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- Volume 17, Issue 2, 2011
Fundamina : A Journal of Legal History - Volume 17, Issue 2, 2011
Volumes & issues
Volume 17, Issue 2, 2011
Author Barbara BiscottiSource: Fundamina : A Journal of Legal History 17, pp 1 –13 (2011)More Less
In this article the subject of fraud by a debtor leads to some reflections on the concept of fraud, with the focus on the difficult problem of distinguishing civil from criminal fraud. This article discusses the roots of the idea of fraud in the writings of the Roman jurists, pointing out that its two aspects, damage and the will to cause it through trickery, which are at the core of the concept itself, only represent the final stage of a process of confusion between fraud and malice. An examination of ancient sources, legal as well as literary, shows that the original idea of "fraud" was concerned with only objective damage, the "eventus damni". Perhaps this article will lead others to new insights on the "grey zone" between civil and criminal fraud.
Author Marita CarnelleySource: Fundamina : A Journal of Legal History 17, pp 14 –32 (2011)More Less
This article discusses the Roman-Dutch laws pertaining to gambling with specific reference to the provisions dealing with cheating during play. Both the criminal aspects and the legal rules relating to the unenforceability of gambling debts in the Roman-Dutch period, and the possible exception thereto in instances of cheating, are discussed and compared with pre-Union South African legislation as well as pre- and post-Constitutional statutes. A comparison is drawn with the legislation in England / the United Kingdom during the corresponding period. The document is illustrated with mainly European paintings depicting cardsharps and persons cheating at gambling.
Access to information : the hallmark of democracy with reference to the protection of information bill and three historical incidentsAuthor Joan ChurchSource: Fundamina : A Journal of Legal History 17, pp 33 –45 (2011)More Less
Freedom of the press and access to information regarding the conduct of government are the hallmarks of democracy. In this article the threat to such freedom is discussed in the light of the proposed Protection of Information Bill and against the background of three historical incidents that highlight the danger inherent in impinging upon these freedoms. Two of these date from the 1970s and are known as "Watergate" and "Infogate" in the United States of America and in South Africa, respectively. The third, which highlights the encounter of citizens with an arrogant Lord Charles Somerset, dates from the early days at the Cape. In the present constitutional dispensation in the Republic of South Africa, which is based on the values underlying an open and democratic society, executive conduct which threatens the rights of citizens in this way is to be deprecated. Legislation which encroached upon such rights would not pass muster.
Author Andrew DomanskiSource: Fundamina : A Journal of Legal History 17, pp 46 –55 (2011)More Less
The teaching of law in South Africa today faces daunting challenges. One of these is the large number of underprepared students who lack skill in reading, writing and speaking English. Even after completing their studies, many law graduates lack the ability to apply legal principles and to solve problems. This parlous state of affairs is largely the result of government's deplorable policy decision to sacrifice the humanities on the altar of science and technology. The term "humanities" is taken to embrace the classics (Greek and, in particular, Latin), literature, ethics, classical philosophy and Roman law. Given the vital importance of the humanities at tertiary level, I argue that there is much we can learn from the educational ideas of the great seventeenth-century jurist Ulric Huber. There are striking similarities between the law students of Huber's time and those of our own age. Particularly students who seek a career in litigation need instruction in the humanities. Huber also insists on skill in public speaking and he regards the ongoing study of ethics as an essential feature of law studies, a feature of particular relevance to our modern conditions. In conclusion, I argue that the adoption of a law curriculum on the lines proposed by Huber is capable of producing a significant improvement in the literacy, self-confidence and competence of our modern law graduates.
Author H.J. ErasmusSource: Fundamina : A Journal of Legal History 17, pp 56 –69 (2011)More Less
On 3 February 1848 Sir Harry Smith, British High Commissioner and Governor of the Cape, proclaimed British sovereignty over the area between the Orange River and the Vaal River. Almost immediately after the declaration of sovereignty, brisk trade and speculation in land ensued. The principal participants in the speculation were members of the Cape settler elite, some of whom acquired truly vast tracts of land. British officials in the region also participated in the speculation and some of them acquired very large holdings of land. The conduct of the officials elicited strong disapproval from senior British officialdom. The focus of this article is on the response to the conduct of the British officials in the Sovereignty by the Duke of Newcastle, Secretary of State for Colonies, by Sir George Cathcart who succeeded Sir Harry Smith as Governor of the Cape and by Sir George Clerk who had been appointed special commissioner to oversee the British withdrawal from the Sovereignty.
Author Shannon HoctorSource: Fundamina : A Journal of Legal History 17, pp 70 –82 (2011)More Less
The controversial defence to criminal liability of non-pathological incapacity has developed in the last thirty years, through case law. However, the origin of the defence in South African law can be traced to the report of a commission of inquiry, which was influenced by the work of the South African criminal law academic JC de Wet. Both the commission of inquiry - the"Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters" (RP 69/1967) - and De Wet rely in crucial respects on the work of the Dutch psychiatrist Wiersma. This article places the development of the South African criminal law in its historical context, before examining the unusual manner in which the defence of non-pathological incapacity has developed, with particular reference to the application of the defence to the issue of provocation. In conclusion, the most recent case law is placed in the context of the origins of the defence.
Author Francesco LucreziSource: Fundamina : A Journal of Legal History 17, pp 83 –100 (2011)More Less
The so-called Commentariolum petitionis, probably written in 64 BC and ascribed to Quintus Tullius Cicero (the younger brother of Marcus), provides some knowledge and understanding of the problem of corruption in the electoral competitions in the late Roman republic.
In the Commentariolum - a private letter apparently sent to Marcus by Tullius â?? a number of useful suggestions for winning the petitio for the election of the consuls for the year 63 (in which Marcus was a candidate and gained victory) are found.
It is possible to draw some indications from the text about the phenomenon of financial corruption in the electoral competitions which was persecuted as crimen ambitus by two different comitial laws de ambitu, namely the lex Cornelia (81 BC) and the lex Calpurnia (67 BC).
The contents of these laws appears highly uncertain and contradictory since the fight against corruption had no ethical or legal purpose. It was simply one of several instruments used in the political fight with the aim to eliminate the financial power of the antagonists.
Marcus, as homo novus, could not rely on money and wealth, but his virtus and eloquentia allowed him to aim at success. The Cicero brothers therefore had an interest - as the Commentariolum reveals - in supporting anti-corruption legislation.
After having been elected as consul, Marcus continued his fight against corruption, always for his personal interest as homo novus. With this purpose, he proposed to the comitia (that approved it) a new lex Tullia de ambitu that greatly increased the prohibitions of the lex Calpurnia, forbidding the petitores to do many things that were previously allowed (offering ludi gladiatores and public banquets, paying adsectatores - people employed to follow and assist the candidate - or divisores - fellows charged to distribute money in the centuria and tribus - etc), and that were expressly suggested in the same Commentariolum as allowable instruments.
But Cicero's interests quickly changed, as appears from his oratio in defence of Lucius Licinius Murena, petitor for the year 62, who was accused - with very good arguments - by the jurist Servius Sulpicius Rufus (a personal friend of Marcus) for open violations of the same lex Tullia. Prosecuting Marcus' political career was evidently no longer worth continuing the fight against electoral corruption.
Author Caroline NicholsonSource: Fundamina : A Journal of Legal History 17, pp 101 –114 (2011)More Less
This article explores the role of Roman law and legal history in the training of the modern jurist. A case is made for the retention of Roman law and legal history as vital components of the LLB degree. In making this case, the writer explores the reasons for reconsidering the role of these courses at this time and the inherent value that both offer the aspirant jurist. The article concludes with some preliminary suggestions on how these courses may be better integrated into the curriculum.
Author David PugsleySource: Fundamina : A Journal of Legal History 17, pp 115 –126 (2011)More Less
In D 1 3 there are thirty-two inscriptions with a Roman numeral and nine with a Latin word for a number. The distinction is not apparent in modern translations, but even a non-Latinist can see it in Mommsen's Latin text. But the use of numerals was forbidden by Deo Auctore 13 and heavily punished by Omnem 8 and Tanta 22. Presumably these fragments were excerpted before Deo Auctore was promulgated and were left unchanged by oversight. The word "codex" frequently refers to the Digest, not the first Code of 529, at least seven and probably eight times out of twelve in Deo Auctore. In Deo Auctore 3, the modern translations are wrong. "Our codex" means the Digest and the documents are Deo Auctore 4 and following, and the collection of fragments with a Roman numeral in D 1 3. It appears that this was a proposal by Tribonian to Justinian and Theodora, supported by draft instructions to the compilers and a specimen title of fragments. There is a complete new translation of Deo Auctore at the end of this article.
Author Jan-Louis SerfonteinSource: Fundamina : A Journal of Legal History 17, pp 127 –138 (2011)More Less
While Constantine may truly be called great for his achievements as a strategist and military commander, as the founder of Constantinople and the first proclaimed Christian Roman emperor, he was certainly not without flaws. This study investigates the flaws rather than the successes of the great man's career and character. These flaws are identified as his obsession with, and failure to emulate, his predecessor Augustus; his preoccupation with form and gross neglect or even ignorance of substance in his relationships with others and during his reign as Roman Emperor; and his perverse obsession with sexual morality and the ineffective legislation inspired by this obsession. These flaws are investigated against the background of the public and private fraud and corruption that characterised his reign as Roman Emperor from AD 327 to AD 337, public corruption in the form of his monetary and tax reforms and private corruption in the form of the killing of both his eldest son Crispus and his second wife Fausta.
Source: Fundamina : A Journal of Legal History 17, pp 139 –152 (2011)More Less
The corruption of judges is traced in Roman law and the English common law. The search for precedent brings us to the person of Francis Bacon, universally admired as the father of the new natural sciences. His career in law culminated in the chancellorship and was ended by impeachment. As a scientist Bacon questioned the philosophical underpinnings of natural science of his time and developed a new philosophy of science. Bacon was a utilitarian and his importance is found in the reception of his ideas. His law career ended with his removal from office on the grounds of his having accepted bribes, which he freely confessed. The inconsistency in Bacon's behaviour in these two branches of science deserves attention.
Conference of the Southern African Society of Legal Historians, 17-18 January 2011, Stellenbosch, South Africa : variaSource: Fundamina : A Journal of Legal History 17, pp 153 –156 (2011)More Less
On 17 and 18 January 2011 in Stellenbosch in the Cape the Southern African Society of Legal Historians held a conference in conjunction with the conference of the Society of Law Teachers of Southern Africa. The theme of the conference was "Fraud and corruption in the public and private spheres", but presentations on other topics were also welcomed. Attendance by participants from Italy, England and the Netherlands reflected the international character of Roman law and legal history and the existence of a transnational network within these disciplines.