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- Volume 19, Issue 1, 2013
Fundamina : A Journal of Legal History - Volume 19, Issue 1, 2013
Volumes & issues
Volume 19, Issue 1, 2013
Quand il n'y a rien à transmettre : le droit de la propriété intellectuelle, Atticus et la diffusion des oeuvres de CicéronAuthor Yasmina BenferhatSource: Fundamina : A Journal of Legal History 19, pp 1 –11 (2013)More Less
This paper attempts to provide an answer to a well known question: Was Titus Pomponius Atticus, Cicero's best friend, really a professional editor? In the first part, we study his finances in order to show that he certainly did not need to earn money in this way: he was born quite rich, and became even richer. He was, eventually, one of the wealthiest men in Rome thanks to his being adopted by his uncle Caecilius. His main activity seems to have been the lending of money to cities like Sicyone, and to friends. He also owned buildings in Rome and agricultural estates in Italy. He had some hobbies, like history - he actually wrote a book and tried to convince some of his friends to write too - and books: he had a huge library and was always willing to have copies of books made for his friends by his staff of slaves well trained to do so.
The second part is a study of Cicero's letters and focuses on the part played by Atticus when Cicero wrote a book: we note that he was there at every step. First he provided ideas of subjects to write about. He tried to convince Cicero to write on geography for example, but it seems that mostly he tried to help Cicero in his political career and relationships. Then he helped Cicero by lending him reference works. And when the speech or treaty was finished, Atticus was there to launch it: he organized dinners at which lectures were given, and if the guests liked the opus, he supplied copies of it. Was it really a business? It seems it was usual to write and offer books to political relations and that Atticus' activities in that field were a matter more of friendship and passion for books (or culture) than of money. Other people, as for example Caelius and Cornificus, also asked Cicero to write books or promoted his books, without being editors or publishers. Thus Atticus was probably no professional editor, but rather the head of a literary circle at a time when the elite of Rome was waiting for great writers to equal the Greek authors in all fields.
Author Tamas NotariSource: Fundamina : A Journal of Legal History 19, pp 12 –27 (2013)More Less
Cicero's speech in defence of Quintus Ligarius (Pro Ligario) delivered in 46 is considered a classic example of deprecatio in both ancient and modern literature. Historically it is an important work as it was Cicero's first oration on the Forum, that is, before the general public after the civil war. In this oratio, Cicero praised Caesar's clementia and seemingly legitimised dictatura. First, we describe the historical background of the oratio and the process of the proceedings; thereafter we examine the issue to determine whether the proceedings against Ligarius may be considered a criminal trial. After an analysis of the genre of the speech, deprecatio, we analyse the appearance of Caesar's clementia in Pro Ligario. In conclusion we focus on the means of style of irony, and highlight an interesting element of the Caesar-Cicero relation and how the orator voices his conviction that he considers the dictator's power and clementia illegitimate.
Abuse of state power : the mandatory death penalty for political crimes in Southern Rhodesia, 1963-1970Source: Fundamina : A Journal of Legal History 19, pp 28 –47 (2013)More Less
Shortly before the unilateral secession of Southern Rhodesia (colonial Zimbabwe) from the British Empire under white minority rule, the Rhodesian legislature passed sweeping security legislation authorising more severe criminal punishments for political crimes, including the mandatory death penalty for petrol bombing. This legislation conflicted with Rhodesian criminal sentencing for ordinary crimes such as murder and robbery, which permitted some judicial discretion in capital sentencing. Petrol bombing and the later mandatory death penalty for aggravated arms possession were the only two crimes that did not permit judicial sentencing discretion, making them the two most disproportionate criminal punishments ever passed in wartime Rhodesia. These statutory changes were doggedly opposed on the floor of Parliament by the independent Member of Parliament Dr Ahrn Palley and a handful of liberal and progressive allies. The penalties withstood constitutional challenges that claimed that these disproportionate punishments were cruel, inhuman, and degrading. Although the mandatory death penalty for petrol bombing proved unenforceable and would be repealed, other security legislation survived in independent Zimbabwe, where it fell into disuse but remained on the books.
Source: Fundamina : A Journal of Legal History 19, pp 48 –60 (2013)More Less
The origin of the principles constituting the doctrine of vetustas can be traced back to the Digest. It would be wrong, it is submitted, to regard it as a fully-fledged doctrine in Roman law. The doctrine was developed in European countries under the influence of canon law and particularly through the works of the Pandectists. According to the basic principles of vetustas the public obtains a right to make use of some "public servitude" such as a road or aquaduct on account of usage by the public of such facility since time immemorial. "Time immemorial" in the classic sense means since a moment in time that is unknown to any living person. It is permissible to produce hearsay evidence in terms of which people who are still alive testify that their forbears already made use of the facility or construction. There are many older South African cases in which the principles of immemorial user or immemorial custom have been applied, often without referring to old authorities or even mentioning vetustas. However, in later cases the principles of vetustas as such were spelled out and applied. The South African courts relaxed the rule a bit by accepting that a right has indeed been exercised since time immemorial if it is proved that the usage has been in existence for more than thirty years and no evidence rebutting the presumption that is created in the process can be adduced. Vetustas, although showing similarities with prescription, should not be confused or placed on an equal footing with servitutes created through prescription, because there are important differences, as is pointed out in the article.
Vetustas is not the type of doctrine that attracts the attention of the courts too often. Very recently, however, a case was reported in which vetustas was applied. The decision is The Langebaan Ratepayers' and Residents' Association v Dormell Properties 391 (Pty) Ltd 2013 (1) SA 37 (WCC). The court found in this case that the public obtained a right to use a certain road through use since time immemorial. This article fairly comprehensively deals with the decision in this case and the background to the dispute.
Author W.G. SchulzeSource: Fundamina : A Journal of Legal History 19, pp 61 –105 (2013)More Less
This article provides a brief introduction to the role and relevance of South African legal periodicals and provides a chronological list of South African legal periodicals. This list of law journals contains, inter alia, a brief description of the history and development of each journal, the names of the first and current editors; and states whether or not the journal is accredited for South African Post Secondary Education purposes. Each listing in the conspectus of periodicals is accompanied by an image of the front cover of the relevant journal. As a general rule the image of the front cover, or full title page or table of content page, of the very first number of each journal has been used as accompanying illustration to each listing in the conspectus.
The conspectus of legal periodicals confirms that there has been a massive proliferation of new law journal titles during the last forty years. Although there is a large degree of overlapping of area and field covered by the articles in many of these journals, it is also true that a number of new specialised law journals have been published.
Finally, some comment is made on the future of South African legal periodicals, including the possibility that soon many of them will no longer appear in hard copy, but only in an online format, and that all research which is funded with public funds will have to have open access.
Author J.P. Van NiekerkSource: Fundamina : A Journal of Legal History 19, pp 106 –145 (2013)More Less
As a source of law, judicial decisions stand central in any legal system that applies the doctrine of precedents. South African law is such a system. This article traces the publication of the pre-Union decisions of the various courts functioning in the region. The published reports were unofficial and the result of private initiatives. Some biographical information is also provided of those who compiled these reports, South Africa's early law reporters.
Old Babylonian family division agreement from a deceased estate - analysis of its practical and theoretical mechanismsAuthor Susandra J. Van WykSource: Fundamina : A Journal of Legal History 19, pp 146 –171 (2013)More Less
The family division agreement in a deceased estate is part of a vast old Babylonian legal corpus. It prima facie functions as a simple, straightforward agreement between family members. However, the different aspects of the agreement are not fully understood by today's scholars. This article offers some reflection on this specific agreement: the family division agreement in a deceased estate as a complex legal notion. In the article special attention is paid to what this agreement entails by explaining its practical and theoretical mechanisms. Reasons are given for categorising this agreement as a family division agreement deriving from a deceased estate in contrast with other types of division agreements from different estates. For practical reasons the different evolutionary stages in an estate are outlined. In relation to the theoretical mechanisms of the agreement, the relevance and meaning of recordings on objects in ancient Mesopotamia are discussed, with special reference to old Babylonian division agreements. In essence this agreement, as used in ancient Babylonian life, serves as a successful, timeless, estate administration mechanism and tool, to obviate any undesirable consequences of co-ownership of bequeathed property in the old Babylonian city-states.
Source: Fundamina : A Journal of Legal History 19, pp 172 –174 (2013)More Less
An obituary on Lord Rodger of Earlsferry (1944-2011), written by Andrew JM Steven of Edinburgh, appeared in 2012 (18-1) Fundamina 189. Lord Rodger was, to quote Steven, the "Lord Justice General and Lord President of the Court of Session (the head of the Scottish judiciary)". He became a House of Lords Judge in London in 2001 and subsequently a Justice of the newly established Supreme Court of the United Kingdom until his death (Steven at 190). Steven describes him as "indisputably the pre-eminent Scottish lawyer of his generation" (at 189). At one point (at 192) Steven writes the following about Lord Rodger: "Like his judgements, many of the statements made in his articles were eminently quotable and he rarely refrained from expressing his viewpoint. I take as an example his 'Developing the law today: National and international influences' (2002 (1) Tydskrif vir die Suid-Afrikaanse Reg 1) which is a revised version of his keynote address to the annual South African banking-law update conference in 2001".
Author Willemien Du PlessisSource: Fundamina : A Journal of Legal History 19, pp 175 –178 (2013)More Less
On 17 February 2013 Tom de Smidt, a friend of all legal historians in South Africa, died in Haarlem (Netherlands) at the age of eighty-nine after a short illness. Because of the Second World War he could only start his academic studies in 1945 and studied law in Leyden from 1945 until 1950. Professor HWFD Fischer asked him to become his assistant in 1947.
Source: Fundamina : A Journal of Legal History 19, pp 179 –183 (2013)More Less
An era has closed with the passing away of the doyen of legal history, Robert Feenstra. His contribution to legal science is reflected in the eleven universities outside the Netherlands that each bestowed an LLD honoris causa on him. The fact that the University of Pretoria is amongst these institutions reflects not only the international stature of Feenstra's work, but also his personality. A Dutch Francophile, and in addition a cosmopolitan, Feenstra travelled the world and inspired young and old researchers.