PVL1004F: South African Private Law – Systems and Context
Part 2
TOPIC 1: A BRIEF INTRODUCTION TO THE HISTORY OF SA LAW
(I) Roman Roots
The Roman World
o 4 periods of the history of the Roman world:
- Monarchy (753BCE – 510BCE).
- Republic (510BCE – 30BCE).
- Empire Principate (27BCE – 284CE).
- Empire Dominate (284CE onwards).
o Important events in Roman history:
- Founding of mythical Rome (753BCE).
- Roman victory in the 2nd war against the Carthaginians (3rd century BCE).
- Assassination of Julius Caesar (44BCE).
- Battle of Philippi (42BCE).
- Caesar Augustus (Octavian) and Mark Anthony v Brutus and Cassius.
- Battle of Actium (27BCE). Caesar Augustus v Mark Anthony and
Cleopatra, Queen of Egypt.
- Important constitutional reforms (27BCE) make Augustus princeps = first
citizen. This was the unofficial beginning of the Roman empire.
- Several centuries of consolidation followed.
- Hadrian’s Wall (120CE) marks off the Northern-most border of the
Scotland Empire – Spain in the West, the Red Sea in the East and the
North African provinces in the South.
- Stability during this time allowed law, as an academic
discipline/interpretive system to flourish.
- A vast imperial bureaucracy, including administrative law, emerged.
- Increased political unrest (220CE).
, - Founding of Constantinople (330CE).
- Roman Empire was divided into the East and West (395CE).
- All Rome’s external borders came under pressure from migrating people,
moving West across Russia into Europe and down into Italy.
- Rome sacked by Visigoths (409/410CE).
- Western Empire falls (466CE).
- Decline in quality of life on almost every metric.
- The Eastern Empire was a continuation of the Roman Empire, referred to
as the Byzantine Empire, and reigned (527CE – 565CE).
- The conquest of Constantinople by the Ottoman Empire, and the end of
the Byzantine Empire.
Law in Rome
o Periods in the evolution of Roman law:
- Archaic (from the monarchy – 100BCE). The Twelve Tables (450BCE).
- Formative (100BCE – 100CE).
- Classical (100CE – 220CE).
- Post-Classical/Justinianic (220CE – 565CE).
o Sources of Roman law:
- Gaius Institutes = “The laws of the Roman people consist of leges,
plebiscites, senatusconsults, imperial constitutions, edicts of those
possessing the right to issue them, and the answers of the learned.”
- Praetor’s Edict = A document issued annually by the Urban Praetor (the
magistrate in charge of civil Roman law). It contained quasi-legislative
provisions and numerous formulae (specimen pleadings for litigation).
Praetor’s general function was to issue the Edict and their particular
function was presiding over litigation. The ability to change the Edict
allowed the law to develop quickly with social change. The Edict was
then codified by jurist Julian (the Edictum Perpetuum, early 2nd century).
- Juristic writing = A substantive source of law. Forms: Monographs,
commentaries, textbooks and problematic literature. Jurists were
advisors to the Praetor, judges and litigants. Classical jurists: Gaius,
Julian, Celsus, Paul, Ulpian and Papinian.
,o Character of Roman law:
- Was generally casuistic (most juristic literature was commentary on the
Praetor’s Edict, which was unsystematic and responded to social
pressures).
- However, Gaius’s Institutes were a relatively abstract, systematic
account of the law, according to substantive categories (property,
succession, contract and delict).
o Cessation of juristic activity during the post-classical period:
- Most law-making was done by the Emperor.
- The Byzantine Emperor Justinian began work on the Corpus Juris Civilis
(CJC) = A compilation of classical and post-classical sources compiled
under the auspices of the Tribonian (Minister of Justice). It consisted of:
(1) Institutes: A 2nd edition of Gaius’ Institutes, largely retaining the
original structure and content, with some minor changes to bring it
up to date. Book 1 is substantive division into persons, book 2 is
things (property, succession, obligations), book 3 is actions (including
some criminal law) and book 4 (delict).
(2) Digest: A library of classical jurists’ writings in 50 books, divided into
multiple titles. It was composed eccentrically (Bluhme, 19th century).
Classical texts were placed in titled pigeonholes, ordered roughly
according to the Praetor’s Edict and lightly edited before publication.
Statement of classical law was not systematic and there were
problems during interpretation (compilers changed the classical text).
(3) Code: Similar form to the Digest, but made up of excerpts from
Imperial constitutions.
(4) Novels: Imperial enactments, after the issuing of the Code (534CE).
- The CJC had little impact in the East. The Greek paraphrases: Paraphrasis
(Institutes), Basilica (Digest, with updates and commentary) and
Hexabiblos (post-Justinianic laws), were popular.
- “Barbarian codes” existed in the West (e.g. Lex Romana Visigothorum
was an attempt to state the elementary rules of Roman private law for
application to Romans living in Visigoth conquered territory).
, (II) Medieval Reception of Roman Law
o After the Dark Ages in Western Europe (500CE – 1000CE), the Glossators
flourished at Pavia, Bologna, Northern Italy (1100CE onwards).
o This was stimulated by the discovery of the CJC at Pisa.
o Their principal method was exegesis through glosses.
o Their technique was to read a passage aloud for students to copy and then
deliver an excursus explaining the Justinian’s text.
o The Glossators were Irnerius and the “four doctors” – Martinus, Hugolinus,
Jacobus and Bulgarus, Johannes Bassianus and Azo.
o Accursius compiled the Great Gloss/Gloss Magna/Ordinaria.
o Canon law = the ecclesiastical law of the Catholic Church (dealing with the
law of marriage etc.) was both complementary and contradictory.
o Doctrines of Roman law moderated in light of Christian moral principles.
o Roman law and Canon law were seen as parts of 1 discipline. Scholars were
doctors utriusque iuris (doctors of both laws).
(III) The ius commune, the Humanists and Roman-Dutch law
o The Glossators were succeeded by the Commentators (14th – 15th century).
o They took a more actively critical approach to the CJC, but remained
concerned with commentary/exegesis of Roman sources.
o Their analysis remained context free, treating Roman law as an ideal
system, independent of its historical origins.
o They brought into being ius commune = a combination of Roman law and
Canon law. It formed a common system of legal thought in Western Europe.
o French Humanists (16th century) were aware of the social, historical and
political context of Roman law and begun the “hunt for interpolations.”
o Wider cultural trends in Europe gave rise to greater regard for historical
context and linguistic accuracy.
o The rise of Roman-Dutch scholarship (Holland, 17th – 18th century)
combined ius commune with the rules from Germanic Customary law.
o Its sources were decisions of the highest court, the Hooge Raad, and
writings of law professors – including Hugo Grotius (introduction to Roman-
Dutch law) and Johannes Voet (commentary on the Digest).
