Fundamina : A Journal of Legal History - latest Issue
Volumes & issues
Volume 22, Issue 1, 2016
Source: Fundamina : A Journal of Legal History 22, pp 1 –24 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a1More Less
This article studies the meaning of the expression in "loco filiae" that Gaius uses to describe the position of the wife that has undergone a conventio in manum. Its aim is to ascertain whether or not manus, potestas and mancipium were equivalent powers, in the time of Gaius, by identifying, in particular, institutions which reflect disparate regulation of each.
Author Yasmina BenferhatSource: Fundamina : A Journal of Legal History 22, pp 25 –39 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a2More Less
Youth in politics might be a default - a lack of experience justifying waiting for your turn - or an advantage, as a promise of renewal and energy. In ancient Rome youth was something more positive than one could expect: the Roman people, if not the Senate, was fond of young leaders like Scipio Nero, whilst Galba was despised for being too old. This paper aims at studying the case of two young men in the Late Republic - Brutus and Octavian - through their relationship with a much older man, Atticus. The first part focuses on Brutus, born approximately 85 BC and belonging to the ancient elite like Atticus, who was considered a promising young leader of the Optimates since his beginnings in 58 BC until his misfortune in 44-43 when he could not manage to apply the murder of Caesar to his own advantage. The second part concerns Octavius, the real young man, born in 63. He was nineteen years old when he became Caesar's heir, while Brutus was already forty. The vocabulary is revealing: Octavius is called puer by his opponents, but he is an adulescens for the Caesarians, and Brutus is described as an adulescens though already a iuvenis. Atticus, who always helped Brutus, had to change his way: a wedding between Attica and Agrippa, planned by Antony, resulted in him finally belonged to Octavian's party. Octavian, the new man who had won the war, needed a symbol of the old elite and of Republican Rome. Atticus had to save what could be saved.
Author H.J. ErasmusSource: Fundamina : A Journal of Legal History 22, pp 40 –52 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a3More Less
Hugo de Groot (1583-1645) is internationally known as the father of international law and also celebrated for his seminal work on the law of nature. The principal work of Johannes Voet (1647-1713) is his Commentarius ad Pandectas in which he expounds the modern law (the jus hodiernum) in the light of the Pandects of Roman law. In the first title of his Commentary, Voet briefly sets out his views on the foundations of natural law. He rejects the views of De Groot on this score as unacceptable. The purpose of this note is to trace the exposure of De Groot and Voet to the subtleties of the esoteric theological debates in Reformed (Calvinist) circles in seventeenth century Holland, and to highlight the theological background to their differing views on the source of the law of nature.
Author Kamban NaidooSource: Fundamina : A Journal of Legal History 22, pp 53 –66 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a4More Less
Hate crimes were first recognised as a specific category of criminal conduct in the United States of America. Evidence of such recognition is supported by a number of state level and federal hate-crime laws that were enacted in the United States between the early 1980s and 1990s. There is a tendency in some American literature, however, to trace the recognition of hate crime as a specific category of criminal conduct to two specific historical time periods. The first historical period that is usually considered, is the nineteenth-century post-American Civil War period when federal civil-rights statutes were passed by the American Congress to protect vulnerable groups of people who were victimised because of their race and prior status as slaves. The second time period that is considered is the mid-twentieth century, post-Second World War era up to the period of the Civil-Rights Movement. Irrespective of the origins of hate crime as a category of criminal conduct, their recognition has spawned a new category of crime and criminal laws in the United States of America and internationally. Contemporary hate-crime laws recognise a wide spectrum of prejudices and biases. Despite the international trend, particularly in democratic Western nations towards the recognition of hate crimes and the enactment of hate-crime laws, the Republic of South Africa has yet to enact a hate-crime law.
Author Morris SilverSource: Fundamina : A Journal of Legal History 22, pp 67 –93 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a5More Less
Why did Roman slaves have a peculium or purse? It has been suggested that the grant of a peculium was a clever arrangement, a trick actually, by means of which owners incentivised slaves to perform unsupervised labour. Upon this incentive base stands Rome's "peculium economy" in which diverse and far-flung business and other activities are performed by minimally supervised slaves. However, forcibly taken slaves (including born-slaves), the kind still taken for granted in the scholarly literature, would not be sufficiently incentivised by peculia. The "peculium economy" stands, however, because the slaves forming its base are slaves by contract/self-sellers. The peculium, the legal and other evidence suggests, is a contractual benefit desired by and typically made available to free individuals who volunteered for slavery. This is precisely how, for example, the "peculium" arose in the eighteenth century trade in "indentured servants" between England and North America. The paper explores this finding and develops its implications for Roman economic growth.
Revisiting the historical context surrounding the development of the ultimate issue rule to inform its future in South African law of evidenceSource: Fundamina : A Journal of Legal History 22, pp 94 –117 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a6More Less
The controversy surrounding the issue whether or not mental health professionals in South Africa should offer opinion testimony that touches upon the ultimate-issue has been ongoing and remains unsettled. This controversy has left the exact place of the ultimate-issue rule in balance hence causing uncertainty. This uncertainty has impacted negatively on the advancement of opinion testimony by mental health professionals. One notable area that has been affected is the one pertaining to child sexual-abuse cases. The authors trace the historical foundations surrounding the development of the ultimate-issue rule. It is demonstrated that the rule finds its basis in justice systems with jury trials, with the aim of the rule having been to ensure that experts do not usurp the role of the jury. Historically, juries were not schooled in law hence the need to screen the evidence they received ensuring that experts' opinions did not awe them to a point of them relinquishing their decision-making powers. In this context, the unsoundness of the rule in non-jury systems such as South Africa's (where decisions are made by judges schooled in law) is underscored. It is highlighted that the policy considerations surrounding the development of this rule are not applicable to South Africa. Recommendations are made for its express abolition by way of statutory guidelines.
Of naval courts martial and prize claims : some legal consequences of commodore Johnstone's secret mission to the Cape of Good Hope and the "battle" of Saldanha Bay, 1781 (Part 2)Author J.P. Van NiekerkSource: Fundamina : A Journal of Legal History 22, pp 118 –157 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a7More Less
Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. These matters are considered in two parts, of which the first appeared in (2015) 21(2) Fundamina 392-456.
Van Dongen, EGD Contributory Negligence - A Historical and Comparative Study, Brill, Leiden (Ed.) : book reviewAuthor Paul J. Du PlessisSource: Fundamina : A Journal of Legal History 22, pp 156 –157 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a8More Less
This interesting study is concerned with one of those perennial problems of the civilian tradition, namely the rise of "contributory negligence" in cases of delict. Van Dongen traces the history of this notion from Roman to contemporary law. The book is divided into six chapters. Chapter 1 contains an introduction in which the main topic of study, the method adopted and the structure are all set out. Diachronic studies of an aspect of legal history are tricky and the method and scope sections are well worth reading. The author does a good job of limiting and justifying the choices made further on in the volume. It is particularly interesting to see the comments about Roman law and how one should not merely see it as the starting point in a long line of development.
Kaius Tuori Lawyers and Savages. Ancient History and Legal Realism in the Making of Legal Anthropology, Routledge (Ed.) : book reviewAuthor Philip ThomasSource: Fundamina : A Journal of Legal History 22, pp 157 –158 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2016/v22n1a9More Less
Tuori has the good fortune to have had the opportunity to study history, law and anthropology, which has equipped him to dive into the nouvelle vague of interdisciplinary research. In consequence, his latest book analyses the rise and fall of legal primitivism following the work of pioneers in a wide variety of disciplines. Focusing on the trilogy of sex, greed and violence, the narrative takes us from the Americas to Australia, Greenland, Africa and further. Greed is represented by the paradigmatic variations played on the theme of the development of ownership of land and contract; sex stands for the Dichtung und Wahrheit spun around matriarchy, promiscuity, polygamy and the "civilised" monogamy, while violence hovers in vendetta, feud, honour killings and blood revenge. Within the tales about these themes the reader meets old friends like the brothers Grimm, von Savigny, von Jhering, Fustel de Coulanges, Maine and Schiller, but is also introduced to a sparkling variety of new authorities such as Martius, Lonröt, Bachofen, Malinowski, Boas, Llewellynand Gluchkman to name but a few.
Author Ben GrieselSource: Fundamina : A Journal of Legal History 22, pp 159 –161 (2016) http://dx.doi.org/http://dx.doi.org/10.17159/2411-7870/2015/v22n1a10More Less
It is with great sadness that we heard of the passing away of Hendrik Jacobus Erasmus on 15 June 2016, an esteemed member of the Editorial Board of Fundamina and a frequent contributor of legal historical contributions to this legal journal. Hennie Erasmus was a man of many talents. He had a formidable reputation as academic, as author, as judge, and as historian. He was born on 10 January 1935 in Ladysmith, Natal. After matriculation at the Kroonstad High School in 1952, he obtained the degrees BA and MA (both cum laude) from the University of the Free State, followed by an LLB from the University of South Africa and a DLitt et Phil (cum laude) from Leiden.