies erschienene Aufsatzsammlung des ungarischen Rechtshistorikers Tamás Nótári enthält zwölf Arbeiten, die sich mit verschiedenen Themen aus dem Bereich der antiken und mittelalterlichen Rechtsgeschichte und Philologie befassen. Der Schwerpunkt des Bandes liegt auf den antiken und mittelalterlichen Themen, bei deren Behandlung der rechtshistorische Aspekt eine ebenso große Rolle spielt, wie die philologische gilt es zuerst die sieben sich mit Fragen der griechischen und römischen Rechtsgeschichte, bzw die fünf sich mit der mittelalterlichen Historiographie auseinandersetzenden Aufsätze einzeln zu besprechen, um vom Band ein umfassendes Bild zu gewinnen.
Source: Fundamina : A Journal of Legal History 16, pp 238 –239 (2010)More Less
Professor Robert Feenstra is the Honourary Editor of Fundamina. A Journal of Legal History, which was launched in 1992. During his term in this capacity he has been a source of encouragement and support, serving as the example of a perfect academic. We may mention that, as recently as 2009, he published Hugo Grotius. Mare Liberum 1609-2009. This book, edited and annotated by Professor Feenstra, contains the original Latin text (facsimile of the first edition (1609)) and a modern English translation as well as a general introduction by Jeroen Vervliet. It constitutes a reliable critical edition (with a revised English translation) of Grotius' first publication in the field of international law.