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THE 4 DIFFERENT POLITICAL STRUCTURES IN ROME
AND THE 4 PHASES IN ROMAN LEGAL DEVELOPMENT
POLITICAL:
MONARCHY (753 BC – 509 BC)
 autocratic king
 rigid & formalistic
REPUBLIC (509 BC – 27 BC)
 2 consuls govern
PRINCIPATE (27 BC – AD 284)
 emperor governs
DOMINATE (AD 284 – AD 476)
 emperor autocratic ruler
LEGAL:
EARLY ROMAN LAW (753 BC – 250 BC)
 ius civile – applicable to Roman citizens only
 rigid & formalistic
PRECLASSICAL (250 BC – 27 BC)
 ius honorarium – applied alongside ius civile
 fair, flexible, lack of formalism
CLASSICAL (27 BC – AD 284)
 high point in legal development
 superior to any legal system – still felt today
POSTCLASSICAL (AD 284 – AD 565)
 decline in Roman legal science
 influence of vulgar law – RL influenced by Germanic law
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MONARCHY (753 BC – 509 BC)
POLITICS
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Romulus founds Rome and becomes first Roman king
All government power vested in the king
Last king expelled from Rome in 509 BC
SOCIETY
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Rome consisted of a small community – subsistence farming
2 Social classes come into existence: Patricians + Plebians
LAW
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Law and religion = intertwined
Law not accessible to the man in the street
THE REPUBLIC (509 BC – 27 BC)
POLITICS
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CONSULS
 govern Rome
 elected annually
SENATE
 advisory body of Elders
 their opinions became so NB that these were regarded = law
POPULAR ASSEMBLY
 represented all the ppl of Rome
 could promulgate laws
SOCIETY
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Rome’s citizens grow to 1 million
Time of great military conquests
Rome = business centre of ancient world
Society becomes very cosmopolitan
LAW
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450 BC = codification of the 12 Tables

367 BC = office of Praetor
 administration of justice
 praetor urbanus : ius civile - Roman citizens only
: ius honorarium – civile infl by gentium
 praetor peregrinus : ius gentium – foreigners and Roman citizens
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 jurists = started to develop into an independent group
THE PRICIPATE (27 BC – AD 284)
POLITICS
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EMPEROR
 Governed Rome
 Consolidated all state power in himself
POPULAR ASSEMBLY
 Lost its importance
 Emperor had the true legislative power
SENATE
 Became an instrument of the emperor, acted on his wishes
EMPEROR AND HIS OFFICIALS
 Tool over the role of the Republican magistrates
SOCIETY
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Rome = economic centre of the world
Early Principate characterized by peace + prosperity
Cosmopolitan society
LAW
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PRAETOR
 AD 130 = end of the praetor’s contribution to legal development,
subsequent praetores were bound to the AD 130 codification of praetorian
edicts

JURISTS
 Contributed immensely to legal developments
 Functions:
- giving advice
- teaching
- assistance: legal transactions
- assistance: court
- interpretation
- writing
 5 great jurists:
- Gaius
- Papinian
- Ulpian
- Paul
- Modestinus
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
THE EMPEROR
 Became the source of law
 Enacted different forms of legislation:
- edicts
- decrees
- rescripts
- mandates
THE DOMINATE (AD 284 – AD 476)
POLITICS
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Emperor = autocratic ruler
Empire divided into Eastern and Western Roman Empire (AD 395)
Western Roman Empire fell (AD 476)
LAW
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Postclassical era of Roman Law
Decline in legal science
Simplification of classical works
 Epitome Gai
 Sententiae Pauli
Statute of Citation
JUSTINIAN’S CODIFICATION:
THE CORPUS IURIS CIVILIS
REASONS FOR CODIFICATION
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Systematise the law
Eliminate outdated legislation
Make the law accessible to everybody
Eliminate inconsistencies
4 COMPONENTS OF THE CORPUS IURIS CIVILIS
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Codex
Digest
Institutes
Novellae
THE IMPORTANCE OF THE CORPUS IURIS CIVILIS
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It provides modern society with a version of Roman law as it was at the
end of its development
Influenced the legal systems of many countries
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Its one of the most complete sources of Roman law
It came into being after the classical period when Roman law was at the
peak of its development
FACTORS WHICH PLAYED A ROLE IN THE SURVIVAL OF ROMAN LAW IN THE
WEST BETWEEN THE 5TH & 6TH CENTURIES
THE “ROME IDEA”

Refers to the Germanic ppl’s admiration of Roman culture, particularly its legal
system and ordered government
THE CODIFICATION OF GERMANIC LAW
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Leges Barbarorum – recorded or written tribal laws of the Germanic ppl
NB because:
 they are sources of Germanic law
 they played a role in the survival of Roman law after the fall of the Western
Roman Empire (written by clerics schooled in Roman law)
ENACTMENTS (LEGISLATION) OF THE FRANKISH KINGS
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Capitularia = pieces of Frankish leg by Frankish kings
Contained Roman rules (written by clerics schooled in Roman law)
THE PERSONALITY PRINCIPLE
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Each person lived according to the law of his or her own tribe
Leges Romanorum = recorded Roman law by Germanic ppl for Romans who lived
in Germanic territories. Vulgar Roman law. Roman law reflecting a Germanic
influence
The survival of Roman law in the West was due in part to the codifications of
Roman law by the Barbarians
Examples: Lex Romana Visigothorum
THE ROMAN CATHOLIC CHURCH
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In Roman times, the Catholic Church in the West was built on a Roman legal
foundation:
 Internal relations in the Church were governed by Roman law
 Special legislation was enacted by the Roman emperors with regard to the
Church and to church affairs
Canon law NB because:
 it served to temper the strictness of Roman law
 it became part of Roman-Dutch law which was brought to SA in 1652
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THE RISE AND SPREAD OF FEUDALISM
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Feudal law regulated the relationship between the feudal lord and the vassel
Led to legal diversity
Libri Feudorum = best known feudal law, incorporated into the Corpus Iuris Civilis
by jurists of the late Middle Ages
The feudal system contributed indirectly to the survival of Roman law during the
Middle Ages because it emphasized the territoriality principle
THE TERRITORIALITY PRINCIPLE
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Everyone living in a specific territory is subject to one law
Replaced personal or tribal law
Was influenced to a greater or lesser extent by Roman law
THE GLOSSATORS (BOLOGNA, ITALY)
TECHNIQUE
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Exegetical / Interpretive method of study
Corpus Iuris Civilis
Explanatory “glosses” in the margin and between lines of text
NB GLOSSATORS
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Irnerius
Vacarius
Accursius
IMPORTANCE OF THEIR WORK
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Restored Roman law
Made a scientific study of Roman law
Responsible for the spread of Roman law
CRITICISM
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Disregarded contradictions in the text
Lacked systematization
Lacked formal perspective
Disregarded the needs of the practice
Accursius made bad choices in selecting texts for the Glossa Ordinaria
 Glossators = 1st in the West to study law scientifically, their studies led to the
spread of Roman law to other parts of Europe, resulting in the survival of
Roman law in the West 
_____________________________________________________________________
THE ULTRAMONTANI (FRENCH LAW SCHOOL – ORLÉANS)
TECHNIQUE
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Dialectical
Corpus Iuris Civilis = source book for critical discussion
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Goal was to incorporate Roman law into contemporary practice
More hands-on than Glossators – creating practical legal system
NB ULTRAMONTANI
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Revigny
Bellaperche
ULTRAMONTANI + CANON LAW
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Revigny & Bellaperche = worked out rules for reception of canon law into
secular law:
 Canon law + Roman law each had their own sphere of application
 Canon law (by virtue of its fairness) could be used to temper the
severity of Roman law
IMPORTANCE OF THEIR WORK

Were the 1st scholars to give official recognition to canon law and to lay
down rules for the reception of canon law into secular law
THE COMMENTATORS
TECHNIQUE
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Scholastic
Interpret glosses of Copus Iuris Civilis
Synthesis between Roman law, Germanic law, canon law and town law
NB COMMENTATORS
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Cinus
Bartolus (greatest medieval jurist)
Baldus
IMPORTANCE OF THEIR WORK
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Laid the foundations for the school of natural law
Bartolus laid the foundation for modern private international law
Considerable contribution in the field of private law
Created a practical legal system that was received throughout Europe
The Roman law which they commented on was the Roman law which was
later received into the Germanic customary law of the Netherlands, later
forming part of Roman-Dutch law which was brought to SA in 1652
CRITICISM
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Gave undue weight to the majority opinion
Poor Latin
Followed the Glossa Ordinaria to such an extent that they often ignored the
original text, thus losing historical perspective
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THE COMMENTATORS & CANON LAW
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Influenced the creation of the European common law (Ius Commune)
Cinus, Bartolus and Baldus = developed rules for application of canon law
 Canon law and Roman law are two separate legal systems which should
be kept apart
 3 instances in which canon law had to be applied instead of Roman law
 in purely spiritual matters
 in matters concerning the Church
 in those cases where the appl of Roman law would amount to sin
THE FRENCH HUMANISTS
TECHNIQUE
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Opposed the attitude of the commentators
Disliked the crude language of the Middle Ages
Used elegant Latin aka “the elegant school”
Reconstruct works of the classical Roman jurists
Rediscover Roman law as it was before Justinian’s codification
Study of law as a system
Corpus Iuris Civilis & Roman law sources preceding it
Aim was to go back to the original sources (did not use Glossa Ordinaria or
commentaries of the Middle Ages – ultramontani or commentators)
NB HUMANISTS
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Cujacius
Donellus
IMPORTANCE OF THEIR WORK
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Spread of Roman law
Very high standard
Systematization of legal material = of great value
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CRITICISM
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Little or no influence on practice
Ignored the whole course of development of the law
Lacked historical perspective
THE HUMANISTS AND CANON LAW
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Donellus = separation of canon law and secular law, tried to limit appl of
canon law
Duarenus = favored the study of canon law, this approach followed in
practice
THE CODIFICATION OF FRENCH LAW
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French civil law (private law) codified by Napoleon in 1804
Code Civil = huge influence on legal systems of many European countries
USUS MODERNUS PANDECTARUM
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New school of law in Germany
Theoretical-practical line of thought
Roman law as it was still in use and was applicable
Described Roman law as it was applied in practice
Carpzovius II : founder of German national law, Bartolus of Germany
THE HISTORICAL SCHOOL
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In reaction to the doctrine of the law of nature
Did not recognize any permanent and unchangeable law
Law developed to suit the needs of the nation
Considered the law to be changeable
Roman law studied merely for its scientific interest
Savigny: leading figure of this school
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IMPORTANCE OF THE EUROPEAN IUS COMMUNE
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Legal systems of many Western European countries share several similarities
Lawyers from these countries may consult the legal system of another country which formed
part of the European ius commune to find a solution
ENGLAND

OVERVIEW OF THE DEVELOPMENT OF ENGLISH COMMON LAW
 3 Influences on the development of English common law:
 William the Conqueror (attempted to unite England, uniform
national legal system)
 A restricted reception of Roman law (Eng CL already well-est
legal system)
 The 3 courts (development of English common law)
 King’s Court
 King assisted by locals: beginning of the jury system
 Civil Procedure: the “writ system”
 Court of Chancery
 Law of equity – supplemented the rigid common law
 Court of Admiralty
 Piracy and all maritime and commercial cases
 Law Merchant (International commercial law)
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RESISTANCE TO ROMAN LAW INFLUENCES
 Resistance by the legal profession
 Resistance by the king Page 10 of 18
 Resistance by the aristocracy
INFLUENTIAL EARLY ENGLISH LEGAL SCHOLARS
 Sir Edward Coke
THE NETHERLANDS
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Seven Provinces:
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Holland
Zeeland
Utrecht
Gelderland
 the Ommelands
 Friesland
 Overjissel
Reception in 2 stages: Early Reception & Reception Proper
Law codified in 1809 – based on the Code Civil (Bonaparte)
Roman-Dutch law transplanted into SA in 1652 – Jan van Riebeeck
 Developments in Roman-Dutch law in Netherlands affected the way the
law was applied in SA
 Civil Code of the Netherlands does not apply in SA
ROMAN-DUTCH LAW

2 Forms of interpretation
 Narrow Interpretation
 Roman-Dutch law as law of Holland applied in the 17 & 18th centuries
 Roman law as amended by legislation and customary law of Holland
 Broad Interpretation
 Acknowledges narrow interpretation + includes Western European CL
 Includes broader influence in the construction of Roman-Dutch law
NARROW INTERPRETATION
 Roman law
 Customary law
 Legislation
BROAD INTERPRETATION
 Roman law
 Customary law
 Legislation
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 European ius commune
 Canon law
 Roman law

In Du Plessis v Strauss, the SCA (then Appellate Division) decided in favour
of the narrow interpretation of RD law, pointing out that the law of Holland:
 Must be seen in its historical perspective
 Formed part of the European ius commune &
 The law of  other Dutch provinces played a role in  dev of the law of Holland
SOURCES OF ROMAN-DUTCH LAW
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The old writers
○ province in which they lived
○ period in which they worked
○ type of work written by the author
○ influence on SA legal practice
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Legislation
Court Decisions
Opinions
Custom
NB JURISTS – 17TH CENTURY HOLLAND
GROTIUS
 Inleidinge
- first conscious description of Roman-Dutch law
 De Jure Belli ac Pacis
- public international law, law of nature + legal philosophy
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SIMON VAN GROENWEGEN
 Notes on Grotius Inleidinge
- remedied defects
 Tractatus
- indispensable authority on Roman-Dutch law of the 17th century
- it indicated where the Corpus Juris Civilis was still applicable
SIMON VAN LEEUWEN
 Het Rooms-Hollandsche Recht
- useful reference work, in conjunction with notes by Decker
- wrote in Dutch, thus being more accessible to SA
- was the first to use the term “Roman-Dutch law”
JOHANNES VOET
 Commentarius
- commentary on the Pandects
- deals with Roman law with the addition of the existing law of his time
 Humanistic approach to Roman law
 Comprehensive review of the whole field of Roman-Dutch law
 Influence felt throughout Europe and SA
OTHER NB JURISTS IN 17TH CENTURY
FRIESLAND:
 Ulrich Huber
- Praelectiones
UTRECHT:
 Matthaeus II
- De Criminibus
 Paulus Voet
- De Statutis
NB JURISTS – 18TH CENTURY NETHERLANDS
JOHANNES VOET
 Wrote in both the 17th & 18th centuries
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CORNELIS VAN BIJNKERSHOEK
 Quaestiones
- Deals with public international law
 Observationes
- Very NB because it showed how the courts arrived at their decisions
DIONYSIUS VAN DER KEESSEL
 Theses Selectae
- The last outstanding work in the field of Roman-Dutch law before SA was
separated from the Netherlands
JOHANNES VAN DER LINDEN
 Koopmans Handboek
- was the last treatise (thesis) on Roman-Dutch law as it existed in Holland
before the codification of the law of the Netherlands
- in SA = given more recognition than it deserves
IMPORTANCE OF THE OLD WRITERS (IN GENERAL)

Old writers are the scholars who assimilated Roman law into the customary laws of
Holland and the other provinces of the Netherlands – they wrote about Roman-Dutch law

Some demonstrated how Roman law was applied in practice

We are very fortunate in being able to read what Roman-Dutch scholars of that time had
to say about the application and development of the law, something that is not possible
with indigenous African law
THE DEVELOPMENT OF THE SA LEGAL SYSTEM BEFORE THE 1990’S
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ROMAN-DUTCH LAW (1652 – 1795)
AUTHORITIES THAT PLAYED A ROLE IN THE ADMINISTRATION OF THE CAPE:
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The States-General
○ Part of the government of the United Netherlands
The VOC and Here XVII
○ Dutch East India Trading Company (VOC) (not an organ of state)
○ Group of 17 Dutch gentlemen = directorate of VOC
Governor-General-in-Council at Batavia
○ In charge of VOC HQ in Batavia
Governor-General-in-Council at the Cape
○ Directly responsible to the above
ADMINISTRATION OF JUSTICE:
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Governor in charge of law & order
○ Only one “court”
○ Artycelbrief = document regulating conditions of employment (of VOC)
Raad van Justitie
○ A court est in 168
○ Chief executive = final say all admin matters, including legal matters
Fiscal
○ Prosecutions (scheister) (received percentage of every fine he issued)
○ Admin of justice = primitive and badly ordered
SOURCES OF LAW:
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Legislation
○ Agencies which had legislative power
- 4 authorities ↑
○ No authority to issue Placaeten
- The States of Holland
The old writers on Roman-Dutch law
Judicial Decisions (no binding authority)
Custom
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ENGLISH LAW (1795 – 1827)
 First British occupation of the Cape: 1795 – 1803
○ Maintenance of judicial system established during Dutch (Batavian) rule
○ High Court: jurists not always trained, Governor = final auth in civil+crim matters
 Second British occupation of the Cape: 1806 – 1961
○ Changes in administrative justice:
- Court of Criminal Appeal instituted
- Circuit Courts intro
- Courts were opened to everybody (had previously been closed to gen public)
- Changes to Criminal Procedure
 First Charter of Justice promulgated: 1827 (came into effect in 1828)
○ NB changes to the court structure and in formal law (law of evidence and proc)
- Supreme Court of the Colony of the Cape of Good Hope
- Privy Council (highest court of appeal in all matters)
- Jury System (discontinued in 1969)
- Judges (had to be recruited from among advocates of Eng, Ire, Scot)
- Advocates (same as above, also those with law doctorate from Oxf, Cam etc)
○ Paved the way for the reception of English law into the existing law
MECHANICS OF THE RECEPTION PROCESS OF ENGLISH LAW IN THE CAPE

Viscount Goderich: gradual assimilation of English law into the existing law

Factors contributing to the reception of English law:
 English Institutions
- Education
- Language
- Commerce
 Judiciary
- Inns of Court tradition (req that advoc pass exams in Eng CL to practice)
- Accessibility of English sources
- Stare Decisis (earlier decisions have binding authority)
 Legislation
- English law imported thru statutes

Some areas of law experienced both scientific and practical reception of English law
LEGAL DEVELOPMENT SINCE THE UNIFICATION OF SOUTH AFRICA IN 1910

LEGISLATION
- entire sections of English law directly incorporated into SA law without
regard to circumstance – big mistake, but later accepted, adapted and
amended

THE TEACHING INSTITUTIONS
- scientific Roman-Dutch approach

THE APPELLATE DIVISION
- contrib to unific of SA law and the creation of an independent legal system
- Purists: Roman-Dutch law to be applied in its pure form, free of English law
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
Pollutionists: English law solutions accepted where old-writers are silent
Pragmatists: steer a middle course between the 2 opposing views
Appellate Division takes pragmatic view
SOUTH AFRICAN LAW REFORM COMMISSION
- comparative legal material
THE HISTORY OF HUMAN RIGHTS IN SOUTH AFRICA

CONCEPT OF CONSTITUTIONALISM
 Government is obliged to act in accordance with the prescriptions/conditions
laid down in a constitution
 3 approaches to the principle of constitutionalism
- Complete Denial
- Partial Recognition
- Full Recognition
 3 Fundamental values of SA’s new constitutional order:
- human dignity
- equality
- freedom

TESTING CAPACITY OF THE COURTS
 Formal testing capacity
 Full testing capacity
[NO TESTING CAPACITY = CONSTITUTIONALISM COMPLETELY DENIED]
[FORMAL TESTING CAPACITY = PARTIAL CONSTITUTIONALISM RECOGNITION]
[FULL TESTING CAPACITY = FULL CONSTITUTIONALISM RECOGNITION]
UBUNTU:
◦ common humanity
◦ social justice + fairness
◦ tolerance, compassion, forgiveness
◦ aka African Humanism
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