P1-LU4 — The Western Component: Legal Development in Europe (12th–19th centuries)
← P1-LU3 Roman Legal History | Next → P1-LU5 Western Component in South Africa
Learning Outcomes
After studying this unit you should be able to:
- - Describe how different medieval law schools contributed to the reception of Roman law in the Middle Ages
- - Discuss the relevance of canon law in South African legal history
- - Discuss the relevance of the European ius commune
- - Explain what is meant by a Southern African ius commune
- - Understand the importance of the Netherlands in South African legal history
Why Was Roman Law Revived in the 11th Century?
After Justinian's death, the Corpus Iuris Civilis was forgotten for seven centuries. By the end of the 11th century, conditions in Italy created a need for a sophisticated legal system:
- - Economic and cultural prosperity in Italian cities (from ~11th century) spread across Western Europe
- - Feudal system (from 9th century) meant each region had its own separate legal system → legal diversity hampered trade
- - Need emerged for one universal, written legal system
- - Roman law, available in the Corpus Iuris Civilis and known to scholars, was able to meet this need
4.1 The Medieval Law Schools
The Glossators (12th century, Bologna, Italy)
- - First group to scientifically study the Corpus Iuris Civilis (from the beginning of the 12th century)
- - Method: wrote glosses — explanatory grammatical notes on the Corpus Iuris
- - Goal: rediscover and restore Roman law as it was
- - Best-known glossator: Accursius — produced the Glossa Ordinaria (a collection of the best glosses, so authoritative it was always published with the Corpus Iuris)
⚠️ The glossators ensured the very survival of Roman law — without them, it might have disappeared entirely.
The Commentators (Post-Glossators, 13th–14th centuries)
- - Moved beyond pure textual analysis
- - Applied Roman law principles to contemporary legal problems and local custom
- - Made Roman law practically useful in medieval Europe
- - Best-known: Bartolus de Saxoferrato and Baldus de Ubaldis
4.2 Canon Law
Canon law = the law of the Roman Catholic Church (from canon = rule).
- - Developed alongside Roman law in the medieval period
- - Administered by church courts (Hof van den Officiaaal)
- - Applied to matters involving clergy AND, increasingly, lay people (marriage, wills, oaths)
- - Canon law and Roman law together formed the basis of the European ius commune
Relevance for South African law:
- - Canon law introduced good faith and equity (aequitas) principles into the common law
- - Elements of canon law survive today in SA law of contract (good faith, bona fides) and the law of succession
4.3 The European Ius Commune
The combination of Roman law (as taught in the universities) + canon law = the ius commune — a shared body of law applicable across Western Europe.
- - Not identical to any one national system, but provided a common legal vocabulary and framework
- - National/local customs (iura propria) continued to apply alongside the ius commune
4.4 Roman-Dutch Law: Development in the Netherlands
The province of Holland in the Netherlands became particularly important for South African legal history.
How Roman-Dutch law developed
| Factor | Effect |
|---|---|
| Reception of Roman law in Holland | Roman principles combined with Germanic (Dutch) customary law |
| Canon law influence | Introduced good faith and equity |
| Great jurists of Holland | Developed Roman-Dutch law into a sophisticated system |
Key Dutch jurists (Institutional Writers)
These writers are still cited in South African courts today:
| Jurist | Work | Significance |
|---|---|---|
| Hugo Grotius (1583–1645) | Inleidinge tot de Hollandsche Rechtsgeleerdheid | First systematic statement of Roman-Dutch law; also "father of international law" |
| Johannes Voet (1647–1713) | Commentarius ad Pandectas | Commentary on the Digest; widely used in SA courts |
| Simon van Leeuwen (1626–1682) | Censura Forensis / Roman-Dutch Law | Practical guide to Roman-Dutch law |
These writers are collectively called the "old writers" or institutional writers (institutionele skrywers). SA courts treat their works as authoritative sources of the common law.
4.5 The Southern African Ius Commune
Just as Europe developed a shared ius commune, South Africa developed its own:
- - The mix of Roman-Dutch law + English law + indigenous law (under the Constitution) forms a uniquely South African common law framework
- - The Constitution acts as the overarching framework, like the ius commune acted for medieval Europe
Self-Assessment Questions
- - Explain why the Corpus Iuris Civilis was revived in the 11th century.
- - Describe the contribution of the glossators to the survival of Roman law.
- - Explain the relevance of canon law in South African legal history.
- - What is the ius commune and why was it important?
- - Name three key Dutch institutional writers and explain their significance for South African law.