Fundamina: a Journal of Legal History最新文献

{"title":"Suetonius on the legislation of Augustus (Aug 34)","authors":"D. Wardle","doi":"10.17159/2411-7870/2015/V21N1A9","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N1A9","url":null,"abstract":"The Emperor Augustus' so-called social or moral legislation features prominently in legal and historical discussions of his principate. His biographer Suetonius concentrates into one chapter a discussion of Augustus' leges rogatae, which has never been analysed phrase by phrase by any scholar of Roman history or law since Paul Jors in 1893. This article sets out to explain how Suetonius orders his discussion, chooses precise vocabulary, highlights key stages in the legislative programme, and does not conceal opposition to the legislation. The most controversial law, on which Suetonius centres his discussion, is the lex Iulia de maritandis ordinibus, key provisions of which were amended in the lex Papia Poppaea of AD 9. I argue that Suetonius comments not only on the lex Iulia de maritandis ordinibus, but also on later amendments, whether in the putative lex Aelia Sentia of AD 4 or the indisputable lex Papia Poppaea. There is, however, no reference to any abortive moral legislation of 27 BC. Suetonius presents an emperor concerned with major social issues, careful in the formulation of his laws, but also suitably responsive to societal pressure.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124410130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The beginnings of a mixed system or, advocates at the Cape during the early nineteenth century 1828-1850 : article","authors":"H. Erasmus","doi":"10.17159/2411-7870/2015/V21N2A1","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N2A1","url":null,"abstract":"In his study of the judgments of the Supreme Court of the Colony of Good Hope during the late nineteenth century, Reinhard Zimmermann stressed the importance of the role of the Bar. A study of the professional activity of the advocates at the Cape Bar during the early nineteenth century necessitates reconsideration of current assumptions. The Charter of Justice of 1827 required advocates to have been admitted to a United Kingdom Bar or to be doctors of law of Oxford, Cambridge or Dublin.This gave rise to the misconception that from the outset the survival of Roman- Dutch law was under threat, if not from a hostile Bar, at least from one with little knowledge of Roman-Dutch Law. The Charter of Justice also made provision for the admission of persons who had practised as advocates in the former Court of Justiceand from 1803, were required to have graduated in law in Holland. For the first ten years of its existence, only former advocates of the old Court of Justice practisedbefore the Cape Supreme Court, the one exception being the Attorney-General. Perusal of the Menzies' Reports, which cover the years 1828 to 1849, reveals theextent to which advocates relied on Roman-Dutch authority. In every contested civil case old authority is cited, sometimes on an extensive scale. During the fi rst years of the Cape Supreme Court, the advocates played a vital role in affirming the status of Roman-Dutch law as an integral part of the law of the Colony. This continued throughout the nineteenth century. At the Cape during the nineteenth century there was no bellum juridicum between the proponents of Roman-Dutch law and English law. This does not mean that Roman-Dutch law was the only actor on the stage. Ties with Holland had been severed. Roman Dutch-law found application within an English colonial political environment, and the courts operated within a procedural regime of English origin. In the Netherlands, the country of origin of Roman-Dutchlaw, the introduction of a code based on the French Civil Code meant that Roman- Dutch law was no longer a living system. In the circumstances, developments in the field of mercantile law, in particular, were assimilated with reference to English law and through legislation derived from English precedents. Whatever tensions there might have been at times, these various elements were in fact the building blocks of the new mixed system. From the very first years, the advocates, in a pragmatic way, played their part in fashioning a coherent system from these building blocks.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129155008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Janwillem Oosterhuis specific performance in German, French and Dutch law in the nineteenth century - remedies in an age of fundamental rights and industrialisation : book review","authors":"S. Eiselen","doi":"10.17159/2411-7870/2015/V21N1A11","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N1A11","url":null,"abstract":"It is often stated in comparative essays and studies that one of the fundamental differences between the common law and civil law with regard to obligations lies in the remedy of specific performance. According to this view, specific performance is the primary remedy in civil law where there has been a breach of contract, since the innocent party has a right to fulfilment of the contract. In the common law, on the other hand, specific performance is a secondary remedy, the primary remedy being a claim for damages. Against this background, this historical analysis by Oosterhuis is an important addition to the body of work on this subject in the English language. The author also gives an in-depth account of changes to this remedy during the nineteenth century, which was a very formative time for the civil law in Europe, especially the three countries studied in this work.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126516146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"John Stuart Mill on matrimonial property and divorce law reform","authors":"Henry Kha","doi":"10.17159/2411-7870/2018/V24N2A3","DOIUrl":"https://doi.org/10.17159/2411-7870/2018/V24N2A3","url":null,"abstract":"Victorian England is often seen as an era of stability for marital and family life. In reality, it was a period of significant legal and social change that opened the way for the introduction of the modern family court system. It was a time and place where women had very few legal rights in regards to divorce and matrimonial property. John Stuart Mill was a key proponent for the advancement of women’s rights in the Victorian period. The article argues that Mill was an advocate for equal opportunity for women based on ideals of liberty, but this was based on a gender complementarian division of roles within the family. The article focuses on Mill’s major work on women’s rights, The Subjection of Women. Mill presented a radical piece of writing based on principles of equality as a source of moral progress amidst the reactionary politics of Victorian England.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130587617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"\"He's one who minds the boss's business ...\"","authors":"R. D. Bergh","doi":"10.17159/2411-7870/2015/V21N2A9","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N2A9","url":null,"abstract":"This article deals mainly with the question why the Romans did not know agency and how they successfully managed to cope without it. Various relevant matters are discussed, such as the position of slaves and children in the paterfamilias's power, the praetorian actions that made commerce possible despite the lack of an institution such as agency, and the peculium. Although Roman law never really developed an institution of direct representation, it gradually adapted to the increasing commercial needs and approached recognition of agency in contracts. Factors that contributed to this, were firstly the considerable use of slaves and sons subject to power, and secondly the defacto agency exercised by institores and exercitores.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132757243","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Some remarks on laesio enormis and proportionality in Roman-Dutch law and Calvinistic commercial ethics","authors":"J. Hallebeek","doi":"10.17159/2411-7870/2015/V21N1A2","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N1A2","url":null,"abstract":"This contribution contains a continuation of an earlier article dealing with the concepts of iustum pretium and proportionality in Roman law and the ius commune. Its findings for Roman-Dutch law, however, appear to be incompatible with the conclusions expounded by James Whitman in an article on the role of Roman law in early modern commerce. Whitman maintained that the traditional Christian rule on fair pricing was no longer upheld by the jurists and clergymen of the Dutch Republic. By appealing to Roman law, the Dutch would have abandoned the longstanding just-price principles and would have considered active fraud by malicious salesmen to be permissible. This would appear from vernacular books on Roman-Dutch law, which, as a consequence, exuded an atmosphere of immorality. Moreover, the new commercial attitude was said to be supported by a number of moral handbooks written by Calvinistic clergymen. However, when reinvestigating the sources quoted from the wider perspective of the civilian tradition, other \"Old Authorities\" of Roman-Dutch law and the true nature and purpose of the Further Reformation, there is no choice other than to query Whitman's findings.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133047936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Carta sine litteris. Enea silvio piccolomini und die urkundenpraxis im frühmittelalter","authors":"Tamás Nótári","doi":"10.17159/2411-7870/2015/v21n2a7","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/v21n2a7","url":null,"abstract":"Enea Silvio Piccolomini, in his work entitled De Europa written in 1458, tells an interesting story defined as a legend in terms of genre about a duke called Ingo,who lived during the reign of Charlemagne. This narrative claims that in 790 dux gentis Ingo held a feast for the inhabitants of his province where food was served in golden and silver bowls to the peasants allowed to appear before him, while to the dignitaries standing further away from him received their food in bowls made of clay. The researchers' attention is deservedly raised by the question why this parabolic story with biblical tone was included in Enea Silvio's work; and if it had been borrowed, from whom? The answer seems to be very simple: it derives from the Conversio Bagoariorum et Carantanorum drafted regarding the lawsuit instituted Methodius. In the case narrated in the Conversio Ingo sent a charter, or rather a parchment without any writing or letters on it (carta sine litteris), which provided his legate with sufficient authenticity to demand obedience from the people. In this study - after having compared the two narratives and outlined the place of De Europa in Enea Silvio Piccolomini's oeuvre as well as the circumstances of the drafting and tendencies of the Conversio Bagoariorum et Carantanorum, the author attempts to answer the following questions : To what extent can duke Ingo, mentioned by Enea Silvio and not questioned in the literature for long centuries, be considered a real historical person? Does the Conversio refer to Ingo as a duke, and if it does, what is his existence as a duke and introduction in the literature as a duke owing to? What could the meaning of carta sine litteris referred to in Conversio have been, and why did Enea Silvio not take this item over although he could have put it forward as a further proof of Ingo's dignity? To what literary pre-figurations can the description of the feast held by Ingo be traced back to, and what role did it play in the Conversio? And, regarding the borrowing of the Ingo story by Enea Silvio, what possible intermediary writing and author can be reckoned with?","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114438646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protection against forced sale of a debtor's home in the Roman context","authors":"L. Steyn","doi":"10.17159/2411-7870/2015/V21N1A7","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N1A7","url":null,"abstract":"In the last decade, the Constitutional Court has recognised that the sale in execution of a debtor's home potentially infringes the debtor's right to have access to adequate housing in terms of section 26 of the Constitution. The position is now that, in every case in which execution is sought against a debtor's home, judicial oversight is required to determine whether execution is justifiable, taking into account \"all the relevant circumstances\" in terms of section 36 of the Constitution. Last year, the European Union issued a directive to its member states requiring forbearance in matters concerning foreclosure against residential property. Against this contextual background, this article explores the ways in which execution against a debtor's home was dealt with according to Roman law, a common source of many contemporary legal systems. Initially, substantive and procedural rules relating to debt enforcement permitted execution only against a debtor's person. Subsequently, the law developed to provide for execution against a debtor's property. Collective debt enforcement (or insolvency) rules and procedures evolved, as did principles pertaining to mortgage and a creditor's rights of real security. Certain types of assets came to be regarded as exempt from execution in the individual and collective debt enforcement processes, but there was no formal exemption of the debtor's home. However, it is submitted, a study of the relevant legal principles and procedures as applied in their historical and socio-economic context - especially in light of the revered status of the familia, including the ancestors, the household gods and the requisite hereditary altar as well as the complex societal relationships - reveals the discernible, albeit indirect and subtle, consequence of providing protection for an impecunious debtor against the loss of his home at the instance of a creditor.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"134 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132929737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human rights in the eighteenth-century travelogues of François Le Vaillant","authors":"Jan F. Mutton","doi":"10.17159/2411-7870/2016/V22N2A4","DOIUrl":"https://doi.org/10.17159/2411-7870/2016/V22N2A4","url":null,"abstract":"Human dignity and human rights, land restitution, inequality, development and the protection of the environment continue to dominate the political agenda in our postcolonial society. These issues are not new, however; they have been recognised ever since the early days of colonisation when legal minds and philosophers identified them in their writings and explorers and travellers discussed them in their travelogues.\u0000More than two hundred years ago, during the Age of Enlightenment, philosophers and legal thinkers such as John Locke in England, Jean-Jacques Rousseau, Mirabeau and Montesquieu in France and Thomas Jefferson in the United States stood up for civil liberties and human rights. Their views have been well summarised by Mirabeau in his Adresse aux Bataves where he refers to a number of political and civil rights, to religious freedom and a free press as \"inalienable and imprescriptible rights without which it is impossible for humankind in any climate to preserve dignity, to secure development or to enjoy in tranquility the blessings of nature\".","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130099352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The origin and development of emergency regimes in Cameroon","authors":"Gerard Emmanuel Kamdem Kamga","doi":"10.17159/2411-7870/2015/V21N2A5","DOIUrl":"https://doi.org/10.17159/2411-7870/2015/V21N2A5","url":null,"abstract":"The purpose of this study is to trace the origin and development of emergency regimes in Cameroon, to address their negative impact on the current structure of the political system and to highlight the need for change in the country. Emergency regimes are generally brought into being in exceptional circumstances and allow states to (legally) suspend law and infringe human rights when confronted by threats to their existence. They generally include a state of emergency, a state of exception, a state of siege and martial rule. In the case of Cameroon, these regimes are a legacy of French colonialism, and were introduced into the country's legal system to sustain harsh imperialist policies. Traditionally it is believed that a state of emergency and a state of exception are declared in response to circumstances threatening the state's existence (such as natural cataclysms, invasions, and general insurrections), but the peculiarity of these regimes in Cameroon is that they have been and still are used as a political device. Indeed, in the context of colonialism and war of independence between French colonial authorities, their local acolytes and indigenous Cameroonians, emergency regimes played a key role in eliminating political challengers, increasing the powers of the executive, and absolving it of any accountability and responsibility. However, in the process, these measures ended up losing their exceptional character as they entered the sphere of normalcy. The current hypertrophy of the powers of the executive entity in Cameroon dates back to that period, and it is consequently difficult to distinguish between a Cameroon society in crisis and one in peacetime.","PeriodicalId":338511,"journal":{"name":"Fundamina: a Journal of Legal History","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121179632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}