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- Volume 21, Issue 1, 2015
Fundamina : A Journal of Legal History - Volume 21, Issue 1, 2015
Volumes & issues
Volume 21, Issue 1, 2015
Author Yasmina BenferhatSource: Fundamina : A Journal of Legal History 21, pp 1 –13 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a1More Less
This paper is an attempt to underline the importance of patientia in the political life of ancient Rome, especially during the late Republic and the first century BC. Although the Christian notion of patientia has been well studied, the political quality it could represent is still a new field. The main problem is first to decide what kind of quality it was : in the late Republic, it was the physical endurance a general would need, which explains why Catilina based his propaganda on patientia, but it could also be a moral virtue. Patientia was a plebeian virtue against the pride and cruelty of the Patricians : this contrast was reaffirmed in the Civil War, when Caesar applied it against the Optimates who were acting arrogantly. Under the Julio-Claudians, patientia was a virtue with very much the same meaning as constantia, but it never attained the same importance because it was sometimes connected with servility. Patientia, which was a positive notion in the late Republic, whether physical or moral, came to be employed in a negative context by Tacitus. This study does not pretend to be exhaustive - it would be necessary, for instance, to consider the Stoic influence - but is merely a first step towards a better understanding of patientia before the Christian era.
Some remarks on laesio enormis and proportionality in Roman-Dutch law and calvinistic commercial ethicsAuthor Jan HallebeekSource: Fundamina : A Journal of Legal History 21, pp 14 –32 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a2More Less
This contribution contains a continuation of an earlier article dealing with the concepts of iustum pretium and proportionality in Roman law and the ius commune. Its findings for Roman-Dutch law, however, appear to be incompatible with the conclusions expounded by James Whitman in an article on the role of Roman law in early modern commerce. Whitman maintained that the traditional Christian rule on fair pricing was no longer upheld by the jurists and clergymen of the Dutch Republic. By appealing to Roman law, the Dutch would have abandoned the longstanding just-price principles and would have considered active fraud by malicious salesmen to be permissible. This would appear from vernacular books on Roman-Dutch law, which, as a consequence, exuded an atmosphere of immorality. Moreover, the new commercial attitude was said to be supported by a number of moral handbooks written by Calvinistic clergymen. However, when reinvestigating the sources quoted from the wider perspective of the civilian tradition, other "Old Authorities" of Roman-Dutch law and the true nature and purpose of the Further Reformation, there is no choice other than to query Whitman's findings.
Author Joachim HengstlSource: Fundamina : A Journal of Legal History 21, pp 33 –62 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a3More Less
The ancient world saw the rise and fall of many cultures, with accompanying cultural exchanges and reciprocal influences. It seems that such reciprocal influences and exchanges extended to the law as well, and affected legal evolution. Old legal institutions were preserved for future generations but were influenced by newer cultures. This concept is not new, but Barta has revived it. He has embarked on a publication comprising four volumes, of which volumes 1, 2 (pt1/2) and 3 (pt 1) have appeared. The author has set out to prove that the influence of Greek law on Roman law was greater than has been acknowledged up until now, that Greek law was likewise influenced by the Old Orient, and that Roman law also influenced later legal systems. The one concern of this article is to show that Barta's theory is invalid. The other concern is to criticise Barta's approach. He does not cite the extensive literature on which he relies, but quotes it. He fills page after page with texts by other authors but does not discuss nor analyse their content. Thus the reader is provided with a wide range of legal literature of the past, but not with any critical analysis of it. Newer writing is often neglected. Barta himself has interesting ideas, but it is difficult to detect them, hidden as they are amongst the cited literature. This approach is followed in all volumes but is scientifically unacceptable and merits the strongest criticism.
Remarks on the methodology of private law studies : the use of latin maxims as exeplified by nemo plus iurisSource: Fundamina : A Journal of Legal History 21, pp 63 –83 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a4More Less
Lawyers use words with great care and, particularly in public discourse, often like to use Latin dicta. They do so not only to make their arguments sound more sophisticated, but also to support their theses not merely with elegantly worded, classical maxims, but also with well tested, established concepts based on the experience of people who lived in ancient Rome, a consummately practical society, very well versed in the practice of law. A legal dictum formulated in Latin is referred to as a rule, maxim, definition, precept, or principle. It is impossible to differentiate these terms clearly, although this has been done for instance in the terminology used in contracts in continental private law. How can contemporary lawyers best use Latin maxims and sentences? This is explored by using the example of nemo plus iuris ad alium transferre potest, quam ipse haberet. The six steps are as follows: use maxims competently; be aware of the context of your quotation; do not allow yourself to be taken by surprise; make sure the maxim is well established in the law; do not neglect related and supporting maxims; and take the local context into account.
Author Tamas NotariSource: Fundamina : A Journal of Legal History 21, pp 84 –101 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a5More Less
The speech for the defence in the criminal action (causa publica) of Aulus Cluentius Habitus, Cicero's longest surviving speech, dates back to the year 66 when Cicero was praetor. In certain respects, it is the jewel in Cicero's ars oratoria, since its narrative is vivid and full of twists and turns like a crime story. Events, scenes and time sequences follow one another in a dramatic, sometimes seemingly illogical fashion, but in view of the effect the orator seeks to attain, in an exactly premeditated sequence. One charge against Cluentius was that he had poisoned his stepfather, Statius Albius Oppianicus. Another charge was based on the criminal proceedings that had been instituted eight years previously, when Cluentius had charged Oppianicus with attempting to poison him, which resulted in Oppianicus being forced into exile. In the current lawsuit, however, the prosecution alleged that the court in the previous case had declared Oppianicus guilty purely because Cluentius had bribed the judges. The lex Cornelia de sicariis et veneficiis of 81 was applicable with regard to charges of poisoning. However, that law prohibited bribing only those judges who belonged to the order of senators, and Cluentius belonged to the order of knights. First, I outline the historical background of the oration, that is to say, the facts of the case; then, I turn my attention to the possibility of applying the lex Cornelia de sicariis et veneficiis to the case. Finally, I examine Cicero's oratorical strategy of addressing, modifying or distorting the charges and their chronology in order to back up his argument, which lawyers, too, will regard as brilliant.
Like a bad penny : the problem of chronic overcrowding in the prisons of colonial Natal : 1845 to 1910 (part 1)Author Stephen Allister PeteSource: Fundamina : A Journal of Legal History 21, pp 102 –118 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a6More Less
During recent decades, like the proverbial bad penny, the problem of chronic overcrowding has turned up over and over again to haunt South African prison administrators. As this article indicates, however, overcrowding in South African prisons is not only a recent phenomenon. Overcrowding has been a significant feature of imprisonment in South Africa from the very introduction of this form of punishment into the country. This article examines overcrowding in the prisons of colonial Natal from 1845 until 1910. Through an analysis of the official discourse surrounding this difficult problem throughout the colonial period, this article shows that imprisonment as a form of punishment in South Africa has always been inextricably bound up with the problem of overcrowding. By illustrating the deeply entrenched nature of the problem from a historical perspective, this article hopes to provide present-day prison administrators with useful insights into the nature of their struggle to overcome the problem. The article is in two parts. Part 1 of the article covers the period 1845 to 1875, while Part 2 covers the period 1875 to 1910.
Author Lienne SteynSource: Fundamina : A Journal of Legal History 21, pp 119 –141 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a7More Less
In the last decade, the Constitutional Court has recognised that the sale in execution of a debtor's home potentially infringes the debtor's right to have access to adequate housing in terms of section 26 of the Constitution. The position is now that, in every case in which execution is sought against a debtor's home, judicial oversight is required to determine whether execution is justifiable, taking into account "all the relevant circumstances" in terms of section 36 of the Constitution. Last year, the European Union issued a directive to its member states requiring forbearance in matters concerning foreclosure against residential property. Against this contextual background, this article explores the ways in which execution against a debtor's home was dealt with according to Roman law, a common source of many contemporary legal systems. Initially, substantive and procedural rules relating to debt enforcement permitted execution only against a debtor's person. Subsequently, the law developed to provide for execution against a debtor's property. Collective debt enforcement (or insolvency) rules and procedures evolved, as did principles pertaining to mortgage and a creditor's rights of real security. Certain types of assets came to be regarded as exempt from execution in the individual and collective debt enforcement processes, but there was no formal exemption of the debtor's home. However, it is submitted, a study of the relevant legal principles and procedures as applied in their historical and socio-economic context - especially in light of the revered status of the familia, including the ancestors, the household gods and the requisite hereditary altar as well as the complex societal relationships - reveals the discernible, albeit indirect and subtle, consequence of providing protection for an impecunious debtor against the loss of his home at the instance of a creditor.
Denis O'Bryen : (nominally) second marshal of the vice-admiralty court of the Cape of Good Hope 1806-1832Author J.P. Van NiekerkSource: Fundamina : A Journal of Legal History 21, pp 142 –184 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a8More Less
Denis O'Bryen's appointment as marshal of the Vice-Admiralty Court at the Cape of Good Hope in 1806 resulted from his political activism in England during the preceding decades. It must be understood in the context of the system of colonial patent office appointments that operated at the time.
Author David WardleSource: Fundamina : A Journal of Legal History 21, pp 185 –204 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a9More Less
The Emperor Augustus' so-called social or moral legislation features prominently in legal and historical discussions of his principate. His biographer Suetonius concentrates into one chapter a discussion of Augustus' leges rogatae, which has never been analysed phrase by phrase by any scholar of Roman history or law since Paul Jörs in 1893. This article sets out to explain how Suetonius orders his discussion, chooses precise vocabulary, highlights key stages in the legislative programme, and does not conceal opposition to the legislation. The most controversial law, on which Suetonius centres his discussion, is the lex Iulia de maritandis ordinibus, key provisions of which were amended in the lex Papia Poppaea of AD 9. I argue that Suetonius comments not only on the lex Iulia de maritandis ordinibus, but also on later amendments, whether in the putative lex Aelia Sentia of AD 4 or the indisputable lex Papia Poppaea. There is, however, no reference to any abortive moral legislation of 27 BC. Suetonius presents an emperor concerned with major social issues, careful in the formulation of his laws, but also suitably responsive to societal pressure.
Author Magdolna SicSource: Fundamina : A Journal of Legal History 21, pp 205 –208 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a10More Less
In this monograph, Tamás Nótári investigates certain legal and socio-historical aspects of the lex Baiuvariorum, but also gives ample space to a philological analysis of its Medieval Latin. The first chapter (Historical and social background - Bavaria in the eighth century), examines Bavaria's history and society during the first half of the eighthcentury. Specifically, it deals with Bavaria's home and foreign affairs and church organisation, and certain issues pertaining to the structure of society, namely,the evolution of the Bavarian nobility and the status of freemen and slaves. It furthermore analyses the end of the independent Bavarian Dukedom, focusing on the dethronement of Tasilo III, the last duke of the Agilolfing dynasty, and the legal background of the dethronement.
Janwillem Oosterhuis specific performance in German, French and Dutch law in the nineteenth century - remedies in an age of fundamental rights and industrialisation : book reviewAuthor Sieg EiselenSource: Fundamina : A Journal of Legal History 21, pp 209 –212 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a11More Less
It is often stated in comparative essays and studies that one of the fundamental differences between the common law and civil law with regard to obligations lies in the remedy of specific performance. According to this view, specific performance is the primary remedy in civil law where there has been a breach of contract, since the innocent party has a right to fulfilment of the contract. In the common law, on the other hand, specific performance is a secondary remedy, the primary remedy being a claim for damages. Against this background, this historical analysis by Oosterhuis is an important addition to the body of work on this subject in the English language. The author also gives an in-depth account of changes to this remedy during the nineteenth century, which was a very formative time for the civil law in Europe, especially the three countries studied in this work.
Author Elsabe SchoemanSource: Fundamina : A Journal of Legal History 21, pp 213 –215 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a12More Less
With the passing of Professor AB Edwards, South Africa lost a great legal scholar. I lost a mentor and a friend.I first met Professor Edwards (as I continued to call him after his retirement) in 1984 when I was appointed as a research assistant in the then Department of Legal History, Comparative Law and Legal Philosophy. One of my first tasks was to assist in checking references for his work on Paulus Voet, which would later be published as The Selective Paulus Voet (Fundamina Editio Specialis, University of South Africa, 2007). During that time, I translated chapters from his PhD Thesis (University of Cape Town, 1984) from English into Afrikaans - a daunting task for a young research assistant, but giving me my first glimpse of the great scholar that he was. Two years later, I became a permanent member of the Department with Professor Edwards as its Head, and sometime later he became my doctoral supervisor. All in all, I had known him for thirty odd years, yet when I was approached to write this obituary, I realised at once how much and how little I knew about him.
Author Joan ChurchSource: Fundamina : A Journal of Legal History 21, pp 216 –217 (2015) http://dx.doi.org/10.17159/2411-7870/2015/v21n1a13More Less
The passing of Professor AB Edwards in January 2014 was a sad moment - not only for his family, but also for his friends and former colleagues, and particularly those formerly and presently at the University of South Africa. As one of the latter I am honoured to write a tribute in memory of him and the thoughts of him that I share are written in that vein.