History of SA Law

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  1 Summary of Learning Unit 4 The Western component: Legal development in Europe from 12 th  to 19 th  centuries This summary may be used as a study aid only . Students are required to work through TL501 . Students please study the graph on page 29 of TL501 to see how the discussion in this learning unit fits into the development of the South African legal system. In study unit 3 we studied how and why the Corpus Iuris Civilis was not successful in its time and after Justinian’s death in the 6 th  century AD it was forgotten for seven centuries i.e. 700 years. In the 12 th  century Roman law was reborn when it was studied by the Glossators in Bologna Italy. This renewed interest in Roman law was due to  a need for a new legal system that could fulfil the needs of a developing Western European society.    There was cultural and economic prosperity  in Italy at the end of the 11 th  century and it later spread to the rest of Western Europe. There was a need for a legal system that could fulfil the needs of a more complex and sophisticated society.    There was also legal diversity   which came about as a result of the feudal system in Western Europe from the 9 th  century AD when each region, city or town had its own separate legal system. The legal diversity had a detrimental effect on trade and created a need for one universal, written legal system. So it is not surprising that jurists turned to Roman as it was a sophisticated legal system, known to everybody, easily available in the Corpus Iuris Civilis  and obviously able to meet the needs of the people. The revival of Roman law was in the form of a scientific study of the Corpus Iuris Civilis    by certain groups of jurists.   4.1 THE MEDIEVAL LAW SCHOOLS      The Glossators      The Ultramontani       The post-Glossators or Commentators   The Glossators  2     Were the first group of jurists  who scientifically  studied the Corpus Iuris Civilis    from the beginning of the 12th century in Bologna in Italy.     They saw it as their duty to rediscover and restore Roman law        The glossators followed an interpretative method of study  and wrote explanatory grammatical notes (“glosses”)   on the Corpus Iuris .     The best-known glossator  is Accursius , who made the final contribution to the work of the school of glossators with his Glossa Ordinaria  . (  Students please study what it contained and its importance in 4.1 of tl501.   The work of the Glossators is important for the following reasons:     As a result of their studies  Roman law spread to other parts of Europe.     The work of the glossators ensured the survival of Roman law. The ultramontani     They   were situated at the French law school of Orléans  during the 13th and 14th centuries.     They had a more practical method of study of Roman law than the glossators .     They looked upon the Corpus Iuris Civilis    as a source book for critical discussion .     Their goal   was to incorporate Roman law into contemporary ( modern)   practice . Therefore, they investigated sources of law outside Roman law that were essential for practice, namely town law, canon law  1 and Germanic customary law.     Their efforts led to the creation of a practical legal system, which could be applied in the 14th-century Italian courts.     The two most important ultramontani  were Revigny and Bellaperche    who were the first to work out rules for the reception of canon law into secular law.   ã The post-glossators or commentators  -  worked from approximately 1250 (13 th century to 1650 (17 th  century)    After the 12th century, the needs of practice became more important to legal scholars.   This was because economic growth presented new challenges that could not always be solved through the application of pure Roman law.     As a result, the commentators focused on the practical aspects of law .     They wrote commentaries   on  the text of the Corpus Iuris Civilis  , provided legal opinions   on practical problems  and delivered lectures .      They referred to the Glossa Ordinaria  , canon law, Germanic customary law and town law.    Over time, they achieved harmony between Roman law, Germanic law, canon law and town law  .  3     This led to the Roman law   as glossed by the Glossators being adapted to modern conditions .     This, in turn, led to the creation of medieval Italian law ,  which was later to influence the shaping of modern civil law.    Two memorable   commentators are  Bartolus , who is generally regarded as the greatest medieval jurist, and his pupil, Baldus.   They laid the foundation for private international law (conflict of laws). I quote from FL501 their achievements in legal development which students should please study well:  The commentators’ achievement in legal development can hardly be overrated:     ̵   “  They laid the foundations for the 17th-century school of natural law  .   ̵   They laid the foundation for modern private international law  .     ̵   Their contribution was considerable in the field of private law  .   ̵   They facilitated the reception of Roman law into the practical administration of  justice, thereby creating a practical legal system that was received throughout Europe  .   ̵   Finally, the part played by the commentators is of particular significance to us in South Africa, because the Roman law, which they commented on, was the Roman law that was later received into the Germanic customary law of the Netherlands and would later form part of Roman-Dutch law, which was brought to South Africa in 1652. ”     4.2 CANON LAW Why is it important for law students to study the development of Canon law? It is important to look at the legal development of Canon law  as it was received together with Roman law into the Germanic customary legal systems and became part of Roman-Dutch law, which was brought to South Africa in 1652 . What effect did canon law have on Roman law? Canon law was not as formal and rigid as Roman law.   Canon law tempered the severity of Roman law  and this influence can still be seen in various fields of modern South African law. Students please study the example on Page 31 of a Roman law of contract rule of “ nudo pacto non oritur action ” i.e . a mere agreement does not give rise to an action . The rule was relaxed by canon law which held that a person should be held accountable for any agreement  (regardless of whether additional formalities were performed) to give effect to the moral virtues of honesty and integrity that are valued by the Catholic Church (  pacta servanda  sunt). Students please study the quote from the Constitutional Court finding in AB and Another v  Minister of Social Development 2017on pages 17 and 18 of TL501 stating that the value of self-autonomy is contained in the maxim pacta sunt servanda and confirms its meaning and the fact that it has long been a principle of South African law.    4 History of development of Canon law    4th century AD -   Emperor Constantine  of the Western Roman Empire granted religious freedom and protection to the Christians .      In Roman times , the Catholic Church in the West was built on a Roman legal foundation and internal relations in the Church were governed by Roman law  .     After the fall of the Western Roman Empire in AD 476 , the Church continued to flourish in the Germanic kingdoms .    In certain areas, the Church used the Breviarum Alarici    as the source of Roman law  , and in other areas the Corpus Iuris Civilis .  The law of the Church of the early Middle Ages laid the foundation for the development of canon law. Foundation of Canon Law  The foundation of canon law was Roman law , adapted and amended to suit the needs of the Church, expressed through the resolutions passed at church meetings. ã   The Corpus Iuris Canonici Which work formed the foundation of the Corpus Iuris Canonici?  The Decretum Gratiani   ( a collection of Canon law sources and a textbook on canon law which was given official recognition)  was published by a monk who was a trained jurist  , Gratianus,  in the 12 th  century. It formed the foundation of the Corpus Iuris Canonici, the most comprehensive collection of classical canon law. How and where was the Corpus Iuris Canonici studied?    It was studied in the medieval law schools in the same way the Corpus Iuris Civilis  was studied.    From the 12 th  century , two dynamic legal systems, namely Roman law and canon law  ,  were studied in the medieval law schools . Both legal systems formed part of the “ learned law  ”  (ie the body of academic legal knowledge) and of the European ius commune , or European common law. ã Reception of canon law into secular law    Initially only random  and there were no rules governing this reception .      Canon law was taught at the University of Bologna in Italy by canonists , some of whom  were trained by the Glossators.    In the 2 nd  half of the 12 th  century  there was more interest in the study of canon law  .    Later the Ultramontani  (mostly clerics who held doctorates in both canon law and Roman law) laid down rules for the reception of canon law into secular . Students please study the rules on  page 32 of TL501.  
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