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1
Jansen, C. J. H., and W. J. Zwalve. "De Wetenschap Van Het Oudvaderlands Privaatrecht En Het Tijdschrift Voor Rechtsgeschiedenis." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 61, no. 3 (1993): 401–9. http://dx.doi.org/10.1163/157181993x00240.
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AbstractThe history of Dutch private law, or - as it was called - 'ancient national law' ('oud vaderlands recht'), which was taught at Dutch universities since the days of S.J. Fockema Andreae sr (1844-1921), suffered from at least three serious disadvantages, viz. the absence of anything like a "Dutch nation" before the creation of the modern centralized state in 1798, the absence of anything like a "national law", least of all private law, before the enactment of the first Dutch civil code of 1809 and the inability to come to terms with the reception of Roman law, which was regarded as a cataclysmic event brought about by the "unhistoric" attitude of sixteenth-century Dutch lawyers (S.J. Fockema Andreae jr in 1950). Hence the emphasis on pre-reception medieval law and public rather than private law. On the other hand, the Dutch civilians were interested in "classical" Roman law rather than the history of private law after the reception of Roman law in the Netherlands. To most of them Roman law had become distorted and disfigured in the process. So the study of the history of substantive private law of the era between the reception of Roman law and the enactment of the first civil code was rather unattractive to both groups of legal historians. To the "germanists" national law was tainted with Roman law, whereas to the civilians, the "romanists", Roman law had become contaminated by the mould of ancient customary and statutory law and the expediency of legal practitioners. So, in spite of the fact that the very same era is commonly regarded as the heyday of Dutch legal science (Voetius, Grotius, Vinnius), no comprehensive introduction to what is also commonly regarded as a most important Dutch contribution to European legal culture, viz. "Roman-Dutch" law, was ever written in the Netherlands. Students had to be referred to R.W. Lee's Introduction to Roman-Dutch Law, an English textbook! The volumes of the Tijdschrift voor Rechtsgeschiedenis bear witness to this sorry state of affairs. There are many learned and solid articles on subjects of classical Roman law and French customary law, but relatively very few on subjects of substantive Dutch private law and even less on subjects of "Roman-Dutch" law. There is, of course, an explanation for this. The "germanists" had (and have) their own magazine, the "Verslagen en Mededeelingen" ("Reports and Proceedings"), published by de "Vereniging tot uitgaaf der bronnen van het oud-vaderlands recht" (the "Society for the edition of the sources of ancient national law"), founded in 1879, whereas there is also, as far as "Roman-Dutch" law is concerned, the "Tydskrif vir Hedendaagse Romeins-Hollandse Reg", published in South Africa. There is another consideration to be taken into account too: much of what has been written on the history of substantive Dutch private law in the last 75 years was not, or at least not primarily, written with a public consisting of legal historians in mind, but in view of practical questions of and developments in modern Dutch private law intended to be read by legal practitioners, rather than the professional historians. That is why so much which would have been of interest to professional historians at large, was published in Dutch and in Dutch legal journals. So, in the final analysis, it is the international profile and the emphasis on history that have prevented the publication of more articles on the history of substantive Dutch private law in the volumes of the Tijdschrift voor Rechtsgeschiedenis.
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Kotlyar, Ilya A. "Bankruptcy and the Praetorian Pledge: The Law of the Books and the Law in Action in the Early Modern Netherlands." Studia Iuridica 80 (September 17, 2019): 181–96. http://dx.doi.org/10.5604/01.3001.0013.4799.
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The article points out at the discrepancy between the different Mss. of the Roman Justinianic text: Littera Pisana and Littera Bononiensis. The discrepancy entailed that the doctrine of medieval Ius Commune offered stronger protection of the collective rights of the creditors, in comparison with the Classical Roman law. The Roman Dutch “Elegant School”, despite its general reliance on the original Roman sources, already in the writings of Grotius demonstrated allegiance to the medieval doctrine on the issue of bankruptcy. The authors of the “Elegant School” continued to prefer the medieval interpretation of the creditors’ rights and bankruptcy, although Dutch practice was, in many respects, drastically different from the Ius Commune doctrine. This ensured a strong protection of creditors in bankruptcy in Dutch law.
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Mańko, Rafał. "PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ." Zeszyty Prawnicze 3, no. 1 (March 29, 2017): 139. http://dx.doi.org/10.21697/zp.2003.3.1.05.
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ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions.
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Schäfer, Lawrence. "The judicial development of the Roman-Dutch doctrine of parental authority in South African law." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 76, no. 1-2 (2008): 133–53. http://dx.doi.org/10.1163/157181908x277590.
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AbstractThe Roman-Dutch doctrine of parental authority differed markedly from the parallel doctrine in English common law, particularly in relation to the balance of power between parents and generally in relation to illegitimate children. This paper traces the judicial development of the Roman-Dutch doctrine by the South African courts and focuses on two important turning points, at which the unnecessary adoption of principles of English law resulted in a departure from Roman-Dutch principles. The product of this judicial development was a doctrine of parental authority that differentiated sharply between legitimate and illegitimate children, and greatly impeded the capacity of judges to apply the 'best interests' principle in disputes concerning the latter.
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Henning, Johan. "Perspectives on financial crimes in Roman‐Dutch law." Journal of Financial Crime 16, no. 4 (October 9, 2009): 295–304. http://dx.doi.org/10.1108/13590790910993771.
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van Hoof, Vincent J. M. "Grotius’s Contribution to the Law of Secured Credit." Grotiana 44, no. 2 (December 29, 2023): 247–75. http://dx.doi.org/10.1163/18760759-44020003.
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Abstract Over the centuries, Grotius’s writings on onderzetting (rights of hypothec) have been widely cited, particularly in the Netherlands and South Africa. This article investigates the originality and lasting impact of Grotius’s contributions to this field. The article follows the layout of the chapter on hypothecs of Grotius’s Inleiding tot de Hollandsche Rechts-geleertheyd. It examines Grotius’s translation of hypotheca as onderzetting, the structure of his Inleiding, the distinctions between various kinds of hypothec, and contemporary requirements for the creation of hypothecs. It then explores the right to follow encumbered assets into the hands of third parties and analyses the enforcement of hypothecs, priority issues in cases of competing hypothecs, and reflects on Grotius’s influence on Dutch security rights. In summary, although Grotius’s insights were largely derivative, often echoing interpretations of earlier scholars, they illustrate Grotius’s deep understanding of the influence of Germanic and Roman law on Roman-Dutch security rights. Grotius had a lasting impact on legal scholarship and practice because he was the first to provide a scholarly systematization of Roman-Dutch law within the framework of Justinian’s Institutes and firmly placed the rights of hypothec in the book on property rights of his Inleiding.
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Waelkens, Laurent. "Classical Roman Law, a product of interpretation from the Early Modern Times." Tijdschrift voor Rechtsgeschiedenis 87, no. 4 (December 19, 2019): 575–97. http://dx.doi.org/10.1163/15718190-00870a08.
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SummaryThe study of the Roman law we know today, started in the twelfth century and was based on sources preserved from Roman Antiquity. The interpretation of these antique texts was, however, always contemporary and never reflected their original meaning. In this article we assess the importance of medieval and early modern interpretation and, by analyzing a series of thirteen classical notions of Roman law, illustrate how what we call “classical Roman law” nowadays found its origins especially in Early Modern Times. The article also brings an English summary of a series of articles we wrote in French and Dutch.
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de Jong, Hylkje. "De zorgplicht van de bruiklener: van custodia naar culpa." Pro Memorie 21, no. 1 (January 1, 2019): 27–53. http://dx.doi.org/10.5117/pm2019.1.003.dejo.
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Summary The borrower’s liability, as stated in article 7A:1781 section 1 of the Dutch Civil Code, differs from the Roman law tradition. In Justinian and Medieval Roman law the borrower’s liability was determined in accordance with the utility principle. As a consequence, the borrower was in some cases even without fault liable for theft. Roman law still played a role in the development towards the rule in the Dutch Civil Code, but ultimately the influence of the French Civil Code turned out to be stronger and has to be considered as the turning point in the interpretation of the borrower’s liability. The duty of care of a borrower comprise now merely due diligence (‘zorg van een goed huisvader’). Judges make a proper assessment to determine the liability of the borrower, taking into account the interests of the parties, the obligations of the parties and the circumstances.
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Sanders, A. J. G. M. "Law Reporting in Swaziland." Journal of African Law 29, no. 1 (1985): 94–101. http://dx.doi.org/10.1017/s0021855300005659.
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The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.
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Oppong, Richard Frimpong. "Roman-Dutch law Meets the Common law on Jurisdiction in International Matters." Journal of Private International Law 4, no. 2 (August 2008): 311–27. http://dx.doi.org/10.1080/17536235.2008.11424342.
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Roes, Sebastiaan. "The reception of Justinian's legislation on the Edict unde vir et uxor in the reformed statutes of certain provinces of the (northern) Netherlands in the 17th century." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 80, no. 1-2 (2012): 157–70. http://dx.doi.org/10.1163/157181912x626957.
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AbstractRoman law has always had a moderate influence on Dutch customary law. The reception of Roman law can be found mainly in the Dutch provinces of Holland, Zeeland, Utrecht, and most of all in Friesland. This was manifested inter alia by the reception of canonic testamentary law and Justinianic intestate succession law into the reformed statutes of certain provinces and cities in the Early modern period. In some cases even a reception of the Edict unde vir et uxor can be found, e.g. in the Dutch provinces of Groningen (1601, 1618), Drenthe (1712) and in the northern part of Limburg (upper Guelders, 1620). But generally speaking this Edict's claim to fame is limited to a select group of renowned 17th century Dutch jurists, who mentioned it in their scholarly works.
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Milo, J. M. "Van Vaderland en Vreemdeling." Pro Memorie 22, no. 1 (January 1, 2020): 21–40. http://dx.doi.org/10.5117/pm2020.1.003.milo.
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Summary Old Dutch law illustrates the dynamics in law between ‘own’ and ‘other’ law, between universality and particularity, private and public interests. Dit opstel is een bewerking van de rede gehouden ter gelegenheid van de aanvaarding van de eerste wisselleerstoel Oudvaderlands recht, uitgesproken aan de Universiteit Gent op 6 december 2018. The stranger happened to be underprivileged in old Dutch substantive as well as procedural private law – more and longer than usually thought. In paricular strangers from near and far were easily taken into debtor’s arrest, on their person and property, based on the creditor’s own local and customary law. Out of the amalgam of old Dutch law the Learned (Roman) law counterbalanced post factum by providing fundamental arguments of universal value against debtor’s arrest, on the free market of trade and law.
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Straumann, Benjamin. "Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius's Early Works on Natural Law." Law and History Review 27, no. 1 (2009): 55–86. http://dx.doi.org/10.1017/s0738248000001656.
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The Dutch humanist Hugo Grotius (1583–1645) is widely acknowledged to have made important contributions to an influential doctrine of individual natural rights. In this article I argue that Grotius developed his rights doctrine primarily out of normative Roman sources, that is to say Roman law and ethics. If this Roman tradition has been as central to Grotius's influential writing on natural rights as I claim, why has it not received more scholarly attention? The reasons lie in the view that while rights are constitutive of modern liberty, they were unknown in classical antiquity.
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Mawardi, Imam. "Islamic Law and Imperialism: Tracing on The Development of Islamic Law In Indonesia and Malaysia." AL-IHKAM: Jurnal Hukum & Pranata Sosial 13, no. 1 (July 31, 2018): 1–24. http://dx.doi.org/10.19105/al-lhkam.v13i1.1583.
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This study has demonstrated that the Dutch and British occupation in Indonesia and Malaysia, proves Edward Said’s assessment of imperialism a vehicle for cultural hegemony. In terms of the law, the Dutch influence on the development of legal system in Indonesia cannot be denied. Likewise, British imperialism also impacted the legal systems of Malaysia in a profound sense. Dutch colonialism, which lasted for approximately 350 years in Indonesia, left its mark on the region by introducing Roman law to the Islamic Judiciary, as did the 160 years of British colonialism in Malaysia, witnessed in the forced application of Common law. From political perspective, the changes wrought to the legal system and to Indonesian Islam are the consequence of Dutch political policies which claimed to be “modernizing” Indonesia. The pervasive influence and legacy of Dutch rule on the Indonesian legal system is the practice of codification. Many developments overtaking Indonesian. Islamic law is a manifestation of this practice. Efforts to unify and create uniformity with respect to the source of law, have resulted in the enactment the law of Marriage no. 1/1974, the law of the Religious Judiciary no. 7/1989, and Kompilasi Hukum Islam di Indonesia (Compilation of Islamic Law in Indonesia) among others. However, it is naïve to view such recent developments as mere products of the influence of Dutch rule. Sociologically, developments in other realms such as education, economy, social and political structures should also be taken into account when considering the development of Islamic law.
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Thomas, Philip. "Wishful Thinking; the Role and Development of Good Faith in the Roman Law of Contracts." PRÁVNĚHISTORICKÉ STUDIE 51, no. 3 (December 20, 2021): 19–36. http://dx.doi.org/10.14712/2464689x.2021.30.
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The paper outlines the theoretical achievements of the work of the Dutch historian Jan Romein and the legal historian and romanist Hoetink, which have become common wisdom in time. However, application of new insights into historical narratives has often been hesitant because of the “anything goes” mentality. This paper approaches one of Roman law’s holy cows, namely the role and development of good faith in the Roman law of contracts and questions whether a move from historical interpretation to legal history may provide another narrative.
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Van Huyssteen, Louis. "Some Notes On Roman-Dutch Law At the Cape Under British Rule." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 62, no. 3 (1994): 357–65. http://dx.doi.org/10.1163/157181994x00069.
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Budiono, Arief, Aries Isnandar, and Alfalachu Indiantoro. "Legal Settlement Policy in the Community of Sodong Ponorogo Village: A Comparison Between National Law and Alternative Disputed Resolution (ADR)." International Journal of Multicultural and Multireligious Understanding 8, no. 9 (September 24, 2021): 411. http://dx.doi.org/10.18415/ijmmu.v8i9.3059.
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In this study, the author must focus on legal and social issues that interact with law at the regional (local), national, regional, and international levels. This is to determine the extent to which legislation meets philosophical, sociological, and juridical values. we know that Indonesia is a country that adheres to the European Continental legal system or Civil Law, actually this system came from the Netherlands which at that time colonized Indonesia for more than 350 years, at that time the Dutch laid the legal foundation "Civil Law" is the oldest legal system and most influential in the world. This legal system stems from the Roman-German tradition. Around the 450th century BC, the Roman Empire made their first set of written rules called the "Twelve Tables of Rome". This Roman legal system spread to various parts of the world along with the expansion of the Roman Empire. This legal system was later codified by Emperor Justinus in the 6th century. The Corpus Juris Civilis was completed in 534 AD. When Europe began to have its own government, Roman law was used as the basis of the national laws of each country. Napoleon Bonaparte in France with its Napoleonic Code in 1804 and Germany with its Civil Code in 1896.
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van Rhee, C. H., and Louis Sicking. "Geen leven na Oxford? Rechtshistorici uit de Lage Landen (16)." Pro Memorie 23, no. 2 (December 1, 2021): 127–48. http://dx.doi.org/10.5117/pm2021.2.002.rhee.
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Abstract Apart from details about youth and family, the focus of this interview with Boudewijn Sirks is on his academic career. After studying law, theology and philosophy, he graduated with a DPhil on an aspect of Roman administrative law. He then specialised in Roman law in all its aspects and in almost all of its periods of application. An extension of this led him to research further in the legal history of the Dutch East Indies. Having worked at the Universities of Utrecht, Amsterdam and Leiden, he became Professor at the J.W. Goethe University in Frankfurt for private law and legal history, then Regius Professor of Civil Law in the University of Oxford, where he is still Fellow of All Souls College. The interview deals with the differences between legal educations in the Netherlands, Germany and England and with his views concerning the methodology of legal history.
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Rantsane, Ditaba Petrus. "The Origin of Arbitration Law in South Africa." Potchefstroom Electronic Law Journal 23 (November 3, 2020): 1–27. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a8963.
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This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.
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Druwé, Wouter. "Representation in Business: Grotius’s Inleidinge and the Ius Commune Tradition in the Low Countries." Grotiana 44, no. 2 (December 29, 2023): 293–333. http://dx.doi.org/10.1163/18760759-44020005.
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Abstract In his Inleidinge tot de Hollandsche Rechts-geleerdheid, Hugo Grotius wrote an accessible introductory overview of Hollandic law, in which he combined insights from the learned law (ius commune) with the particular law of Holland. The Inleidinge was read by generations of Dutch law students, and would thus become very influential in the Roman-Dutch tradition. This contribution studies how the topic of representation, especially in a business context, was treated in Grotius’s Inleidinge. On the basis of an analysis of the Justinianic Corpus iuris, the medieval ius commune tradition and – especially – early modern scholarship from the Low Countries, it is argued that Grotius’s Inleidinge by and large followed the communis opinio among the learned scholars, although on one important point – namely the acquisition by a third party of a claim on the basis of a stipulatio alteri – Grotius went beyond that communis opinio and, thus, opened the way for a gradual wider legal acceptance of active direct representation.
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Whitman, James Q. "The Moral Menace of Roman Law and the Making of Commerce: Some Dutch Evidence." Yale Law Journal 105, no. 7 (May 1996): 1841. http://dx.doi.org/10.2307/797235.
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Schrage, E. J. H. "Sale Breaks Hire - or Does It? Medieval Foundations of the Roman-Dutch Concept." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 54, no. 2 (1986): 287–96. http://dx.doi.org/10.1163/157181986x00031.
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Schrage, E. J. H. "Sale Breaks Hire - or Does It? Medieval Foundations of the Roman-Dutch Concept." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 54, no. 4 (1986): 287–96. http://dx.doi.org/10.1163/157181986x00158.
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Wallinga, Tammo. "Schmerzensgeld und actio iniuriarum aestimatoria." Tijdschrift voor rechtsgeschiedenis 83, no. 1-2 (May 31, 2015): 226–47. http://dx.doi.org/10.1163/15718190-08312p11.
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Compensation for non-pecuniary loss and the actio aestimatoria, The case of Van Kreuningen/Bessem. – In the case Van Kreuningen/Bessem of 1943, the Roman actio iniuriarum (aestimatoria) was used as an argument in favour of granting compensation for non-pecuniary loss. This is surprising for a number of reasons, not least because it was a penal action. In this article, the action and its value as an argument is studied in the wider context of the history of compensation for pain, suffering and disfigurement in Dutch law before and after the codification of 1838.
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Hallebeek, Jan. "Some remarks on laesio enormis and proportionality in Roman-Dutch law and Calvinistic commercial ethics." Fundamina 21, no. 1 (2015): 14–32. http://dx.doi.org/10.17159/2411-7870/2015/v21n1a2.
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Van der Schyff, Elmarie. "Constitutional Interpretation according to First National Bank of SA Limited T/A Wesbank v Commissioner for the South African Revenue Services and another; First National Bank of SA Limited T/A Wesbank v Minister of Finance 2002 (7) Bclr 702 Cc." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 6, no. 2 (July 10, 2017): 151. http://dx.doi.org/10.17159/1727-3781/2003/v6i2a2872.
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“Constitutional interpretation” has become the focus point of all lawyers and academics interested in the development of Constitutional Law in South Africa. But far more important than mere interest, is the practical application of the Constitution in every matter handled by lawyers and presided over by presiding officers. Words, phrases and ideas, foreign to the Roman-Dutch judicial system, have entered our jurisprudence. New concepts have emerged and old, familiar concepts have been re-defined. It is essential to define these new concepts. The guidelines for this interpretation process, laid down by the Higher Courts, specifically the Constitutional Court, are indispensable for the development of Constitutional Law in South Africa.
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Karyoto, Karyoto. "TANAH ASET PT. PANCA WIRA USAHA MILIK PERUSAHAAN DAERAH PROPINSI JAWA TIMUR DIDUDUKI MASYARAKAT." Jurnal Aktual Justice 3, no. 2 (December 15, 2018): 173–88. http://dx.doi.org/10.47329/aktualjustice.v3i2.541.
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The origin of land asset PT Panca Wira Usaha owned by East Java Province company, obtained from former land of western rights, relics of Dutch company at the time of colonize in Indonesia. Dutch dominate the land through Verenigde Oost - Indische Compagnie (VOC). VOC is a Dutch-owned legal entity engaged in trade. Before VOC control land in Indonesia, the control of the land is still done by Kings in the territory of his power, as well as by the customary law community within its territory.
When the VOC came to Indonesia around 1577 with the intention to trade and made the kingdom of Mataram a protectorate and since then the role of local officials gradually began to change.
The arrival of VOC in Indonesia aims for the following matters:
Prevent competition among Dutch traders
Obtain a trade monopoly in south Asia or exclusively master the spices both in producing and trading
VOC as a Dutch-owned legal entity engaged in trade, it is a little more know the public legal aspects as the influence of Roman law, although no relation belongs to the land, but VOC make agreements with the landowners as if to voc charge as an obligation to rent land through an agreement that is essentially so that the visible aspect of democracy appears.
The Dutch Government established factories in big cities after the VOC successfully mastered inland village for agriculture, plantation and others. One of the factory is Oil Factory "N. V OLIEFABRIEKEN INLINDIE" or known as "Pabrik Minyak Nabati-Yasa PT Panca Wira Usaha", located in Kediri City Government of East Java Province, which is currently a problem between PT Panca Wira Usaha, East Java Provincial Government Owned Enterprises with the Community of the landowners.
The main issue is the provisions of the Law regulating the Dutch Heritage Company, such as Law No. 86 Of 1958 about the nationalization of Dutch-owned enterprises in Indonesia, not supported by UUPA No. 5 Of 1960 on the basic rules of agrarian basic.
While UUPA No. 5 Of 1960 has not been clear in explaining and describing the meaning and substance of the land of the former western rights of the Dutch company, resulting in land tenure by the community.
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Steyn, Lienne. "Execution against a debtor's home in terms of Roman-Dutch law and the contemporary South African law: comparative observations." Fundamina 23, no. 2 (2017): 94–117. http://dx.doi.org/10.17159/2411-7870/2017/v23n2a6.
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Chanock, Martin. "Writing South African Legal History: A Prospectus." Journal of African History 30, no. 2 (July 1989): 265–88. http://dx.doi.org/10.1017/s0021853700024130.
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This article outlines the approach to the writing of South African legal history being taken in a book in progress on the South African legal system between 1902 and 1929. It suggests that legalism has been an important part of the political culture of South Africa and that, therefore, an understanding of legal history is necessary to a comprehension of the South African state. It offers a critique of the liberal notion of the rule of law as a defence against state power, arguing that in the South African context ideological and legitimising explanations of law should be de-emphasised in favour of an approach which emphasises the instrumental nature of law in relation to state power. Elements of the existing legal and historical literature are briefly reviewed.The basic orientation is to consider the South African legal system as essentially a post-colonial British system rather than one of ‘Roman-Dutch law’. The study is divided into four parts. The first looks at the making of the state between 1902 and 1910 and considers the role and meaning of courts, law and police in the nature of the state being constructed. The second discusses ‘social control’. It considers the ideological development of criminology and thought about crime: the nature of ‘common law’ crime and criminal law in an era of intensified industrialisation; the development of statutory criminal control over blacks; and the evolution of the criminalising of political opposition. The third part considers the dual system of civil law. It discusses the development of Roman-Dutch law in relation to the legal profession; and outlines the development of the regime of commercial law, in relation to contemporary class and political forces. It also examines the parallel unfolding of the regime of black law governing the marital and proprietal relations of blacks, and embodied in the Native Administration Act of 1927. The final segment describes the growth of the statutory regime and its use in the re-structuring of the social order. It suggests that the core of South African legalism is to be found in the emergence of government through the modern statutory form with its huge delegated powers of legislating and its wide administrative discretions.
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Holfeld, Raphael, and Julia-Katharina Horn. "II. Calefurnia – eine römische Frau im Sachsenspiegel?" Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 139, no. 1 (July 1, 2022): 40–85. http://dx.doi.org/10.1515/zrgg-2022-0002.
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Abstract Calefurnia – a Roman woman in the Sachsenspiegel? Written, oral, and iconographic traditions. The reference to Calefurnia in Sachsenspiegel Landrecht II 63 § 1 has sparked several theories about how Eike came to know the story of the Roman woman Carfania mentioned in D. 3,1,1,5. Did he have access to the Digest? Did he undergo higher education in a monastery? Was he educated in Roman canon law? This article argues that he might have been inspired by a broadly used exemplum of Carfania as a litigious and talkative woman. By pointing out differences between the Digest and an ordo iudiciarius ‘Tractaturi de iudiciis’, it strongly opposes Landau’s thesis about the source of Eike’s knowledge by pointing out resemblances to Val. Max. VIII,3. A Schwabenspiegel manuscript of 1287 adds the interesting detail of Kæfurna showing her bare backside to the emperor. This storyline can also be traced through medieval and early modern literature. Puzzlingly enough, a Dutch Sachsenspiegel manuscript from the 15th century tells yet another version of the story referring to calefurnan ‘breaking wind’. The Sachsenspiegel picture books show Calefurnia with an unidentifiable object in varying shapes that has been interpreted as a depiction of misbehaviour considering the different additions to the story. Overall, the alterations of the anecdote offer a glimpse into the rich tradition surrounding the story of Calefurnia respectively Carfania.
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du Bois, François. "The Past and Present of South African Law." International Journal of Legal Information 32, no. 2 (2004): 217–36. http://dx.doi.org/10.1017/s0731126500004091.
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In January 1672, nearly twenty years after the Dutch East India Company had established an outpost at Africa's Cape of Good Hope, a case was adjudicated by the rudimentary local judicial body, the Council of Justice, the significance of which was evident even then. The facts were simple. Members of the indigenous population were accused of having robbed and assaulted European servants of the Company. The legal question before the Council, however, was an intricate one. Did it have jurisdiction over the accused and could it apply to them the same law as would have been applied if the roles of perpetrator and victim had been reversed? The prosecutor successfully urged an affirmative answer. Citingthe Roman Emperor Justinian's Corpus Iuris Civilis, he argued that: “Since the law of nature is implanted in all reasonable creatures, the Hottentots cannot be excluded therefrom. They are consequently subject to the law of nature and therefore also the law of nations …”
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Sachs, Albie. "The Future of Roman Dutch Law in a Non- Racial Democratic South Africa: Some Preliminary Observations." Social & Legal Studies 1, no. 2 (June 1992): 217–27. http://dx.doi.org/10.1177/096466399200100206.
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Vengesai, Priccilar, and Sibongumuzi Zibusiso Mnkandhla. "The dilemma of gender inequality in the delict of seduction: A Zimbabwean perspective and some lessons from South Africa." De Jure 55, no. 1 (August 4, 2022): 1–17. http://dx.doi.org/10.17159/2225-7160/2022/v55a7.
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In Zimbabwe, the delict of seduction has two species, namely seduction under common law derived from Roman-Dutch law and seduction under customary law. The universal feature in these species is that they were both conceived in patriarchal societies marred with gender inequalities. These inequalities were exhibited, inter alia, in stiffer sexual mores being imposed on women. In these societies, men allotted property rights to themselves over the sexuality of women who were perpetually under their tutelage. Conceptually, it is argued that the delict of seduction is a legal incarnation of these gender inequality-stricken notions. This paper unmasks the plethora of prejudices, challenges and gender inequalities which are engineered by the delict of seduction during litigation and draws on hegemonic masculinity in patriarchal societies as a theoretical framework.
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Moloto, Thato M. "Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts." South African Intellectual Property Law Journal 9 (2021): 67–86. http://dx.doi.org/10.47348/saipl/v9/a4.
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This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.
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van der Merwe, Stephan. "The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview." Fundamina 28, no. 1 (2022): 140–70. http://dx.doi.org/10.47348/fund/v28/i1a4.
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In South Africa, wage garnishment is achieved through the emolument attachment order (hereafter “EAO”) mechanism. This civil debtcollection instrument plays a significant role in South African society, affecting the lives of potentially millions of people. It is therefore concerning that the mechanism is often criticised for lacking effective measures to prevent, monitor, identify and then correct irregularities in the collection of debt through EAOs. This contribution considers the historical context that directed the development of the South African EAO mechanism and the composition of the current South African framework regulating EAOs. It considers South Africa’s unique legal approach resulting from the development of common-law procedural affordances supporting a predominantly civil-law substantive system. It analyses the role of Roman law, Roman-Dutch law, English common law, and the constitutional dispensation in shaping the contemporary EAO mechanism. In the process, the study identifies challenges that have been present since the mechanism’s earliest origins, which can be traced through its historic development and remain contentious in its contemporary version. The study is significant since the EAO mechanism has not yet been subjected to a comprehensive and critical analysis of this kind. Limited research has been conducted on the South African EAO mechanism and there has not been any detailed analysis of its history and development. It is submitted that such an analysis is a necessary first step to facilitate further in-depth comparative research with the aim of developing an effective and fair EAO mechanism.
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Fombad, Professor Charles Manga. "Botswana and the Dynamics of Legal Modernisation within a Dual English Common Law/Roman-Dutch Legal Heritage." African Journal of International and Comparative Law 13, no. 1 (March 2005): 7–24. http://dx.doi.org/10.3366/ajicl.2005.13.1.7.
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De ruysscher, Dave, and Ilya Kotlyar. "Local traditions v. academic law: collateral rights on movables in Holland (c. 1300-c. 1700)." Tijdschrift voor rechtsgeschiedenis 86, no. 3-4 (June 27, 2019): 365–403. http://dx.doi.org/10.1163/15718190-08634p04.
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Summary In the County of Holland, in the sixteenth and seventeenth centuries the rules regarding security interests in movables changed fundamentally. Rules of doctrine came to be combined with rules found in local law, that is the bylaws of cities and regions. This went together with the re-interpreting of fragments of older bylaws. In 1631 Grotius’ Inleidinghe categorized the lien of the unpaid seller after delivery of the merchandise sold as entailing a reivindicatio. This new rule was adopted in cities in Holland, even though it ran counter the earlier approach that third-party effects of sales in this regard were very limited. Also, the new line of thought that holders with a legitimate title did not respond to pledgees pushed out older conceptions on tracing for some special pledges. In their legal writings Dutch authors after Grotius attempted to construe consistent solutions; in the legislative practice of cities, older rules could be preferred over new ones. Bylaws of cities, to which authors of Roman-Dutch doctrine referred as well, stipulated limits on tracing by unpaid sellers. All the mentioned developments were not determined by changes in the market, even though they could be incited by them. Legal change in Holland, even in the Golden Age of the seventeenth century, was due more to the embracing of academic ideas than to responsiveness to economic conditions.
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Mosaka, Tshepo Bogosi. "The Black Flame (part two): Snyman’s Criminal Law." South African Journal of Criminal Justice 34, no. 3 (2021): 442–60. http://dx.doi.org/10.47348/sacj/v34/i3a2.
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This is the second of a trilogy of papers (entitled after WEB du Bois’s trilogy of novels titled The Black Flame) reviewing Snyman’s Criminal Law. The decision to commence working on the review was made after encountering the unprecedented section on African customary law in the latest edition of the book. This is a major achievement for this work that promises an exciting change of direction. This paper focuses on four areas in which the book can proceed further into this new direction. These include: (i) a comprehensive clarification of the underlying jurisdictional complexity within which South African criminal law (as inheritor of Roman-Dutch and English law) currently finds itself; (ii) the comparative nature and source of Snyman’s preferred arrangement of his general principles of criminal liability; (iii) the brief account of legal history in the introductory section; and (iv) the section on African customary criminal law. The overall argument made is that a northbound-gazing criminal law scholarship makes comparative criminal law between South Africa and European jurisdictions virtually impossible. The next edition of Snyman’s Criminal Law will be served better by a comparative focus on African jurisdictions and less on Europe.
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Madhuku, Lovemore. "Vicarious Liability of an Employer for the Delictual Acts of his Servant under Zimbabwean Law." Journal of African Law 38, no. 2 (1994): 181–88. http://dx.doi.org/10.1017/s0021855300005519.
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The doctrine of vicarious liability is easy to define but difficult to apply. In the recent Zimbabwean case of Fawcett Security Operations (Pot) Lid. v. Omar Enterprises (Pvt) Ltd., the Supreme Court held that a security company (the employer) who provided a security guard (the servant) to detect and prevent theft from the respondent's supermarket was not vicariously liable for the servant's subsequent theft of the very goods he was meant to guard. It is difficult to support this decision and its indirect effect is to call for a re-examination of this part of the law. Accordingly this article seeks to revisit the doctrine of vicarious liability under the Zimbabwean law of delict and to argue that (i) the decision in Fawcett Security was based on a wrong reading of the authorities; (ii) that the decision is inconsistent with the classical Roman-Dutch Law (as distinct from South African authorities); and (iii) that the decision fails to give effect to the real basis of vicarious liability under Zimbabwean law.
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Van Den Bergh, G. C. J. J., and C. J. H. Jansen. "Het Juridische Tijdschrift Gevestigd; Den Tex En Van Hall's 'Bijdragen Tot Regtsgeleerdheid En Wetgeving' (1826-1838)." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 61, no. 1-2 (1993): 97–119. http://dx.doi.org/10.1163/157181993x00114.
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AbstractAfter some attempts in the eighteenth century and the first decade of the nineteenth, the law review finally established itself in the Netherlands with the Bijdragen tot Regtsgeleerdheid en Wetgeving, which C.A. den Tex and J. van Hall brought out in 1826. Under different names the review existed until 1894. The review naturally reflects current legal issues in its time and offers its readers valuable yearly surveys of new legislation, court decisions and legal literature appearing in France, Germany and England. The codification process is followed critically. There is as yet no trace of legalism. Court decisions get as much attention as legislation, if not more. But that is not the main concern. The advancement of legal scholarship in the great tradition of the famous Dutch school is an important motive of the editors. Roman law and legal history are very prominent. But law-professors are not; they are out-numbered by far by learned advocates. As far as Roman law is concerned the editors hold that since it is no longer in force, it must be studied historically. One is bound no more to the canon of texts in the Corpus Juris or the doctrines well established in legal practice for ages, but historically untenable. New finds like Gaius' Institutes and the Fragmenta vaticana are welcomed and studied assiduously. The influence of Savigny and the Historical School is prominent, but criticism does not fail. The editors publicly reject the formation of schools, because these inevitably create one-sidedness.
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Rautenbach, Christa, and Willemien du Plessis. "African Customary Marriages in South Africa and the Intricacies of a Mixed Legal System: Judicial (In)novatio or Confusio?" Symposium: Mixed Jurisdictions 57, no. 4 (November 8, 2012): 749–80. http://dx.doi.org/10.7202/1013030ar.
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South Africa has a mixed legal system comprised of transplanted European laws (the core being Roman-Dutch law, subsequently influenced by English common law) and indigenous laws, referred to as customary law. This mix is also evident in South Africa’s marriage laws, which can roughly be divided into two categories: civil marriages or unions, and African customary marriages. Since 1994, the developments in these two categories of marriage have been revolutionary. The case law reads like a jurisprudential chronicle of factual situations never contemplated by the legislator, and the judiciary must resort to innovation to solve the intricacies of a constitutionalized mixed legal system. To deal with the challenges posed by the interaction of two seemingly equal legal systems in one legal sphere, the courts have followed a variety of approaches including legal positivism, the application of common law principles, and, more recently, the notion of transformative constitutionalism. The primary aim of this essay is to discuss the sometimes innovative and at other times confusing approaches followed by the judiciary in dealing with the complexities created by a mixed legal system, especially with regard to marriages between Africans.
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Bhana, D. "The future of the doctrine of economic duress in South African contract law: The influence of Roman-Dutch law, English law and the Constitution of the Republic." Acta Juridica 2021 (2021): 107–40. http://dx.doi.org/10.47348/acta/2021/a5.
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In England, the contractual doctrine of economic duress is an important mechanism for curbing abuses of superior bargaining power. In contrast, in South Africa, the courts are yet to articulate a definitive doctrine. In this article, I argue for a twenty-first century South African doctrine of economic duress that is delineated primarily in terms of South Africa’s foundational constitutional value of equality. For this purpose, I consider English contract law and show how it is a concern for ‘equity’ that has been central to its treatment of economic duress. I then highlight the normative limitations of the English doctrine, but argue that the English legal experience of economic duress remains valuable for corresponding developments in the modern South African commercial context, especially in light of the latter’s post-apartheid constitutional framework, which provides the normative content of baseline standards that must inform its doctrine of economic duress.
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Himonga, Chuma, and Fatimata Diallo. "Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3267.
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The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools.This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.
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Iqbal, Firdaus Muhamad. "KONTRIBUSI SISTEM CIVIL LAW (EROPA KONTINENTAL) TERHADAP PERKEMBANGAN SISTEM HUKUM DI INDONESIA." Jurnal Dialektika Hukum 4, no. 2 (December 15, 2022): 180–200. http://dx.doi.org/10.36859/jdh.v4i2.1120.
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The legal system is a set of regulations, including commands, restrictions, and permissibility. The Civil Law System and the Anglo-Saxon System are the two legal systems now in use in the world. As a legacy of the Dutch colonial authority, Indonesia follows the Civil Law system, or Continental Europe. A normative legal research methodology using secondary data types was used. The Civil Law system, which emerged in countries in Mainland Europe and was codified from Ancient Roman Law, is the subject of this study's findings and discussion. The 13th century saw the beginning of the movement of this system, which has a lengthy history and is inextricably linked to economic, political, and intellectual forces in Western Europe. This system of laws acknowledges the division between public and private law. The Civil Law system is characterized by the existence of a codification or legal record that preserves the law and serves as a foundation or mechanism for judges to act and uphold the legal system documented in the law. The three dimensions of the national legal order, which is based on the Civil Law legal order, are the maintenance dimension, the renewal dimension, and the creative dimension. Along with these features, the Civil Law system also strengthens Indonesia's legal framework by, among other things, creating new laws, discovering new laws, and using judges as law's mouthpieces to enforce laws that affect people's daily lives.
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Vuye, Hendrik. "Possession et actions possessoires: Belgique, Pays-bas et France. A la recherche d’un ius commune?" European Review of Private Law 11, Issue 3 (June 1, 2003): 321–41. http://dx.doi.org/10.54648/erpl2003024.
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Abstract: The protection of possession forms part of the Ius Commune between Belgium, France, and the Netherlands. This does not come as a surprise, as the armies of Napoleon have imposed on other countries the rules from Articles 23-27 of the old French Code de procédure civile. Nowadays this protection of possession can still be found in the legislation of these three countries, albeit in differing degrees of intensity. Belgium law emphasizes the “policing” function of claims based on possession: he who is disturbed in his possession can ask to be put back into proper possession. This is solely due to the fact that the other party has breached the ban on taking the law in their own hands. In contrast, Dutch law focuses on the actual function: the party in possession is protected against third parties, but not against parties having a “better” right. The French legislator emphasizes the “policing” function, but also takes into consideration the actual function by declining protection against parties from whom the aggrieved party has received the property in question. In fact, this debate is old. Does one have to opt for the protection of the parties having a “better” right, as shown in the action publiciana, or does one have to implement the ban on taking the law in one’s own hands, as done in the interdictions of Roman law?
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Cornelius, Ian, and Kathy Young. "Medieval Manuscripts at Loyola University Chicago." Manuscript Studies: A Journal of the Schoenberg Institute for Manuscript Studies 8, no. 2 (September 2023): 387–98. http://dx.doi.org/10.1353/mns.2023.a916138.
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Abstract: This article provides a summary overview of the collection of pre-1600 western European manuscripts in Loyola University Chicago Archives & Special Collections. The collection presently comprises four manuscript codices, at least thirty-eight fragments, and four documents. The codices are a thirteenth-century book of hours from German-speaking lands; a fifteenth-century Dutch prayer book; a preacher's compilation written probably in southern Germany in the 1440s; and two fifteenth-century Italian humanist booklets, bound together since the nineteenth century, transmitting Donatus's commentary on the Eunuchus (incomplete) and an anthology of theological excerpts, respectively. The fragments consist of thirteen leaves from books dismembered by modern booksellers (most are from fifteenth-century books of hours) and a larger number of binding fragments, all but two of which remain in situ. These represent the remains of ten manuscript books: four Latin liturgical books, two texts of Roman civil law, one large-format thirteenth-century Italian Bible, one thirteenth-century copy of Ptolemy's Almagest in the translation of Gerard of Cremona, one late fourteenth-century copy of the Ockhamist Tractatus de principiis theologiae , and one fifteenth-century Dutch book of hours in the translation of Geert Grote. Many of these materials have remained unidentified until now.
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Hadi Pratama, Widodo, I. Nyoman Nurjaya, and Lucky Endrawati. "Ratio Legis Differences in Abortion Provisions in Law Number 36 of 2009 Concerning Health and the Criminal Code." International Journal of Social Science Research and Review 5, no. 9 (September 11, 2022): 131–45. http://dx.doi.org/10.47814/ijssrr.v5i9.613.
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This research seeks to identify, describe, and analyze why the health law regulates abortion for rape victims while under the Criminal Code abortion is illegal and regarded a crime, as well as the abortion provisions for rape victims that should be regulated in the Health Law. In this paper, normative legal research was conducted. This research focuses on the Legis Ratio of Differences in Abortion Provisions in Law No. 36 of 2009 Concerning Health and the Criminal Code. The method utilized is the statutory approach. The findings revealed that the prohibition against abortion, which is a Dutch heritage, is prohibited in the Criminal Code because abortion is regarded antithetical to natural law and cannot be ethically justified in Greek and Roman law. The Health Law is permitted under the condition that there is an indication of a medical emergency and because the pregnancy is caused by rape, taking into account the good name of a woman or her family, if the pregnancy is caused by rape and can cause psychological trauma to the rape victim, including for the victim's unborn child. Nevertheless, the provisions in the health law do not provide legal certainty that the time limit for performing abortions on rape victims is six weeks/forty days from the first day of menstruation; this time is deemed insufficient to provide protection for victims due to the limited time required to obtain consent to allow abortions or not.
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Berkvens, A. M. J. A. "'Zur Abkurtzung unnötiger Processualweitläufigkeiten', Een bijdrage over de geschiedenis van het Hof van Appel te Thorn 1718–1795." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 74, no. 1-2 (2006): 121–48. http://dx.doi.org/10.1163/157181906776931180.
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AbstractUntil the end of the War of the Spanish Succession, the constitutional status of the former kaiserlich freie Reichsstift Thorn in the present Dutch province of Limburg was disputed. After the Emperor Charles VI had established its constitutional position as a member of the Holy Roman Empire in 1718, a Court of Appeal was established to symbolise Thorn's sovereignty and serve as an intermediary court between the local lower jurisdictions and the Reichskammergericht and the Reichshofrat. The organisation and jurisdiction of the Court of Appeal were laid down in ordinances by the sovereign abbess Francisca Christina of Paltz-Sulzbach (1717–1776). Since the Court's judges did not reside in Thorn – they lived predominantly in the free imperial town of Aachen – complaints about undue delay in civil proceedings and the high cost involved urged the sovereign abbess to directly intervene in the Court's jurisdiction. The ensuing conflicts negatively affected the Court's credibility, as is evidenced by the number of revision petitions and appeals lodged with the Reichskammergericht from ca. 1775 onwards. Reform efforts undertaken by the sovereign abbess Maria Cunegonda of Saxony (1776–1795) arrived too late to restore the credibility and authority of the Court of Appeal.
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Putra, Widyanuari Eko, Nurdien Harry Kistanto, and M. Suryadi. "Colonial Discourse and Resistance in the Novel Perawan Desa by W.R. Supratman." SUAR BETANG 18, no. 1 (June 3, 2023): 1–19. http://dx.doi.org/10.26499/surbet.v18i1.453.
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W.R. Supratman wrote the novel Perawan Desa (1929) in the colonial era. The novel tells the life of colonial society in the Dutch East Indies era. This study examines the colonial discourse and resistance in the novel with a postcolonial approach. The colonial discourse in question is discrimination, racial superiority, and racism. Forms of resistance in question are stereotype, mimicry, ambivalence, and hybridity. The method used is descriptive qualitative. As a result, the novel contains colonial discourses and resistance. Acts of racial superiority and racism are shown in scenes of harsh treatment of natives, and different treatment before the law. The mimicry is shown in the imitation of the way of dressing, attitude, and reading habits of Dutch novels. The negative assumptions about other parties outside the group show the stereotype is shown in the negative assumptions about other parties outside the group. The ambivalence is shown in the indigenous interest in Dutch newspapers and the Dutch dislike of working as government employees. Hybridity is shown in the embodiment of Dutch houses decorated with local ornaments and the nickname "mientje" for native women. This novel complexly shows colonial discourse with strong responses against it. AbstrakW.R. Supratman menulis novel Perawan Desa (1929) pada era kolonial. Novel itu bercerita tentang kehidupan masyarakat kolonial pada era Hindia Belanda. Penelitian ini mengkaji wacana kolonial dan resistensi dalam novel tersebut dengan pendekatan poskolonial. Wacana kolonial yang dimaksud ialah diskriminasi, superioritas ras, dan rasisme, yang disampaikan melalui tindakan dan ucapan tokoh. Adapun bentuk resistensi adalah stereotipe, mimikri, ambivalensi, dan hibriditas yang disampaikan dalam bentuk penampilan, cara berpikir tokoh, dan bentuk tempat tinggal. Metode yang digunakan dalam penelitian ini ialah deskriptif kualitatif. Novel Perawan Desa menyuarakan wacana kolonial berupa ucapan orang Belanda yang menyatakan rasnya lebih unggul, perlakuan kasar terhadap bumiputra, dan perbedaan perlakuan di depan hukum. Resistensi terbukti pada tindakan mimikri berupa peniruan cara berpakaian dan kebiasaan membaca roman Belanda. Ambivalensi terbukti pada asumsi negatif terhadap pihak lain di luar kelompoknya, ketertarikan bumiputra pada koran Belanda, dan ketidaksukaan orang Belanda pada pekerjaan pegawai kolonial. Hibriditas terbukti pada pewujudan bangunan rumah Belanda yang dihiasi ornamen lokal dan panggilan “mientje” pada perempuan bumiputra. Novel ini secara kompleks menunjukkan wacana kolonial dengan tanggapan yang kuat terhadapnya.
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Sonnekus, JC. "Gierigheid is die wortel van alle kwaad." Tydskrif vir die Suid-Afrikaanse Reg 2023, no. 2 (2023): 175–208. http://dx.doi.org/10.47348/tsar/2023/i2a1.
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The judgment in Maqubela v The Master leaves room to revisit some established norms in private law that define under what circumstances a subject may be disqualified and found to be unworthy to benefit financially from his/her behaviour against another – including the deceased. The deceased Maqubela AJ took out a significant life policy (R20 million) on his own life two weeks before his death. At the time of his death he was still married in community of property to his wife but was seriously contemplating divorce. His wife was not only aware of the significant life insurance that had just been taken out, but also of his contemplation of divorce. She was much annoyed about his multiple adulterous affairs over many years and even mentioned as much to the minister of justice the day before his sudden death in a deliberate way so as to discredit him in the eyes of the minister. After the sudden demise of the insured life under suspicious circumstances, the widow was originally found guilty of premeditated murder of her husband and of the fraudulent production of a document presented to the master of the high court as the last will of the deceased that was proven to be a falsification in every respect. For the second offence she was sentenced by the court of first instance to prison for three years. On appeal the supreme court of appeal upheld her appeal regarding the conviction on the murder charge, but the other conviction remained intact. In the civil case under discussion the court had to decide whether the widow as claimant was entitled to half of the common estate with inclusion of the R20 million insurance benefit as well as to lay claim as beneficiary under the norms of intestate succession to the widow’s part of the deceased’s estate. It is submitted that the well-known “bloedige hand” rule, which excludes the person responsible for the death of the deceased from benefiting under the law of succession from the estate of the deceased, is merely an example of the underlying broader principle encapsulated in the text from Roman law “nemo ex suo delicto meliorem suam condicionem facere potest” (D 50 17 134 1): “No one is allowed to improve his own condition by his own wrongdoing” or “no woman should profit from her own wrong”. This principle can be found not merely in every civil law legal system but is also recognized in all common-law jurisdictions as can be deduced inter alia from the judgment in Karen L Postlewait v Ohio Valley Medical Center, Inc, a Corporation, et al, and Ohio Valley Medical Center, Inc, a Corporation, and The Estate of Robert L Postlewait, where Maynard JA on 8 Dec 2003 in the appeal to the supreme court of appeal of West Virginia held: “However, the majority equally fails to consider the possibility that Mrs Postlewait’s misconduct in pushing her husband off the porch played a significant role in her husband’s death. Clearly, the chain of events that led to Mr Postlewait’s death were directly put in motion by Mrs Postlewait. Mrs Postlewait filed a medical malpractice/wrongful death action against her husband’s medical providers and successfully negotiated a settlement netting herself more than half a million dollars! Given these circumstances, I am unable to find that Mrs Postlewait is entitled to profit from her husband’s death. Accordingly, I respectfully dissent” (31406). Clearly the claim of Mrs Postlewait to the resulting benefit of more than half a million dollars was unrelated to any claim founded on the law of succession. The quoted Latin maxim is a venerable old maxim in equity and should have been at the root of the judgment in the Maqubela case where there is room to suspect that the old adage still applies: the love of money is the root of all evil. In light of the proven circumstances surrounding the demise of the late acting judge and the fraudulent attempt by his widow Maqubela to pass herself off as the primary testamentary beneficiary of his estate, reasonableness and equity prescribed that the erstwhile wife may neither lay claim to the significantly enhanced half of the common estate thanks to the life insurance benefit nor claim a child’s share as the widow’s portion of the estate of the deceased as governed by the law of intestate succession. Her conduct regarding the proven crime of the falsification of the will should have excluded her as unworthy beneficiary from any form of financial benefit from her marriage to the deceased including the claim to half of the common estate. Matthaeus, the most prominent Old Authority on the implications of this principle in Roman-Dutch law, clearly states in Zinspreuken 6:4 that the disqualified unworthy spouse is also excluded from benefitting from the enhanced half of the common estate under the guise of the default principle of a rightful holder of half of the common estate. Modern Dutch law applies the same underlying principle to prevent unjustified enrichment of the wrongdoer. The principle of legal certainty in South African law did not benefit by this judgment. Not merely does it ignore the standing principles of Roman-Dutch law, but it also compares unfavourably with the outcome in related scenarios in comparable other legal systems.