1.General Introduction

Dee Morais
Mind Map by Dee Morais, updated more than 1 year ago
Dee Morais
Created by Dee Morais about 6 years ago


Study Unit 1

Resource summary

1.General Introduction
    1. Internal History: origins and development of legal rules and principles under external influence


      • Rules & Principles
      1. 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
        1. *NB = sheds light on internal hist. eg. influence of cannon law explains rules/principles of law of ccontract
        2. SA Law not codified: no comprehensive written version of law that has the force of legislation
          1. Search all sources of law:
            1. Court decisions
              1. Legislation
                1. Common law
                  1. Centre around which other sources that generate law revolve
                    1. In SA = Roman-Dutch law as influenced by English law
                    2. Indigenous African law
                      1. Customary law
                  2. ORIGINS OF THE LAW
                    1. Western Component


                      • Roman-Dutch & English Law
                      1. Foundation starts with foundation of Rome in 753 BC/8th Cent BC
                        1. 4th Cent AD Roman Empire (RE) split into East & West RE
                          1. East RE traced until death of Justinian in 6th Cent AD
                          2. Trace Eng law to 11th cent AD
                            1. Common law *NB
                              1. common law *NB
                              2. Indigenous Component


                                • Indigenous African Law
                                1. Earliest African history = preliterate therefore it has existed before time immemorial
                                2. Universal Component


                                  • Human rights: Fundamental Rights
                                  1. Human-rights = Traced back to rise of natural law theory dev by Greek & Roman thinkers + early Christina church fathers from 4th Cent AD
                                    1. Human rights law = rise of the natural-law theory dev by Greek & Roman thinkers + early Christian church fathers before 4th Cent AD
                                    2. Religious legal systems
                                      1. canon law: law of the Catholic church
                                        1. Islamic law recently has influenced our law
                                        2. SA Legal system = hybrid due to characteristics of R-D, Eng & Indig Laws
                                          1. Religious legal systems
                                            1. Canon law = Catholic church
                                              1. Islamic law
                                                1. Being investigated by the SA Law Reform Commission to integrate it into SA law of marriage
                                            2. RECEPTION PHENOMENON
                                              1. Reception
                                                1. Willing adoption/absorption of rules, principles & institutions of a legal system into an existing legal system
                                                  1. In complexu reception = reception of an entire Legal system
                                                    1. E.g. Eng law in SA; reception of HR into SA (Bill of Rights)
                                                      1. E.g. Reception of Roman law in WE: 4 phases
                                                        1. 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.
                                                          1. 2. Intellectual "rediscovery" of Justinian's Roman law by Glossators: 12th Cent AD, Law School of Bologna, Italy
                                                            1. 3. Early reception phase= scientific study of Roman law: 13th & 14th Cent AD
                                                              1. 4. Reception proper = 15th & 16th Cent AD. Roman system inc into legal system of various countries as part of common law
                                                                1. Practical reception
                                                                  1. Reception of actual rules
                                                                  2. Scientific reception
                                                                    1. Reception of the framework, concepts, categories, principles, divisions
                                                                    2. Also received in Louisiana, Quebec, Japan, Egypt & South America
                                                                2. Transplantation
                                                                  1. Intro of a legal system into a territory which has no legal system
                                                                  2. Imposition
                                                                    1. Impose a legal system on a territory which already has a legal system - against the will of the local inhabitants
                                                                      1. E.g. R-D law on indig law
                                                                  3. CHRONOLOGICAL ORDER OF EVENTS
                                                                    1. 753 BC: Foundation of the city of Rome
                                                                      1. Influenced by Germanic law (Holland) & Canon law
                                                                      2. BCE: Before Common Era: Before year Nil
                                                                        1. CE: Common Era: After year Nil
                                                                          1. Considered to be more respectful to other religions
                                                                          2. BC: Before Christ
                                                                            1. AD: Anno Domini: "in the year of our Lord"
                                                                              1. Used until 19th Cent; Used in this module
                                                                              2. 4** BC: Beginning of the Republic
                                                                                1. AD 3** Invasions of the Germanic tribes — the Roman Empire starts declining
                                                                                  1. AD 395: Division of the Empire into the E & W Empire
                                                                                    1. Ad 476: Fall of Roman Empire
                                                                                      1. AD 500: Germanic Rule of WRE
                                                                                        1. Emperor Justinian of ERE has Roman law codified in Corpus Iuris Civilis
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                                                                                        The African Component
                                                                                        Dee Morais
                                                                                        Dee Morais
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