Chapter 4 - The historical development of South African law Flashcards
Briefly explain the introduction of SA law :
*The Dutch applied Roman-Dutch law after their settlement in the Cape from 1652 onwards.
* In 1795, and later again in 1806, the Cape was colonized by the British.
*From this point onwards, English law began to influence Roman-Dutch law, resulting in a mixed legal system.
*Principles of the Western legal systems have been captured, or possibly changed and overruled, in modern sources of law such legislation and juridical precedent, it may at times still be necessary to research a legal principle in the context of its originating legal system.
Explain the external legal history of SA :
*External Legal History: includes all the different factors that may have had an influence on the development of law in a particular period.
*Includes social, economic, political, religious and cultural circumstances and the philosophical ideas associated with each.
*The ideology of communism influenced the law in Eastern Europe. In SA, the ideology of apartheid grounded political decisions to separate races, this had a propound influence on the development of SA law for much of the twentieth century.
*The law is casuistic (judged on a case-by-case basis at a particular point in time). External history includes a study of the development of the sources of law and the most important practitioners who engaged in legal developments.
Define internal legal history:
*Refers to the development of material or substantive law.
*Material or substantive law is the set of rules that defines rights and duties relating to, for example, marriage, murder.
*The internal history of law is therefore the narrative of the development of substantive legal norms.
Define the legal historical method:
An exploration of the development of material legal norms over the ages (internal legal history) in the context of socio-economic, philosophical, religious and political factors (external legal history).
