Notes on all the work related to Legal History in Introduction Law 171.
Notes were made from slides and lectures and cover the material discussed in class.
INTRODUCTION TO LAW 171 – LEGAL
HISTORY SLIDES AND CLASS NOTES
ERNST PIETERSE
WEEK 1 – BACKGROUND
STEARNS PN: “WHY STUDY HISTORY?”
Stearns says that when looking at any field of study, it must be justified – same with history.
According to Stearns history is very helpful, actually indispensable.
Results or products of history is less tangible, obvious or immediate.
“History should be studied because it is essential to individuals and to society, and because it harbours
beauty.”
Stearns rests the definition of history’s utility on 2 fundamental facts
1. History helps with understanding people and societies
a. History “offers a storehouse of information about how people and societies behave
2. History helps with understanding change + how societies came to be/the creation of societies we
live in
a. “the past caused the present, and so the future”
b. Studying of history gives a grasping of how things change, allows for comprehension of
factors that cause change, and helps one understand how elements of an institution (or a
society) persists despite change.
i. Always have to look at earlier occurrences/ to determine for instance what gave rise
to a war or why certain rights and values are entrenched in a country’s Constitution.
Or what happened in the history that resulted in a new democratic order for
instance.
3. Other reasons according to Stearns
a. Important in our owns lives
b. History contributes to moral understanding
c. History provides identity
d. Studying history is essential for good citizenship
DU PLESSIS: OTHER REASONS FOR STUDYING HISTORY
History explains the present character of law
History facilitates necessary change
Legal history living law -> uncodified legal system
Connection with other countries
o SA share a history with several countries, especially Western European countries. Especially
countries where Roman Dutch law was also applicable.
STEARNS PN: SKILLS OBTAINED BY HISTORY
Ability to assess evidence
Ability to assess conflicting interpretations
Experience in assessing past examples of change
,STEARNS PN: WHAT TYPE OF HISTORY ?
External history
o Focus primarily on historical facts and events of legal interest
Historical method:
o SA law depends to a large extent on the common law developed during the course of
history.
o Modern day jurists will often have to research the historical origin, growth and development
of particular legal rules and legal notions, to understand them fully
WEEK 1 – GENERAL
SOUTH AFRICAN COMMON LAW
Literally common law means the “law common to a particular geographical region and/or group of
people.”
Basis for SA common law is Roman Dutch Law
Common law in the south African context is one of multiple sources of law
SA common law is contained in and amended in case law, legislation and customs.
The term Roman Dutch Law is, however, ambiguous – there are two approaches
THE NARROW APPROACH TO COMMON LAW
17th and 18th century Roman Dutch Law of the province of Holland
According to the narrow view of the term SA common law, the other provinces of the Republic of the
Netherlands, don’t carry the same weight of as the law of the province of Holland.
According to authors such as Van der Vyfer & Van Zyl; confirmed by Appeal Court in Bank of Lisbon v
De Ornelas
THE BORAD APPROACH TO COMMON LAW
Refers to the law of the whole of the Republic of the Netherlands or even a European ius commune,
with Roman law as its basis
Ius commune refers to the law of the whole of the greater Netherlands, and not only one province. Ius
commune literally means “common law.”
Broad approach is seen as the more correct approach, and is preferred by South African legal
historians
SOUTH AFRICAN VS ENGLISH COMMON LAW
English “Common law” is the law developed by English courts, casuistically.
The law that was developed by the English courts, are also known as “Common law”. But it is not the
same as the RDL in SA.
It also does not refer to the
historical European ius commune. The English “Common law” forms the basis of Anglo-American law,
also known as civil law.
SA common law was however influenced by English common law.
o To a very limited extent
SA law is related to our civil law legal tradition
o And the subsequent distinction between public law and private law
o Anglo-american common law does not necessarily have this distinction
, “Common law” = English; “common law” = SA
WEEK 1 - COCKRELL A: “STUDYING LEGAL HISTORY IN SA”
Professor Cockrell posed the question: “Why should South African lawyers be concerned about legal
history?”
Then he reformulates the question: and asks : “Why should we find it necessary to look back over our
shoulders at a time when South African law is rolling forward at a frantic pace?”
He then uses the Biblical Analogy of Lot’s wife
Holmes J/R: Ex party De Winnaar 1959 (1) SA 837 D-E
o “The original sources of Roman-Dutch law are important, but exclusive preoccupation with
them is like trying to return an oak to its acorn. It is looking ever backwards. Lot’s wife looked
back. Our national jurisprudence moves forward where necessary, laying aside its swaddling
clothes.”
Prof Cockrell says then that he will refer to the issue here as the problem of Lot’s wife and would like
to offer 3 responses to the problem of Lot’s wife. Says that his first two responses is insufficient in
various ways, but the third response offer a satisfactory and appropriate retort to the problem of
Lot’s wife
COCKRELL’S 3 POSSIBLE ANSWERS TO THE PROBLEM OF LOT’S WIFE
1. Studying of past: own sake; political loyalty of citizens, due to tradition & the conservation of the
legal order.
a. The problem with this ? It is a cryptic summary of conservatism
2. Studying of past for instrumental reasons
a. Problem: Law not immune against change: coherent
b. Strategy of “revival”
3. Look backwards in an attempt to understand how we arrived to where we are
a. important point: past does not justify itself; not assume that solutions to current day
problems are to be found in the past
b. Understanding the past: intellectual first step; intellectual first step; attempt to solve present
problems in innovative ways
c. Satisfactory response to the problem of Lot’s wife
d. Past will no longer justify itself because it is the past. Past must now be justified i.t.o a
commitment to substantive constitutional values.
SEE TUTORIAL 1 ON THE COCKRELL AND STEARNS ARTICLE
WEEK 2 – INFLUENCES OF SOUTH AFRICAN LEGAL HISTORY
HISTORICAL FUNCTION OF LAW
Law should be studied in context
o Historical context helps us understand the law.
Rules are necessary to secure order and resolve conflict
The most primitive communities had rules according to which they established and regulated order
and resolved conflict. Rules often based on custom or religion and they were fairly simple. These
customs and rules were later developed, and they formed the basis of different legal systems we have
today.
Roots of modern SA law:
o Roman Law
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