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- Volume 18, Issue 2, 2012
Fundamina : A Journal of Legal History - Volume 18, Issue 2, 2012
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Volume 18, Issue 2, 2012
Author Yasmina BenferhatSource: Fundamina : A Journal of Legal History 18, pp 1 –10 (2012)More Less
This paper is an attempt to study the way Romans dealt with obligations, through the case of Cicero's best friend, T Pomponius Atticus, in the Late Roman Republic. In the first part we focused on some words of the vocabulary of moral obligations: beneficentia, benignitas and liberalitas. These three words are used by Cicero to express the way to help others: beneficentia and benignitas are based on bonus, while liberalitas is a bit different etymologically-speaking and is more specialised in the financial sphere. Through the evolution of the way Roman authors used these words, we can see a change between the Republic and Empire when the Princeps becomes the one who helps others with his generosity. Private generosity sometimes even becomes dangerous. The second part focuses on Atticus' life and the curious way he behaved rather independently: he was generous and helpful, but in a way that allowed him to remain free of any duties. Others were indebted to him but he was never in debt himself. He lent money, furnished fine Greek works of art, opened his library, and used all his connections to be helpful.
Author Peter BonisSource: Fundamina : A Journal of Legal History 18, pp 11 –22 (2012)More Less
Bartolus was perhaps the greatest jurist and law professor of the Middle Ages. He left an extraordinarily large number of commentaries on the Corpus iuris civilis, many treatises on various branches of public and private law, and a huge number of legal opinions (consilia).
His influence has been the subject of research throughout Europe, but regarding Hungary there has been no research into the sources and extant manuscripts and incunables of Bartolus' works. This article aims to rectify this deficiency. The author surveys the medieval legal literature used in Hungary to give an understanding of Bartolus' influence on Hungarian medieval law.
In summarising his investigations into the influence of Bartolus on Hungarian law in the Middle Ages, the author points out that this influence was very limited. The legal works of the Italian glossators were much more popular among Hungarian jurists than the long commentaries of Bartolus. This was the consequence of the strengthening of the Hungarian Juristenstand and the consolidation of Hungarian customary rules, which were reduced to writing as from the fourteenth century when Bartolus himself wrote and taught in Perugia and other cities. Because they clashed with the growing influence of Hungarian customary law and the legal conservatism of Hungarian lawyers, Bartolus' legal doctrines did not have the impact one might have expected.
Author Pieter CarstensSource: Fundamina : A Journal of Legal History 18, pp 23 –49 (2012)More Less
The Pernkopf Anatomy Atlas was compiled in Austria during the Nazi era (1938 to 1945) by Eduard Pernkopf, professor of anatomy and director of the Anatomy Institute at the University of Vienna. Initially, the Atlas was hailed as a classic "masterpiece of unsurpassed beauty", with reference to the anatomical illustrations, until it was discovered in the 1980s and mid-1990s that Pernkopf and his talented illustrators (all ardent Nazis), had used human material obtained from executed victims of Nazi terror to illustrate the Atlas. In addition, it transpired that the illustrators had signed some of the illustrations with offensive Nazi insignia (the swastika and the "SS bolts"). Amid international condemnation and outrage, whether the Atlas should be rejected or continued to be used has continued to be fiercely debated. This article revisits the Atlas with specific reference to transgressions of medical law and ethics, the debate about the continued use of the Atlas, as well as the startling revelation of the complicity of the medical and legal professions in providing the Nazi regime with the legitimacy it needed for the implementation of its political ideology. Ultimately, this article assesses the lessons to be learned from this historical, but contaminated publication. It is argued that the principle of moral complicity, the right to human dignity and, ultimately, civilisation all militate against the continued use of the Atlas.
Author H.M. Du PlessisSource: Fundamina : A Journal of Legal History 18, pp 50 –58 (2012)More Less
In a previous article, the author discussed the rule that prohibits the unilateral determination of price by one of the parties to a contract of sale in Roman law. The author came to the conclusion that the rule is susceptible to many interpretations and that as expounded in Roman law it is controversial. In this article, the author investigates how the Roman-Dutch writers interpreted the Roman-law sources. Although it is clear that the majority of the Roman-Dutch writers regarded a contract as void when it conferred on one of the parties a discretion to determine the price, their views are based on a conservative interpretation of the Roman-law texts and a misdirected appeal to the rules dealing with pure potestative conditions. Two writers criticised these views and argued that such a contract would be valid since the discretion would have to be exercised arbitrio boni viri. This view is also supported by other jurists and modern researchers who have considered the meaning of the Roman-law texts. Finally, the author discusses why such an investigation is of value for the future of South-African law.
Author Nah Thomas FuashiSource: Fundamina : A Journal of Legal History 18, pp 59 –76 (2012)More Less
On 1 October 1961, Cameroon completed the process of gaining independence from colonial rule and acceded to statehood. One of the challenges it faced as a nascent state was that of enforcing the rule of law which necessitated the establishment of a mechanism for law-making. The aim of this article is to examine how far Cameroon has progressed in this sphere since independence. At its birth it was in the peculiar situation of having two different legal systems, namely common law that applied in the English-speaking part of the country and civil law that applied in the French-speaking part of the country. On independence, with its new legislative institutions and backed by certain constitutional provisions, the country embarked upon a policy of legal unification, aiming to pass laws of general application to the whole territory. At the national level, this policy is implemented by the adoption and promulgation of laws (at times the product of unification) intended for application in the entire country. This process is facilitated by a provision in the Constitution relating to treaties that have been signed and ratified by Cameroon. The treaty provisions prevail over other municipal laws and are of general application in the country. In this way Cameroon is making an effort to unify its law.
Author R. KoenSource: Fundamina : A Journal of Legal History 18, pp 77 –107 (2012)More Less
The proponents of restorative justice regularly attempt to harness history to their cause. They argue that the origins of restorative justice mostly coincide with the origins of human society and that restorative composition is at least as prominent historically as retributive punishment. This essay relies on the theoretical resources of historical materialism to analyse critically the historical claims of restorative justice. The conventional division between prehistory and history is comprehended materialistically, with reference to the modes of production - primitive communist, Asiatic, slave, feudal and capitalist - which have structured the human record thus far. The essay considers humanity's response to transgressions across these modes of production, with a view to assessing the space occupied by composition, as opposed to punishment, in our dispositional history. The materialist analysis of this history discerns a close relationship between composition and commodification, in the sense that usage of the former was dependent upon the development of the latter. Commodification is a specifically historical phenomenon and had no place in our prehistory, which spans the vast bulk of human social existence. In the consequence, the claims that restorative justice has a prehistoric provenance are indefensible.
Author Tamas NotariSource: Fundamina : A Journal of Legal History 18, pp 108 –118 (2012)More Less
This paper deals with the first and second decretum of the Hungarian King Stephen I (1000-1038). After outlining the tradition and the main characteristics of the laws of King Stephen, attention is paid to the question of continuity and discontinuity in the foundation of the Hungarian State and law-making and the most important fields of regulation in the decreta. In conclusion, the eastern and western sources of the first Hungarian laws are investigated.
Author Milena PolojacSource: Fundamina : A Journal of Legal History 18, pp 119 –144 (2012)More Less
Unlike modern law, antique law provided for the possibility of an animal, itself, being responsible for its harmful act, whereby the animal was treated not only as an object, but, to a certain extent, as the subject of the law. The regime of the actio de pauperie points to the fact that the idea of delictual liability of an animal was not unfamiliar to the Romans. This is indicated primarily by the noxal character of the action, and also by some other features of its legal regime which could be traced as follows: The actio de pauperie was initially applied in cases where a domestic quadruped from the category of pecudes or res mancipi had caused damage on slaves and livestock. The application of the action was extended to cover all domestic quadrupeds, such, as, for instance, the dog. The praetors' activities contributed to the introduction of the actio utilis, based on which the application of the action was extended to incorporate other domestic non-quadrupeds. It is also likely that the term pauperies acquired its legal-technical meaning - damage caused by a domestic animal. Republican jurists, Quintus Mucius Scaevola, Servius Sulpicius Rufus and Alfenus Varus dealt with the problem of circumstances under which an animal caused damage. The unique conclusion deriving from the examples was that the domestic animal should cause damage by its own instinctive behaviour. Servius named it sudden rage - feritas commota. Relying on his predecessor, Ulpian formulated the famous principle contra naturam. It is difficult to negate a certain anthropomorphism among the Romans in their approach to animals despite many attempts of criticism in romanistic literature. In ethics and law different anthropomorphic and supposedly rational concepts concerning animals existed side by side in the past. And it is still so today having in mind especially contemporary struggle for animal rights.
Author Paul SwanepoelSource: Fundamina : A Journal of Legal History 18, pp 145 –161 (2012)More Less
This article relates to Kenya in the 1950s and focuses on judicial decisions made during the Mau Mau rebellion. It offers a new vantage point from which to view a colonial legal system by examining judicial decisions made during that rebellion, which was spearheaded by members of the Kikuyu ethnic group. Following the declaration of a state of emergency in October 1952, regulations promulgated by the governor introduced a range of new offences, many of which carried mandatory capital sentences. An analysis of case law reveals that on a number of occasions, appellate judges chose to extend the scope of the law by moving away from literal interpretations of the regulations. With time, it became apparent that the magistrates' courts and the Supreme Court of Kenya had become part of the counter-insurgency machinery, while the Court of Appeal for Eastern Africa largely tried to maintain its own independence and sphere of influence as moral guardian of the "rule of law" and as a check on overweening executive power.