Mindmap

1.General Introduction

Dee Morais FLS1501 NQF5 Englisch

Inhalt der Mindmap

LEGAL HISTORY
- Internal History: origins and development of legal rules and principles under external influence
  - Rules & Principles
- External: Traces sources & factors which have contributed directly/indirectly to the dev of a legal system
  - political, constitutional, sociological, economic & religious factors contributed to dev of legal system
  - *NB = sheds light on internal hist. eg. influence of cannon law explains rules/principles of law of ccontract
- SA Law not codified: no comprehensive written version of law that has the force of legislation
  - Search all sources of law:
    - Court decisions
    - Legislation
    - Common law
      - Centre around which other sources that generate law revolve
      - In SA = Roman-Dutch law as influenced by English law
    - Indigenous African law
    - Customary law
ORIGINS OF THE LAW
- Western Component
  - Roman-Dutch & English Law
  - Foundation starts with foundation of Rome in 753 BC/8th Cent BC
  - 4th Cent AD Roman Empire (RE) split into East & West RE
    - East RE traced until death of Justinian in 6th Cent AD
  - Trace Eng law to 11th cent AD
  - Common law *NB
  - common law *NB
- Indigenous Component
  - Indigenous African Law
  - Earliest African history = preliterate therefore it has existed before time immemorial
- Universal Component
  - Human rights: Fundamental Rights
  - Human-rights = Traced back to rise of natural law theory dev by Greek & Roman thinkers + early Christina church fathers from 4th Cent AD
  - Human rights law = rise of the natural-law theory dev by Greek & Roman thinkers + early Christian church fathers before 4th Cent AD
- Religious legal systems
  - canon law: law of the Catholic church
  - Islamic law recently has influenced our law
- SA Legal system = hybrid due to characteristics of R-D, Eng & Indig Laws
- Religious legal systems
  - Canon law = Catholic church
  - Islamic law
    - Being investigated by the SA Law Reform Commission to integrate it into SA law of marriage
RECEPTION PHENOMENON
- Reception
  - Willing adoption/absorption of rules, principles & institutions of a legal system into an existing legal system
    - In complexu reception = reception of an entire Legal system
    - E.g. Eng law in SA; reception of HR into SA (Bill of Rights)
    - E.g. Reception of Roman law in WE: 4 phases
      - 1. Pre-reception/Infiltration, 5th Cent AD = few Roman rules were chosen & randomly incorporated into Germanic Customary law - Sporadic. Started in 5th Cent when Germanic tribes adopted Roman idea of individual land ownership.
      - 2. Intellectual "rediscovery" of Justinian's Roman law by Glossators: 12th Cent AD, Law School of Bologna, Italy
      - 3. Early reception phase= scientific study of Roman law: 13th & 14th Cent AD
      - 4. Reception proper = 15th & 16th Cent AD. Roman system inc into legal system of various countries as part of common law
      - Practical reception
        Reception of actual rules
      - Scientific reception
        Reception of the framework, concepts, categories, principles, divisions
      - Also received in Louisiana, Quebec, Japan, Egypt & South America
- Transplantation
  - Intro of a legal system into a territory which has no legal system
- Imposition
  - Impose a legal system on a territory which already has a legal system - against the will of the local inhabitants
    - E.g. R-D law on indig law
CHRONOLOGICAL ORDER OF EVENTS
- 753 BC: Foundation of the city of Rome
  - Influenced by Germanic law (Holland) & Canon law
- BCE: Before Common Era: Before year Nil
- CE: Common Era: After year Nil
  - Considered to be more respectful to other religions
- BC: Before Christ
- AD: Anno Domini: "in the year of our Lord"
  - Used until 19th Cent; Used in this module
- 4** BC: Beginning of the Republic
- AD 3** Invasions of the Germanic tribes — the Roman Empire starts declining
- AD 395: Division of the Empire into the E & W Empire
- Ad 476: Fall of Roman Empire
- AD 500: Germanic Rule of WRE
- Emperor Justinian of ERE has Roman law codified in Corpus Iuris Civilis