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Books > History > African history
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Southern Cross - Civil Law and Common Law in South Africa (Hardcover)
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Southern Cross - Civil Law and Common Law in South Africa (Hardcover)
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This book provides a history of some of the main institutions of
South African private law and in so doing explores the process
through which integration of the English common law and the
continental civil law came about in that jurisdiction. Here is a
book aimed at both European and South African audiences. For
European lawyers it provides a stimulating insight into the way the
process of harmonization of private law has occurred in South
Africa and may occur within the European Union. By analysing the
historical evolution of the most important institutions of the law
of obligations and the law of property the book demonstrates how
the two legal traditions have been accommodated within one system.
The starting point for each essay is the "pure" Roman-Dutch law as
it was transplanted to the Cape of Good Hope in the years following
1652 (and as it has been examined in considerable detail in another
volume edited by Robert Feenstra and Reinhard Zimmerman, published
in 1992). The analysis focuses on how the Roman-Dutch law has been
preserved, changed, modified or replaced in the course of the
nineteenth century when the Cape became a British colony; and on
what happened after the creation of the union of South Africa in
1910. Each essay therefore attempts, in the field of law with which
it is dealing, to answer questions such as: what was the level of
interaction between the civil law and the common law? What were the
mechanisms that brought about the particular form of competition,
coexistence or fusion that exists in that area of law? Is the
process complete or is it still continuing? Is it possible to
observe the emergence, from these two routes, of a genuinely South
African private law? How is the result to be evaluated? In
establishing reception patterns at the level of specific areas of
law, they go beyond generalization about the compatibility of the
two traditions and present evidence of a possible symbiosis of
English and Continental law.
For South African readers the principal value of the book is that
it offers essays by the most prominent South African private
lawyers refelecting on the history of their subjects. It therefore
constitutes the first stage in the writing of a history of
substantive private law in South Africa. So far the focus has
mainly been on the so called "external history" of South African
law, and such texts as there are on the development of the
institutions of private law are often in Afrikaans and mainly to be
found in unpublished theses. Thus this book fulfils a real need for
those teaching South African private law and legal history.
Although the volume investigates a specific aspect of the making of
modern South African law it is imperative not to lose sight of the
fact that private law in that country, as every way else did not
develop in a vacuum, but as part of a wider political and social
prcess. For this reason the book opens with an essay which
contextualizes the contributions that follow, giving a view of the
"setting" in which the development of South Africa took place:
colonial domination, cultural imperialism, and racial and
nationalistic ideologies. Two further introductory essays pay
specific attention to the impact of the procedural framework on the
substantive private law and to the "architects" of the mixed
system.
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