Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20160001&lang=en vol. 22 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Some considerations on the expression <i>"Loco Filiae" </i>in Gaius' <i>Institutes</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100001&lng=en&nrm=iso&tlng=en This article studies the meaning of the expression in "loco filiae" that Gaius uses to describe the position of the wife that has undergone a conventio in manum. Its aim is to ascertain whether or not manus, potestas and mancipium were equivalent powers, in the time of Gaius, by identifying, in particular, institutions which reflect disparate regulation of each. <![CDATA[<b>Le Gout des jeunes pousses: Atticus, Brutus, Octave</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100002&lng=en&nrm=iso&tlng=en Youth in politics might be a default - a lack of experience justifying waiting for your turn - or an advantage, as a promise of renewal and energy. In ancient Rome youth was something more positive than one could expect: the Roman people, if not the Senate, was fond of young leaders like Scipio Nero, whilst Galba was despised for being too old. This paper aims at studying the case of two young men in the Late Republic - Brutus and Octavian - through their relationship with a much older man, Atticus. The first part focuses on Brutus, born approximately 85 BC and belonging to the ancient elite like Atticus, who was considered a promising young leader of the Optimates since his beginnings in 58 BC until his misfortune in 44-43 when he could not manage to apply the murder of Caesar to his own advantage. The second part concerns Octavius, the real young man, born in 63. He was nineteen years old when he became Caesar's heir, while Brutus was already forty. The vocabulary is revealing: Octavius is called puer by his opponents, but he is an adulescens for the Caesarians, and Brutus is described as an adulescens though already a iuvenis. Atticus, who always helped Brutus, had to change his way: a wedding between Attica and Agrippa, planned by Antony, resulted in him finally belonged to Octavian's party. Octavian, the new man who had won the war, needed a symbol of the old elite and of Republican Rome. Atticus had to save what could be saved. <![CDATA[<b>Natural law: Voet's criticism of De Groot</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100003&lng=en&nrm=iso&tlng=en Hugo de Groot (1583-1645) is internationally known as the father of international law and also celebrated for his seminal work on the law of nature. The principal work of Johannes Voet (1647-1713) is his Commentarius ad Pandectas in which he expounds the modern law (the jus hodiernum) in the light of the Pandects of Roman law. In the first title of his Commentary, Voet briefly sets out his views on the foundations of natural law. He rejects the views of De Groot on this score as unacceptable. The purpose of this note is to trace the exposure of De Groot and Voet to the subtleties of the esoteric theological debates in Reformed (Calvinist) circles in seventeenth century Holland, and to highlight the theological background to their differing views on the source of the law of nature. <![CDATA[<b>The origins of hate-crime laws</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100004&lng=en&nrm=iso&tlng=en Hate crimes were first recognised as a specific category of criminal conduct in the United States of America. Evidence of such recognition is supported by a number of state level and federal hate-crime laws that were enacted in the United States between the early 1980s and 1990s. There is a tendency in some American literature, however, to trace the recognition of hate crime as a specific category of criminal conduct to two specific historical time periods. The first historical period that is usually considered, is the nineteenth-century post-American Civil War period when federal civil-rights statutes were passed by the American Congress to protect vulnerable groups of people who were victimised because of their race and prior status as slaves. The second time period that is considered is the mid-twentieth century, post-Second World War era up to the period of the Civil-Rights Movement. Irrespective of the origins of hate crime as a category of criminal conduct, their recognition has spawned a new category of crime and criminal laws in the United States of America and internationally. Contemporary hate-crime laws recognise a wide spectrum of prejudices and biases. Despite the international trend, particularly in democratic Western nations towards the recognition of hate crimes and the enactment of hate-crime laws, the Republic of South Africa has yet to enact a hate-crime law. <![CDATA[<b>At the base of Rome's <i>peculium </i>economy</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100005&lng=en&nrm=iso&tlng=en Why did Roman slaves have a peculium or purse? It has been suggested that the grant of a peculium was a clever arrangement, a trick actually, by means of which owners incentivised slaves to perform unsupervised labour. Upon this incentive base stands Rome's "peculium economy" in which diverse and far-flung business and other activities are performed by minimally supervised slaves. However, forcibly taken slaves (including born-slaves), the kind still taken for granted in the scholarly literature, would not be sufficiently incentivised by peculia. The "peculium economy" stands, however, because the slaves forming its base are slaves by contract/self-sellers. The peculium, the legal and other evidence suggests, is a contractual benefit desired by and typically made available to free individuals who volunteered for slavery. This is precisely how, for example, the "peculium" arose in the eighteenth century trade in "indentured servants" between England and North America. The paper explores this finding and develops its implications for Roman economic growth. <![CDATA[<b>Revisiting the historical context surrounding the development of the ultimate-issue rule to inform its future in South African law of evidence</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100006&lng=en&nrm=iso&tlng=en The controversy surrounding the issue whether or not mental health professionals in South Africa should offer opinion testimony that touches upon the ultimate-issue has been ongoing and remains unsettled. This controversy has left the exact place of the ultimate-issue rule in balance hence causing uncertainty. This uncertainty has impacted negatively on the advancement of opinion testimony by mental health professionals. One notable area that has been affected is the one pertaining to child sexual-abuse cases. The authors trace the historical foundations surrounding the development of the ultimate-issue rule. It is demonstrated that the rule finds its basis in justice systems with jury trials, with the aim of the rule having been to ensure that experts do not usurp the role of the jury. Historically, juries were not schooled in law hence the need to screen the evidence they received ensuring that experts' opinions did not awe them to a point of them relinquishing their decision-making powers. In this context, the unsoundness of the rule in non-jury systems such as South Africa's (where decisions are made by judges schooled in law) is underscored. It is highlighted that the policy considerations surrounding the development of this rule are not applicable to South Africa. Recommendations are made for its express abolition by way of statutory guidelines. <![CDATA[<b>Of naval courts martial and prize claims: Some legal consequences of Commodore Johnstone's secret mission to the Cape of Good Hope and the "battle" of Saldanha Bay, 1781 (Part 2)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100007&lng=en&nrm=iso&tlng=en Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. These matters are considered in two parts, of which the first appeared in (2015) 21(2) Fundamina 392-456. <![CDATA[<b>Van Dongen, EGD: <i>Contributory negligence - A historical and comparative study</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100008&lng=en&nrm=iso&tlng=en Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. These matters are considered in two parts, of which the first appeared in (2015) 21(2) Fundamina 392-456. <![CDATA[<b>Kaius Tuori: <i>Lawyers and savages. Ancient history and legal realism in the making of legal anthropology</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100009&lng=en&nrm=iso&tlng=en Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. These matters are considered in two parts, of which the first appeared in (2015) 21(2) Fundamina 392-456. <![CDATA[<b><i>In memoriam</i></b><b>: Professor HJ Erasmus 10 January 1935 - 15 June 2016</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000100010&lng=en&nrm=iso&tlng=en Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. These matters are considered in two parts, of which the first appeared in (2015) 21(2) Fundamina 392-456.