I studied law at the Erasmus University in Rotterdam, Netherlands. After a scholarship for post graduate studies in South Africa I obtained my doctorate at the University of South Africa and taught Roman law at the University of Pretoria. I publish widely in Roman law, Roman Dutch, Legal History and Comparative law. I am member of the Southern African Society of Legal Historians and the Societé d’Histoire du Droit, the Akademie für Europäisches Privatrecht in Salzburg, the International Scientific Board of Legal Roots, the international Journal of Roman law, Legal History and Comparative law, and IVRA, rivista internazionale di diritto romano e antico. I have lectured at numerous European universities and at the conferences of the Societé internationale “Fernand de Visscher” pour l’Histoire des droits de l’ Antiquité and teach annually at the Salzburg Summer School for European Private Law.
The term Roman-Dutch law was first used by the Dutch jurist Simon van Leeuwen, but was not curre... more The term Roman-Dutch law was first used by the Dutch jurist Simon van Leeuwen, but was not current in his time or province. The nomenclature was revived after the annexation of Natalia by the British empire in 1845 and became associated with the South African legal system during the twentieth century. This paper explores why the terminology “Roman-Dutch” is not appropriate to the jurisprudence of the Dutch republic. This republic owed her existence to the resistance of the provinces in the Low Countries, to the new age and new republic emerging from the Middle Ages, which the Hapsburg monarchy attempted to introduce in these regions. The Dutch aristocracy, the wealthy urban bourgeoisie of Holland as well as the working classes clung to the medieval status quo in terms of which they continued to govern their prosperous towns and provinces retaining their identities. This resistance gave birth to an innovative paradigm of constitutional law, but continued the medieval legal pluralism. Both were reactions against the constitutional theories derived from Roman law by the absolute monarchies of the developing national states and the concomitant drive to legal unification on the basis of Roman law. In consequence, the jurisprudence of Holland rowed upstream against the tide of the times, which can de deduced from the academic lectures delivered at the university of Leiden by Dionysius van der Keessel on the eve of the incorporation of the Dutch state into the French empire of Napoleon. This paper attempts to establish the links and conflicts between the various forces in politics and socio-economics at the fault zones between communitarianism and individualism, parochialism and globalisation avant la lettre and unification against pluralism. Keywords: Dutch rebellion, Roman law, feudalism, privileges, taxation, sovereignty.
abstract – résumé
Ce document aborde la crise à laquelle est confronté le droit romain dans les p... more abstract – résumé Ce document aborde la crise à laquelle est confronté le droit romain dans les programmes d’études juridiques modernes et propose un nouveau rôle pour ce noyau essentiel de l’enseignement juridique. Il est suggéré qu’un autre changement de paradigme dans le droit romain devrait accentuer l’adaptabilité de ce système à un environnement socio-économique, politique et religieux changeant au cours de deux millénaires et s’appuyer sur le fait que le droit romain a montré que le droit est l’art de la persuasion. Mots-clefs : pertinence, renaissance, philosophie de la science, pensée critique, droit romain, formation juridique. The paper addresses the crisis confronting Roman law in modern law curricula and proposes a new role for this essential core of legal education. It is submitted that another paradigm shift in Roman law should accentuate adaptability of a system to a changing socioeconomic, political and religious environment during two millennia and rely on the fact that Roman law has shown that law is the art of persuasion. Keywords: relevance, renaissance, philosophy of science, critical thought, Roman law, legal education. L’articolo affronta la crisi del diritto romano nei moderni curricula di diritto e propone un nuovo ruolo per questo nucleo essenziale dell’educazione giuridica. Si sostiene che un altro cambiamento di paradigma nel diritto romano dovrebbe accentuare l’adattabilità di questo sistema a un ambiente socio-economico, politico e religioso mutevole nel corso di due millenni e basarsi sul fatto che il diritto romano ha dimostrato che il diritto è l’arte della persuasione. Parole chiave: rilevanza, rinascimento, filosofia delle scienze, pensiero critico, diritto romano, formazione giuridica.
The Constitution of 1996 brought about drastic changes to the South African jurisdiction. Differe... more The Constitution of 1996 brought about drastic changes to the South African jurisdiction. Different interpretations led to the development of new paradigms and no corner of the legal landscape remained the same. A recent decision of the Constitutional Court which dealt with the perennial electricity crisis offers an opportunity to show how the Constitution is influencing legal development in various disciplines and how different paradigms interpret the constitutional imperatives.
Attention is drawn to a new paradigm in the mixed jurisdiction of South Africa, which raises ques... more Attention is drawn to a new paradigm in the mixed jurisdiction of South Africa, which raises questions regarding universality of values.
The paper describes the vicissitudes of citizenship within the territory of South Africa.
Origina... more The paper describes the vicissitudes of citizenship within the territory of South Africa. Originally British subjects in terms of ius soli, the inhabitants of South Africa were subjected to various statutes throughout the twentieth century, which affected their citizenship and the concomitant rights and duties. The 1996 Constitution guarantees one common and equal citizenship. Moreover, the Bill of Rights entitles Everyone in the country. The article addresses some of the obstacles which persist.
The essay analyses D. 2.2 and the interpretation thereof by the Roman-Dutch jurist Johannes Voet ... more The essay analyses D. 2.2 and the interpretation thereof by the Roman-Dutch jurist Johannes Voet and his South African translater Percival Gane. It comments on the negative application of the golden rule in law.
SUMMARY: 1.- Introduction; 2.- New Age; 3.- Hugo de Groot; 4.- The Catherine 1; 5.- The Dutch rev... more SUMMARY: 1.- Introduction; 2.- New Age; 3.- Hugo de Groot; 4.- The Catherine 1; 5.- The Dutch revolt; 6.- The Catherine 2; 7.- Commercial success of the Dutch; 8.- The Catherine 3; 9.- The difference between piracy and privateering 10.- Cape of Good Hope; 11.- Conclusion.
In this article it is argued that the re-organisation of the Roman military by Marius prepared th... more In this article it is argued that the re-organisation of the Roman military by Marius prepared the way for the following civil wars and dictatorships rather than the inherent failures of the republican constitution. This paper sketches the socio-political context of Cicero's life and holds that this last republican left an important theoretical body of legal work besides his court work. Cicero's moral philosophy is reflected in his belief in natural law and his staunch partisanship for the power of good faith in Roman law.
The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and... more The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time. However, application of new insights into historical narratives has often been hesitant because of the "anything goes" mentality. This paper approaches one of Roman law's holy cows, namely the role and development of good faith in the Roman law of contracts and questions whether a move from historical interpretation to legal history may provide another narrative.
In De foenore et usuris libri tres Gerard Noodt (1647-1725) discussed fenus nauticum. He showed h... more In De foenore et usuris libri tres Gerard Noodt (1647-1725) discussed fenus nauticum. He showed himself a true representative of the so-called Antiquarian School, in other words an ivory tower Romanist, but not a representative of the vibrant Dutch scholarship during the 17th and 18th centuries
In the absence of a codification of private law in South Africa Roman law remains a point of refe... more In the absence of a codification of private law in South Africa Roman law remains a point of reference in some parts of private law. However, application has become problematic as is shown in two discussed decisions based on De receptis nautarum cauponum stabulariorum. Roman law or rather Roman-Dutch law is interpreted and applied by way of translations and secondary or tertiary sources.
The Dutch professor Gerard Noodt (1647-1725) devoted a monography to interest in which he explain... more The Dutch professor Gerard Noodt (1647-1725) devoted a monography to interest in which he explained how the statutory limit could be avoided. C Th 2 33 1 addressed this matter, but hemiola enabled an interest rate of 50 per cent until abolished by Justinian. Noodt place economic considerations over morality
Tydskrif vir Hedendaagse Romeins-Hollandse Reg, 2012
The article investigates a number of texts in the Corpus Iuris civilis on the basis of the hypoth... more The article investigates a number of texts in the Corpus Iuris civilis on the basis of the hypothesis that they share a common characteristic, namely to avoid the limit Roman law had placed on interest. Analysis of these texts makes it possible to reconstruct the method applied.
The paper proposes an alternative interpretation of D 17 2 69, of which text Cuiacius dared to st... more The paper proposes an alternative interpretation of D 17 2 69, of which text Cuiacius dared to state that he did not understand it.
This article addresses the legal history of South Africa, a so-called mixed
jurisdiction. This is... more This article addresses the legal history of South Africa, a so-called mixed jurisdiction. This is explained by the colonial history and the change from Dutch to British rule. However, every African country will by necessity have a mixed jurisdiction as the colonisers introduced their own law and for pragmatic administrative reasons to a certain degree gave recognition to local law. One result of this recognition has been that the interference with and adaptation of traditional laws by colonial administrators transformed the existing indigenous law into the new form of the so-called colonial indigenous law which co-existed with traditional indigenous law providing another layer in the onion of the law of the South. However, harmonisation in the global world should be limited to the primary fields of the law dealing with economic transactions. Harmonisation is not unification, but should recognise diversity within a framework set out by communal principles. The history of South African private law shows that such objective is achievable. The British method introduced in the Cape colony and subsequently in the Union consisted in the introduction of institutions, structure and process; by placing the focus on legal procedure instead of values, law has become the language of debate between conflicting legal cultures and succeeded in keeping the balance in society. Thus, cross-economical transactions may pave the way for cross-cultural harmonisation as abstract choices between value systems and the consequent conflict are avoided.
The paper argues that the early English practitioners and judges in the
Cape Colony interpreted ... more The paper argues that the early English practitioners and judges in the Cape Colony interpreted and applied Roman-Dutch law strictly and narrowly, thus opening the door for English law, which system consisted of both common law and equity, that is the principles, rules and remedies developed by the Court of Chancery from the fifteenth until the nineteenth century. Thus equity became part of the colonial common law in the same manner as the doctrine of precedent. However, as early as 1876 the Chief Justice placed a limitation on the development of equity, which set the precedent that South African courts are not courts of conscience.
This paper addresses Cicero as jurist during the pre-classical period of Roman law. It draws atte... more This paper addresses Cicero as jurist during the pre-classical period of Roman law. It draws attention to his Topica, which made an important contribution to the development of legal reasoning. Cicero's explanation of the role of definition in legal argumentation is analysed in view of the fact that "defining" is a prerequisite for debate. Several of his definitions, for example of ius civile, and precepts how to construct a definition are discussed. In conclusion his influence on the development and character of Roman law is mentioned.
Studia Universitatis Babes-Bolyai Iurisprudenta, 2013
The paper investigates the origins of the rather ambivalent expression "thinking like a lawyer". ... more The paper investigates the origins of the rather ambivalent expression "thinking like a lawyer". It argues that Cicero strongly influenced the manner in which the classical Roman jurists argued and reasoned. This proposition is supported by the works of Seneca (elder) and Quintilian whose works reflect legal argumentation during an important period of Roman legal development.
The paper analyses Grotius' De Iure Praedae Commentarius and discusses the insights this work pr... more The paper analyses Grotius' De Iure Praedae Commentarius and discusses the insights this work provides into the Dutch 'state' and society.
The term Roman-Dutch law was first used by the Dutch jurist Simon van Leeuwen, but was not curre... more The term Roman-Dutch law was first used by the Dutch jurist Simon van Leeuwen, but was not current in his time or province. The nomenclature was revived after the annexation of Natalia by the British empire in 1845 and became associated with the South African legal system during the twentieth century. This paper explores why the terminology “Roman-Dutch” is not appropriate to the jurisprudence of the Dutch republic. This republic owed her existence to the resistance of the provinces in the Low Countries, to the new age and new republic emerging from the Middle Ages, which the Hapsburg monarchy attempted to introduce in these regions. The Dutch aristocracy, the wealthy urban bourgeoisie of Holland as well as the working classes clung to the medieval status quo in terms of which they continued to govern their prosperous towns and provinces retaining their identities. This resistance gave birth to an innovative paradigm of constitutional law, but continued the medieval legal pluralism. Both were reactions against the constitutional theories derived from Roman law by the absolute monarchies of the developing national states and the concomitant drive to legal unification on the basis of Roman law. In consequence, the jurisprudence of Holland rowed upstream against the tide of the times, which can de deduced from the academic lectures delivered at the university of Leiden by Dionysius van der Keessel on the eve of the incorporation of the Dutch state into the French empire of Napoleon. This paper attempts to establish the links and conflicts between the various forces in politics and socio-economics at the fault zones between communitarianism and individualism, parochialism and globalisation avant la lettre and unification against pluralism. Keywords: Dutch rebellion, Roman law, feudalism, privileges, taxation, sovereignty.
abstract – résumé
Ce document aborde la crise à laquelle est confronté le droit romain dans les p... more abstract – résumé Ce document aborde la crise à laquelle est confronté le droit romain dans les programmes d’études juridiques modernes et propose un nouveau rôle pour ce noyau essentiel de l’enseignement juridique. Il est suggéré qu’un autre changement de paradigme dans le droit romain devrait accentuer l’adaptabilité de ce système à un environnement socio-économique, politique et religieux changeant au cours de deux millénaires et s’appuyer sur le fait que le droit romain a montré que le droit est l’art de la persuasion. Mots-clefs : pertinence, renaissance, philosophie de la science, pensée critique, droit romain, formation juridique. The paper addresses the crisis confronting Roman law in modern law curricula and proposes a new role for this essential core of legal education. It is submitted that another paradigm shift in Roman law should accentuate adaptability of a system to a changing socioeconomic, political and religious environment during two millennia and rely on the fact that Roman law has shown that law is the art of persuasion. Keywords: relevance, renaissance, philosophy of science, critical thought, Roman law, legal education. L’articolo affronta la crisi del diritto romano nei moderni curricula di diritto e propone un nuovo ruolo per questo nucleo essenziale dell’educazione giuridica. Si sostiene che un altro cambiamento di paradigma nel diritto romano dovrebbe accentuare l’adattabilità di questo sistema a un ambiente socio-economico, politico e religioso mutevole nel corso di due millenni e basarsi sul fatto che il diritto romano ha dimostrato che il diritto è l’arte della persuasione. Parole chiave: rilevanza, rinascimento, filosofia delle scienze, pensiero critico, diritto romano, formazione giuridica.
The Constitution of 1996 brought about drastic changes to the South African jurisdiction. Differe... more The Constitution of 1996 brought about drastic changes to the South African jurisdiction. Different interpretations led to the development of new paradigms and no corner of the legal landscape remained the same. A recent decision of the Constitutional Court which dealt with the perennial electricity crisis offers an opportunity to show how the Constitution is influencing legal development in various disciplines and how different paradigms interpret the constitutional imperatives.
Attention is drawn to a new paradigm in the mixed jurisdiction of South Africa, which raises ques... more Attention is drawn to a new paradigm in the mixed jurisdiction of South Africa, which raises questions regarding universality of values.
The paper describes the vicissitudes of citizenship within the territory of South Africa.
Origina... more The paper describes the vicissitudes of citizenship within the territory of South Africa. Originally British subjects in terms of ius soli, the inhabitants of South Africa were subjected to various statutes throughout the twentieth century, which affected their citizenship and the concomitant rights and duties. The 1996 Constitution guarantees one common and equal citizenship. Moreover, the Bill of Rights entitles Everyone in the country. The article addresses some of the obstacles which persist.
The essay analyses D. 2.2 and the interpretation thereof by the Roman-Dutch jurist Johannes Voet ... more The essay analyses D. 2.2 and the interpretation thereof by the Roman-Dutch jurist Johannes Voet and his South African translater Percival Gane. It comments on the negative application of the golden rule in law.
SUMMARY: 1.- Introduction; 2.- New Age; 3.- Hugo de Groot; 4.- The Catherine 1; 5.- The Dutch rev... more SUMMARY: 1.- Introduction; 2.- New Age; 3.- Hugo de Groot; 4.- The Catherine 1; 5.- The Dutch revolt; 6.- The Catherine 2; 7.- Commercial success of the Dutch; 8.- The Catherine 3; 9.- The difference between piracy and privateering 10.- Cape of Good Hope; 11.- Conclusion.
In this article it is argued that the re-organisation of the Roman military by Marius prepared th... more In this article it is argued that the re-organisation of the Roman military by Marius prepared the way for the following civil wars and dictatorships rather than the inherent failures of the republican constitution. This paper sketches the socio-political context of Cicero's life and holds that this last republican left an important theoretical body of legal work besides his court work. Cicero's moral philosophy is reflected in his belief in natural law and his staunch partisanship for the power of good faith in Roman law.
The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and... more The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time. However, application of new insights into historical narratives has often been hesitant because of the "anything goes" mentality. This paper approaches one of Roman law's holy cows, namely the role and development of good faith in the Roman law of contracts and questions whether a move from historical interpretation to legal history may provide another narrative.
In De foenore et usuris libri tres Gerard Noodt (1647-1725) discussed fenus nauticum. He showed h... more In De foenore et usuris libri tres Gerard Noodt (1647-1725) discussed fenus nauticum. He showed himself a true representative of the so-called Antiquarian School, in other words an ivory tower Romanist, but not a representative of the vibrant Dutch scholarship during the 17th and 18th centuries
In the absence of a codification of private law in South Africa Roman law remains a point of refe... more In the absence of a codification of private law in South Africa Roman law remains a point of reference in some parts of private law. However, application has become problematic as is shown in two discussed decisions based on De receptis nautarum cauponum stabulariorum. Roman law or rather Roman-Dutch law is interpreted and applied by way of translations and secondary or tertiary sources.
The Dutch professor Gerard Noodt (1647-1725) devoted a monography to interest in which he explain... more The Dutch professor Gerard Noodt (1647-1725) devoted a monography to interest in which he explained how the statutory limit could be avoided. C Th 2 33 1 addressed this matter, but hemiola enabled an interest rate of 50 per cent until abolished by Justinian. Noodt place economic considerations over morality
Tydskrif vir Hedendaagse Romeins-Hollandse Reg, 2012
The article investigates a number of texts in the Corpus Iuris civilis on the basis of the hypoth... more The article investigates a number of texts in the Corpus Iuris civilis on the basis of the hypothesis that they share a common characteristic, namely to avoid the limit Roman law had placed on interest. Analysis of these texts makes it possible to reconstruct the method applied.
The paper proposes an alternative interpretation of D 17 2 69, of which text Cuiacius dared to st... more The paper proposes an alternative interpretation of D 17 2 69, of which text Cuiacius dared to state that he did not understand it.
This article addresses the legal history of South Africa, a so-called mixed
jurisdiction. This is... more This article addresses the legal history of South Africa, a so-called mixed jurisdiction. This is explained by the colonial history and the change from Dutch to British rule. However, every African country will by necessity have a mixed jurisdiction as the colonisers introduced their own law and for pragmatic administrative reasons to a certain degree gave recognition to local law. One result of this recognition has been that the interference with and adaptation of traditional laws by colonial administrators transformed the existing indigenous law into the new form of the so-called colonial indigenous law which co-existed with traditional indigenous law providing another layer in the onion of the law of the South. However, harmonisation in the global world should be limited to the primary fields of the law dealing with economic transactions. Harmonisation is not unification, but should recognise diversity within a framework set out by communal principles. The history of South African private law shows that such objective is achievable. The British method introduced in the Cape colony and subsequently in the Union consisted in the introduction of institutions, structure and process; by placing the focus on legal procedure instead of values, law has become the language of debate between conflicting legal cultures and succeeded in keeping the balance in society. Thus, cross-economical transactions may pave the way for cross-cultural harmonisation as abstract choices between value systems and the consequent conflict are avoided.
The paper argues that the early English practitioners and judges in the
Cape Colony interpreted ... more The paper argues that the early English practitioners and judges in the Cape Colony interpreted and applied Roman-Dutch law strictly and narrowly, thus opening the door for English law, which system consisted of both common law and equity, that is the principles, rules and remedies developed by the Court of Chancery from the fifteenth until the nineteenth century. Thus equity became part of the colonial common law in the same manner as the doctrine of precedent. However, as early as 1876 the Chief Justice placed a limitation on the development of equity, which set the precedent that South African courts are not courts of conscience.
This paper addresses Cicero as jurist during the pre-classical period of Roman law. It draws atte... more This paper addresses Cicero as jurist during the pre-classical period of Roman law. It draws attention to his Topica, which made an important contribution to the development of legal reasoning. Cicero's explanation of the role of definition in legal argumentation is analysed in view of the fact that "defining" is a prerequisite for debate. Several of his definitions, for example of ius civile, and precepts how to construct a definition are discussed. In conclusion his influence on the development and character of Roman law is mentioned.
Studia Universitatis Babes-Bolyai Iurisprudenta, 2013
The paper investigates the origins of the rather ambivalent expression "thinking like a lawyer". ... more The paper investigates the origins of the rather ambivalent expression "thinking like a lawyer". It argues that Cicero strongly influenced the manner in which the classical Roman jurists argued and reasoned. This proposition is supported by the works of Seneca (elder) and Quintilian whose works reflect legal argumentation during an important period of Roman legal development.
The paper analyses Grotius' De Iure Praedae Commentarius and discusses the insights this work pr... more The paper analyses Grotius' De Iure Praedae Commentarius and discusses the insights this work provides into the Dutch 'state' and society.
De rebus divinis et humanis Essays in honour of jan Hallebeek, 2019
The research of Nobel prize winners Thaler and Kahneman shall reflect in Roman law. The importanc... more The research of Nobel prize winners Thaler and Kahneman shall reflect in Roman law. The importance of Cicero is placed in perspective
Cui bono? FS Professor Anna Pikulska-Radomska, 2020
The Cour de Paris and the Cour de Cassation made law, in that their decisions gave artists unequi... more The Cour de Paris and the Cour de Cassation made law, in that their decisions gave artists unequivocally the right to refuse to hand over their work for whatever reason. Whistler considered this recognition of the absolute right of the artist to control the destiny of his work and the divine right of the artist to pay damages and so end any carelessly undertaken agreements with undesirables.
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Papers by philip J thomas
Keywords: Dutch rebellion, Roman law, feudalism, privileges, taxation, sovereignty.
Ce document aborde la crise à laquelle est confronté le droit romain dans les programmes
d’études juridiques modernes et propose un nouveau rôle pour ce noyau
essentiel de l’enseignement juridique. Il est suggéré qu’un autre changement de
paradigme dans le droit romain devrait accentuer l’adaptabilité de ce système à un
environnement socio-économique, politique et religieux changeant au cours de deux
millénaires et s’appuyer sur le fait que le droit romain a montré que le droit est l’art de
la persuasion.
Mots-clefs : pertinence, renaissance, philosophie de la science, pensée critique, droit
romain, formation juridique.
The paper addresses the crisis confronting Roman law in modern law curricula and proposes
a new role for this essential core of legal education. It is submitted that another
paradigm shift in Roman law should accentuate adaptability of a system to a changing
socioeconomic, political and religious environment during two millennia and rely on
the fact that Roman law has shown that law is the art of persuasion.
Keywords: relevance, renaissance, philosophy of science, critical thought, Roman law,
legal education.
L’articolo affronta la crisi del diritto romano nei moderni curricula di diritto e propone
un nuovo ruolo per questo nucleo essenziale dell’educazione giuridica. Si sostiene che
un altro cambiamento di paradigma nel diritto romano dovrebbe accentuare l’adattabilità
di questo sistema a un ambiente socio-economico, politico e religioso mutevole
nel corso di due millenni e basarsi sul fatto che il diritto romano ha dimostrato che il
diritto è l’arte della persuasione.
Parole chiave: rilevanza, rinascimento, filosofia delle scienze, pensiero critico, diritto
romano, formazione giuridica.
Originally British subjects in terms of ius soli, the inhabitants of South Africa were subjected to various statutes throughout the twentieth century, which affected their citizenship and the concomitant rights and duties.
The 1996 Constitution guarantees one common and equal citizenship. Moreover, the Bill of Rights entitles Everyone in the country. The article addresses some of the obstacles which persist.
8.- The Catherine 3; 9.- The difference between piracy and privateering 10.- Cape of Good Hope; 11.- Conclusion.
jurisdiction. This is explained by the colonial history and the change from
Dutch to British rule. However, every African country will by necessity have a mixed jurisdiction as the colonisers introduced their own law and for pragmatic administrative reasons to a certain degree gave recognition to local law. One result of this recognition has been that the interference with and adaptation of traditional laws by colonial administrators transformed the existing indigenous law into the new form of the so-called colonial indigenous law which co-existed
with traditional indigenous law providing another layer in the onion of the law of the South. However, harmonisation in the global world should
be limited to the primary fields of the law dealing with economic transactions. Harmonisation is not unification, but should recognise diversity within a framework set out by communal principles. The history of South African private law shows that such objective is achievable. The British method introduced in the Cape colony and subsequently in the Union consisted in the introduction of institutions, structure and process; by placing the focus on legal procedure instead of values, law has become the language of debate between conflicting legal cultures and succeeded in keeping the balance in society. Thus, cross-economical
transactions may pave the way for cross-cultural harmonisation as
abstract choices between value systems and the consequent conflict are avoided.
Cape Colony interpreted and applied Roman-Dutch law strictly and narrowly, thus opening the door for English law, which system consisted of both common law and equity, that is the principles, rules and remedies developed by the Court of Chancery from the fifteenth until the
nineteenth century. Thus equity became part of the colonial common law in the same manner as the doctrine of precedent. However, as early as 1876 the Chief Justice placed a limitation on the development of equity, which set the precedent that South African courts are not courts of conscience.
Keywords: Dutch rebellion, Roman law, feudalism, privileges, taxation, sovereignty.
Ce document aborde la crise à laquelle est confronté le droit romain dans les programmes
d’études juridiques modernes et propose un nouveau rôle pour ce noyau
essentiel de l’enseignement juridique. Il est suggéré qu’un autre changement de
paradigme dans le droit romain devrait accentuer l’adaptabilité de ce système à un
environnement socio-économique, politique et religieux changeant au cours de deux
millénaires et s’appuyer sur le fait que le droit romain a montré que le droit est l’art de
la persuasion.
Mots-clefs : pertinence, renaissance, philosophie de la science, pensée critique, droit
romain, formation juridique.
The paper addresses the crisis confronting Roman law in modern law curricula and proposes
a new role for this essential core of legal education. It is submitted that another
paradigm shift in Roman law should accentuate adaptability of a system to a changing
socioeconomic, political and religious environment during two millennia and rely on
the fact that Roman law has shown that law is the art of persuasion.
Keywords: relevance, renaissance, philosophy of science, critical thought, Roman law,
legal education.
L’articolo affronta la crisi del diritto romano nei moderni curricula di diritto e propone
un nuovo ruolo per questo nucleo essenziale dell’educazione giuridica. Si sostiene che
un altro cambiamento di paradigma nel diritto romano dovrebbe accentuare l’adattabilità
di questo sistema a un ambiente socio-economico, politico e religioso mutevole
nel corso di due millenni e basarsi sul fatto che il diritto romano ha dimostrato che il
diritto è l’arte della persuasione.
Parole chiave: rilevanza, rinascimento, filosofia delle scienze, pensiero critico, diritto
romano, formazione giuridica.
Originally British subjects in terms of ius soli, the inhabitants of South Africa were subjected to various statutes throughout the twentieth century, which affected their citizenship and the concomitant rights and duties.
The 1996 Constitution guarantees one common and equal citizenship. Moreover, the Bill of Rights entitles Everyone in the country. The article addresses some of the obstacles which persist.
8.- The Catherine 3; 9.- The difference between piracy and privateering 10.- Cape of Good Hope; 11.- Conclusion.
jurisdiction. This is explained by the colonial history and the change from
Dutch to British rule. However, every African country will by necessity have a mixed jurisdiction as the colonisers introduced their own law and for pragmatic administrative reasons to a certain degree gave recognition to local law. One result of this recognition has been that the interference with and adaptation of traditional laws by colonial administrators transformed the existing indigenous law into the new form of the so-called colonial indigenous law which co-existed
with traditional indigenous law providing another layer in the onion of the law of the South. However, harmonisation in the global world should
be limited to the primary fields of the law dealing with economic transactions. Harmonisation is not unification, but should recognise diversity within a framework set out by communal principles. The history of South African private law shows that such objective is achievable. The British method introduced in the Cape colony and subsequently in the Union consisted in the introduction of institutions, structure and process; by placing the focus on legal procedure instead of values, law has become the language of debate between conflicting legal cultures and succeeded in keeping the balance in society. Thus, cross-economical
transactions may pave the way for cross-cultural harmonisation as
abstract choices between value systems and the consequent conflict are avoided.
Cape Colony interpreted and applied Roman-Dutch law strictly and narrowly, thus opening the door for English law, which system consisted of both common law and equity, that is the principles, rules and remedies developed by the Court of Chancery from the fifteenth until the
nineteenth century. Thus equity became part of the colonial common law in the same manner as the doctrine of precedent. However, as early as 1876 the Chief Justice placed a limitation on the development of equity, which set the precedent that South African courts are not courts of conscience.