FLS1501 Q & A helpful.

STUDY UNIT 1 Question 1 Complete the following statements by filling in the correct word(s): 1. There are three major components of our law, namely a Western, Indigenous African and Universal component. 2. Since South African law has been influenced by both the RomanDutch tradition and the English tradition we can say that our legal system is "mixed" or hybrid. 3. There is no comprehensive written version of South African law which has the force of legislation. In other words South African law is not codified. 4. Transplantation refers to the importation of a legal system into an area which has no legal system. 5. Reception refers to the willing adoption of a legal system by a community which already has an existing legal system. 6. In South Africa, the term "common law" refers to Roman Dutch law as influenced by English law. This "common law" is regarded as a source of South African law. However, in a broader sense, the term "common law" also refers to the legal systems of countries, such as the United States of America and Australia, which have been influenced by English law. These legal systems are then also known as "commonlaw systems". 7. Two countries / states outside Europe and Africa where Roman law exercised an influence are Japan and Turkey. 8. The Roman law is an important source of the Western component of our law. 9. The internal history of the law relates to the origins and development of legal rules and principles. 10. The external history of the law relates to political, constitutional, sociological, economic and religious factors which have contributed directly or indirectly to the development of the legal system. 11. The South African Law Commission is currently investigating Islamic law of marriage with a view to integrating it into the South African legal system. 12. The history of the Western component of our law starts with the foundation of Rome (or 8th century BC; or 753BC). 13 The origin of the universal component of our law is traced to the rise of the natural-law theory as developed by Greek and Roman thinkers and by the early Christian church fathers from the 4th century AD onwards. 14. Although historical investigation usually focuses on the Western foundations of human rights, Islamic thought also impacted on its development. 15. The Bantu-speakers occupy the greatest part of Africa south of the Sahara (Sub-Saharan Africa). They established themselves south of the Limpopo 1500 years (approximately AD 500) ago. However, this was not the time when their law first developed. 16. There are four phases of the reception of Roman law in Western Europe. The first, starting in the 5th century AD when a few Roman-law rules were randomly incorporated into the indigenous European customary law, is known as the infiltration/pre-reception phase. The second, in the 12th century, was the phase of the intellectual rediscovery of Justinian's Roman law. Thirdly, the 13th and 14th centuries saw an increase in the scientific study of Roman law. This was known as the early reception phase. And, finally, during the 15th and 16th centuries when Roman law was incorporated into the legal systems of some European countries forming part of their common law, we speak of the reception in complexu/reception proper of Roman law. Question 2 a. Name the three components of our legal system and explain briefly what is meant by each. (6) • Western component refers to Roman-Dutch and English influences in our law– which comprises Roman-Dutch and English law • Indigenous (African) component – which comprises indigenous African law • Universal component – which comprises human-rights law b. The South African legal system has three components, namely a Western component, an indigenous African component and a universal component. Briefly explain what each of these three components consists of. (4) • Western component – starts with the foundation of Rome 753 years before the birth of Christ (753BC). In the 4th century AD (more specifically, 395 years after the birth of Christ) the Roman Empire split into an Eastern and Western Roman Empire. Constantinople (or what is today known as Istanbul in Turkey) became the capital of the Eastern Roman empire and Rome (in what is today known as Italy) became the capital of the Western Roman Empire. The origins of our law can therefore, firstly, be traced to the Western Empire. • African component refers to African Indigenous law – the earliest African history, and with it the history of African law, is essentially (preliterate) history that is the history of peoples without writing. • Universal component refers to human rights law – can be traced back to the rise of the natural-law theory as developed by both Greek and Roman thinkers even before the birth of Christ, and the early Christian church fathers from the 4th century AD onwards. c. Explain briefly why the South African legal system is characterised as a hybrid legal system. (3) Since South African law has been influenced by the Roman tradition Dutch law and the English tradition, therefore, we can say that our legal system is "mixed" or hybrid. d. What is the difference between (i) reception (ii) transplantation and (iii) superimposition of a legal system? Illustrate your answer with examples from South African legal history. (4) (i) Reception is the voluntary adoption of the rules and principles of a foreign legal system by an existing legal system. Reception implies a desire to receive on the part of the recipients. (ii) Transplantation is the importation of the rules of a foreign legal system into an area where there is no (sophisticated) legal system. (iii) Superimposition is the imposition of the rules of a foreign legal system onto the subjects of another legal system against their will, or without their co-operation. e. Explain the meaning of: - the external history of the law, External history of the law traces sources and factors which have contributed directly or indirectly to the development of a legal system. - the internal history of the law.