Fundamina : A Journal of Legal History - latest Issue
Volumes & issues
Volume 22, Issue 2, 2016
The constitutional right to fair labour practices : a consideration of the influence and continued importance of the historical regulation of (un)fair labour practices pre-1977Author M. ConradieSource: Fundamina : A Journal of Legal History 22, pp 163 –204 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a1More Less
It is safe to state that the right to work - to provide labour in return for remuneration - has its origin in a person's right to existence. A person's right to physical and emotional existence is probably the most fundamental of all human rights. In primitive times this right was subdivided into seven categories: the right to fish, to hunt, to work land, to harvest, to associate, to be free from troubles and the right to loot. But an increase in the population on earth and a consequent decrease in natural resources led to the exchange of the first four rights (fishing, hunting, cultivation and harvesting) for a right where independent existence was lost forever: labour.
Author Elena GiannozziSource: Fundamina : A Journal of Legal History 22, pp 205 –231 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a2More Less
Définir en quoi consiste un standard en droit est une question délicate qui relève plus de l'épistémologie que de la science juridique. En dépit de la difficulté à définir le standard, le droit positif français emploie à plusieurs reprises cette technique, bien que l'apparition du mot "standard" en droit français soit très récente. Ce terme, qui dérive du vocabulaire anglais, apparaît en France au cours de la décennie 1920 dans un mouvement de réaction contre la méthode de l'école de l'Exégèse.
Le renvoi au bon père de famille fut sans doute l'une des utilisations les plus célèbres de la technique du standard. La réforme du 4 août 2014 l'a effacé au profit des expressions "raisonnable" ou "raisonnablement". Le législateur a maintenu la technique du standard en changeant simplement la référence: la raison se substitue alors au modèle du bon père de famille qui est considéré comme incompatible avec la parité entre hommes et femmes.
Author Jacob GiltaijSource: Fundamina : A Journal of Legal History 22, pp 232 –249 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a3More Less
The rise of the notion of "human dignity" as a basis for the modern conception of human rights is currently being hotly debated. As is the case with research into the historical roots of an idea of human rights in general, the origin of the notion is very much tied to its definition, for how one defines something also determines what its origins are and vice versa. For human dignity, this means distinguishing it from dignity as such, even though the line between the two notions seems arbitrary at best.
Author Jan F. MuttonSource: Fundamina : A Journal of Legal History 22, pp 250 –272 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a4More Less
Human dignity and human rights, land restitution, inequality, development and the protection of the environment continue to dominate the political agenda in our postcolonial society. These issues are not new, however; they have been recognised ever since the early days of colonisation when legal minds and philosophers identified them in their writings and explorers and travellers discussed them in their travelogues.
More than two hundred years ago, during the Age of Enlightenment, philosophers and legal thinkers such as John Locke in England, Jean-Jacques Rousseau, Mirabeau and Montesquieu in France and Thomas Jefferson in the United States stood up for civil liberties and human rights. Their views have been well summarised by Mirabeau in his Adresse aux Bataves where he refers to a number of political and civil rights, to religious freedom and a free press as "inalienable and imprescriptible rights without which it is impossible for humankind in any climate to preserve dignity, to secure development or to enjoy in tranquility the blessings of nature".
Author Tamas NotariSource: Fundamina : A Journal of Legal History 22, pp 273 –289 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a5More Less
Cicero delivered his speech in March 56 BC in defence of Publius Sestius, who was charged on the grounds of the lex Plautia de vi with acts of violence offending public order/public tranquillity. He convincingly proved that they were measures required by the situation of lawful defence. We need to make it clear: the speech can be considered primarily a brilliantly executed statement of one of the important fundamental postulates of Cicero's philosophy of the state rather than a lawyer's or orator's achievement. Pro Sestio is the first occasion on which Cicero, having returned from exile, was able to formulate his program of rethinking the idea of a res publica harrowed by civil strife and the preserving-renewing reorganisation of the state. In this speech Cicero clearly takes a stand for Sulla's "constitution", that is, for what he interpreted as Sulla's constitution: An argument for strengthening the position of the senate meant to govern the state. His defendant was acquitted, owing not only to the brilliant handling of the facts of the case, but most probably also to the political program presented in the speech with such exhaustive details: A captivating pathos that won his audience's approval.
Author David PugsleySource: Fundamina : A Journal of Legal History 22, pp 290 –296 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a6More Less
A good conference has interesting papers, followed by a lively discussion, stimulating new ideas and theories. The 2015 conference of the Southern African Society of Legal Historians was a good conference. My own paper is being published elsewhere, but the discussion at that conference about the law of duelling stimulated the following thoughts.
Duel comes from the Latin, duellum, a variant of bellum, war. A duel is a private war. Duelling was (and still is) illegal. It is a breach of the peace. And anyone caught about to fight a duel might be taken before the magistrates and bound over to keep the peace, normally for one year. The security required was sometimes very high. In 1798 when Lieut Bromley, of the Marines, and Mr Palmer, of Ayre street, Piccadilly, were caught planning a duel near Upnor Castle, Kent, Palmer was required to give security of Â£2,000 (Â£1,000 himself, and two sureties of Â£500 each), because he would not give his word of honour that the matter would not be pursued. Bromley was bound over in the sum of Â£500 and two sureties of Â£250 each. (Palmer had horsewhipped Bromley for sending a very impertinent letter to his wife.)
Author Saul Tourinho LealSource: Fundamina : A Journal of Legal History 22, pp 297 –309 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n21a7More Less
The consequences of South Africa's apartheid era are still visible in terms of their effects on the South African economy, and in terms of the racism which has eroded various human rights. Apartheid may be seen to be the result of arrogant and racially discriminant economic development by the white minority, which resulted in inequality and injustice. The implementation of public economic policies, where the end justifies the means, creates the opportunity to use scapegoats in order to justify economic injustices to the public.
Author J.P. Van NiekerkSource: Fundamina : A Journal of Legal History 22, pp 310 –346 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v22n2a8More Less
Author Liezl WildenboerSource: Fundamina : A Journal of Legal History 22, pp 347 –364 (2016) http://dx.doi.org/0.17159/2411-7870/2016/v22n2a9More Less
In Southern Africa a movement known as the Great Trek commenced in 1836. It entailed that groups of people with their families (generally known as the Voortrekkers or simply the Boers) left the Cape Colony and migrated north beyond the Orange River with the purpose of establishing an independent state free from British rule. After the battles at Marikwa in November 1837 and Blood River in December 1838, the main Voortrekker movement split into two with some Boers settling in the area east of the Drakensberg (later Natal) and others settling in the area west of the Drakensberg where they established the towns of Potchefstroom and Winburg (in what would later become the Zuid-Afrikaansche Republiek - or ZAR for short - and the Orange Free State respectively). No longer a nation on the move, the needs of society changed; it now required more than mobile or emergency institutions.
Lezioni 1930 - 1932. Scuola di Diritto Romano e Diritti Orientali raccolte da Károly Visky, Roberto de Ruggiero, Salvatore Riccobono & Filippo Vassalli : book reviewSource: Fundamina : A Journal of Legal History 22, pp 365 –369 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v21n2a10More Less
This book was recently published, in Italian, by the Faculty of Law of the University La Sapienza of Rome. It was edited by Professor Gàbor Hamza (Professor at the Eötvös Loránd University, Budapest) and presented (in 2015) at the prestigious Casa Editrice Jovene di Napoli. It is based on lectures presented during the early 1930s by outstanding Italian Romanists (Vassalli, De Ruggiero and Riccobono) in the frame of the Scuola di diritto romano e diritti orientali - the Scuola can be regarded as an institution at the highest level of postgraduate studies of Roman law. The book, containing the materials of these lectures (courses), is based on the manuscript of Kàroly Visky, whose scientific oeuvre made him one of the internationally most esteemed Hungarian Romanists.
DIGESTA SEU PANDECTAE tomus 1 liber 1-XV fragmenta selecta. DIGESTA NEBOLI PANDEKTY svazek 1 kniha 1-XV vybrané čàsti, Michal Skřejpek (Ed.) : book announcementSource: Fundamina : A Journal of Legal History 22, pp 370 –373 (2016) http://dx.doi.org/10.17159/2411-7870/2016/v21n2a11More Less