The Challenges of Teaching Legal History to a Demographically Diverse and Educationally Under-Prepared Student Body
Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Murdoch University, Western Australia
(2-4th July, 2004)
| Author: |
Caroline Nicholson LLB, LLM, PhD
Professor, University of Pretoria Department of Legal History, Comparative law and Legal
Philosophy
|
| Issue: |
Volume 11, Number 4 (December 2004)
|
Contents
- South Africa, like Australia and New Zealand, is faced with the difficulties associated with teaching a student body characterized
by cultural and economic diversity, that could potentially alienate students from, inter alia, their study material, teacher and educational institution. The challenges posed by cultural diversity are exacerbated by the fact
that sections of the student body come from an educationally disadvantaged background. Such students are often under-prepared for
tertiary education.[1]
- Education will not be truly accessible to all South Africans until a means is found to support the educationally under-prepared student
to achieve his or her full potential.
- South Africa cannot afford to lose the potential these students offer, and the cost of academic support strategies to support these
students alongside their mainstream activities must be weighed against the cost of their failure to complete their studies.
The
introduction of the four-year LLB in South African law schools in 1998, afforded an opportunity for legal academics to evaluate what
they were doing and how they were doing it. The need to revise the curriculum to be multicultural, socially relevant, and internationally
competitive was identified.[2]
As the new curriculum did away with the requirement of a first degree as a prerequisite for those embarking upon legal study, teaching
outcomes were redefined to include reading, writing, verbal and research skills, alongside transfer of knowledge.
- I think that the following quotation clearly illustrates the current challenges facing legal academics worldwide:[3]
"The student cohort will be ethnically diverse, and though multiculturalism is a profoundly rich and positive context for legal education,
both in terms of the curriculum and the student experience, it brings challenges around cross-cultural teaching and learning issues
such as the curriculum, learning styles, the use of language, and to the dynamics of personal and tutorial relationships."
- In the early 1990's there was a call for the Africanisation of South African tertiary education.[4]
The objectives of the process were mass access and democratisation.[5]
This call reflected the need to review tertiary education to address the racial discrimination, segregation of educational institutions,
disparities in resource allocation to institutions at all levels, and wealth and skills differentials of apartheid South Africa.
The process of Africanisation called for increased numbers of African students and staff at tertiary institutions, and an Africanisation
of the curricula at such institutions. In the legal education context the goal of the process of Africanisation was interpreted to
be the production of more black lawyers. The consequence was the admission of increasing numbers of scholars from historically disadvantaged
schools to the study of law. Most of these students are under-prepared for tertiary education.
- Tertiary legal education has thus been systematically flooded with increasing numbers of students requiring academic support. Academic
support strategies are vital and must be supplied alongside mainstream academic activity, however, resource constraints prevent the
provision of adequate academic support to meet the needs of all these students, and thus many are condemned to failure. In addition,
where academic support is available, it is often resented by those who need it. Students often do not perceive their own inadequacies
and resent attempts to address them. They take pride in having faced adversity with sufficient determination to emerge from the secondary
school system with a university exemption.
- Under-prepared students are often a result of deficiencies within the school system, and it has been suggested that tertiary institutions
should seek to start where schools actually leave off, rather than attempting to make up for these deficiencies. In other words,
lower standards. This is not, however, an option for institutions providing graduates to a global workforce. The government thus
requires that tertiary institutions address the problem of under-prepared students by implementing integrated support programmes.[6]
- Moulder called upon South African tertiary institutions to teach a basic undergraduate degree, rather than attempting to match the
standards of its colonial masters. This degree should reflect a new teaching method and a new curriculum. He indicated that academic
support programmes should be abandoned and that lecturers should assume responsibility for each and every student in their teaching
group. In making this call upon educators, he stated that South Africa should throw off the domination of "our teaching and learning...
by the geriatric cultures of the Northern Hemisphere". This statement has been interpreted to mean that Southern cultures have something
to offer, particularly in a local context, but have largely been ignored.
- The views of writers such as Moulder have led to views that emphasise practical training over theoretical training. Hence the importance
of history, the humanities, and social sciences is undermined, and the interconnectivity of legal theory and practice is overlooked
in the quest to create law graduates fitted for the practical legal environment.
- One of the most challenging areas of the law to teach to such a culturally and educationally diverse student body is that of legal
history. Alienation of students from their study material is nowhere more evident, than in relation to the teaching of Roman legal
history in a post-apartheid South Africa. Due to colonialism and the subjugation of traditional law to Roman Dutch and later English
legal traditions which were imposed upon an unwilling local population, there is strong resistance to the teaching of Roman law,
especially in its present form, as part of the South African legal curriculum. Before the implementation of the four-year LLB, Roman
law and legal history constituted two separate courses at most South African universities. However, with only a four-year period
within which to convey the full range of legal knowledge to the student body, there was increased pressure on the core curriculum,
and consequently the number of core courses within the curriculum was limited. Roman law and legal history were amongst the casualties
of curriculum redevelopment. The reason for this is that courses such as legal philosophy and legal history are regarded as peripheral
to legal study rather than central to it.[7]
- Unlike many courses that were relegated to the ranks of elective courses, legal history and Roman law did not disappear from the core
curriculum altogether, but were merged by most South African universities to create a course on the Foundations of South African
Private Law.[8]
The University of Pretoria dubbed this course "Historical Foundations of South African Private Law"(Historical Foundations). Historical
Foundations is offered in the first year of the four-year LLB, and stretches over two semesters. In the first semester the history
of South African legal development is discussed. This history includes, but is not limited to, a detailed discussion of the history
of classical Roman law, its reception, and the reception of Roman-Dutch law into the Cape Colony. The substantive Roman law of things
also forms a module for study in the first semester. The second semester deals in some detail, with the substantive Roman law of
obligations, both contract and delict (tort).
- Historical Foundations is targeted at first-year law students who lack a background in Latin and classics. An advanced course in Roman
law is offered as an elective course in the final year of the LLB for students who wish to acquire a more advanced understanding
of the Roman law sources. In order to make the study material more interesting and accessible to first-year law students, the course
materials were examined. Without Latin, first-years were not equipped to make use of primary sources. Existing textbooks also proved
to be less than ideal as they targeted students conducting a more advanced and detailed study of Roman law. South African law schools
require that first-year students are given an overview of Roman legal history and grasp the general principles of specified areas
of substantive Roman law. In order to meet the clearly defined needs of this student group, textbooks were written by legal academics
for the specific purpose of supporting the course. At the University of Pretoria, the course, Historical Foundations, is currently
supported by a textbook written for students registered for the course, and designed to make the work accessible to a lay-person.[9]
The book gives a clear overview of how South African law was influenced by Roman law, English law and African law. It attempts to
teach the substantive Roman law in such a way as to highlight the relevance of it to modern South African law.
- The presence of such a strong Roman law element in the South African legal history has led to accusations that South African legal
history has been, incorrectly, "Romanised" to reflect the strict divide between public and private law that exists within continental
systems. A divide, which it has been argued, is premised upon the view that the essence of a legal system is to be found in its private
law. Furthermore, the same critics argue that the presumption of legal historians who accede to the Romanist approach, that legal
rules are systematically and logically developed, is faulty. The critics either ignore the fact that legal historians have been able
to trace a golden thread from Roman times to South African law, or alternatively view the thread as a manipulation of the true situation
for political purposes.
- The challenges to Roman law as a core element of South African legal education, predated the implementation of the four-year LLB.
In 1994 a conference was held in Namibia to explore the place that Roman Law should hold within the legal curriculum of Southern
African countries that share a Roman-Dutch heritage.[10]
One of the myriad questions posed at the conference was the question of whether or not Roman law should be discarded along with the
colonial oppression with which its introduction was synonymous. Certainly the development of Roman law would be of little importance
in cultures which would prioritise the development of customary laws and cultures.[11]
- With the end of colonialism and the birth of the age of freedom in Africa, came a desire to shake off the burdens of colonial rule,
including European-based legal systems that had been imposed on African culture. This said, Roman law embodies ethical values and
mercantile institutions that remain of extreme value today. If it is determined that the value of Roman law is such that it continues
to merit a place in the teaching of law in South Africa, then the need arises to address the how of teaching it to a largely African
student body who do not identify with the history that imported Roman law into South Africa. Furthermore, what aspects of Roman law
should be taught?[12]
- The critics of the "Romanisation" of South African legal history are of the view that Romanisation has been displaced by a new constitutional
order that demands that a shift take place from a reliance on rules and legal science, towards a reliance on values and norms. This
approach would, it has been alleged, be facilitated by a recognition that Roman law is but one of a number of legal origins of the
South African legal order. Other legal origins include, legal pluralism, African customary law, and human rights law. Thus, a new
approach would then call for the "de-Romanisation" of South African legal history and an integrated approach to its teaching.
- An integrated approach would call for the teaching of legal history as a separate course to be discarded in favour of the integrated
teaching of legal history in each substantive law course. Alternatively, the history of South African private law should emphasise
the development of modern South African law, rather than Roman law, and the substantive Roman law element in the course should be
replaced by the teaching of the legal development of substantive law in modern South African law.
- Despite these arguments, most South African Universities continue to offer a foundation course that showcases the history of Roman
law and its reception. Many Universities, however, no longer teach a substantive Roman law component. For example, the University
of Natal has developed a thematic model of teaching. They too still teach external legal history, including the Roman legal history,
but have replaced the teaching of substantive Roman law with the historical development of equality, access to justice, and access
to land. The approach is designed to teach both content and skills to students, and focuses on the student's ability to research
and write.[13]
- Roman law is indeed a very important component of South African legal history. A part that is worthy of examination and study. It
is true that legal historians need to recognise and teach other origins of South African law alongside Roman law, however, this is
being done, although perhaps not as extensively as possible.
- With the Africanisation of tertiary institutions came a need to Africanise the curriculum. As African customary law is applicable
to the vast majority of all South Africans, the need for compulsory courses in African customary law and legal pluralism arose. There
are practical problems associated with the teaching of African customary law which are attributable, to some degree, to the colonial
policy as it was applied in the Cape in 1652 and subsequently. Legal pluralism has led to the relegation of customary law to a subordinate
position.[14]
This policy had the effect of marginalising African customary law and severely hindering its further development. Customary law is
in fact not a single body of law, but is rather a variety of such systems unique to individual tribal groups. It is passed down from
generation to generation by way of oral testimony. Its dynamic nature makes it hard to reduce to writing, hence, the customary law
that we find in textbooks is the written law, not the living law. Living law remains inaccessible to all but the members of a given
tribal group.[15]
The written law is largely a western interpretation of customary laws and, as such, is a distortion of the true law that can be both
incorrect and misleading. The difficulties associated with accessing the living law have led to its largely being ignored and overlooked.
The Constitution, however, recognises customary law insofar as it is not contrary to the provisions of the Bill of Rights. This is an important development
but, as the recognition of this law is limited by the proviso, the proviso might arguable be regarded as acting as a form of modern-day repugnancy clause.[16]
- To teach customary law as one of the foundations of South African law, which it undeniably is, is thus no easy task. It is for this
reason that Historical Foundations of South African Private Law deals only briefly with African customary law as an origin of the
modern South African private law. The in-depth teaching of the customary law is left to substantive law courses such as legal pluralism
and African customary or indigenous law.
- Why is Roman law so important to the teaching of South African legal history? South Africa has a hybrid legal system, having been
influenced in its development by the civil law tradition, the Common law tradition, indigenous African law and the human rights movement.
The primary sources of South African law include the Constitution[17]
as the supreme law of the land, legislation, case authority and common law. The South African common law has been strongly influenced
by the civil law tradition and Roman- Dutch law, or, more exactly, the European ius commune.[18]
- South African legal history cannot simply be rewritten because it is politically expedient. No jurist advocates that Roman law was
the sole influence on South African legal development, but it was an important one. The underlying values of justice, fairness, reason,
and honour reflected in Roman law underlie the most liberal of values and principles in the South African constitutional order as
reflected in the preamble that reads:
"We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land...",
and in the Bill of Rights which states that the Bill of Rights
is the cornerstone of democracy in South Africa which enshrines the rights of all South Africans and affirms the values of human
dignity, equality and freedom.[19]
- The Constitution[20]
empowers judges to develop the South African common law, taking account of the principles of justice. Likewise, it provides for limitation
of rights through the development of the common law.[21]
In developing the common law judges are required to promote the spirit, purport and objects of the Bill of Rights.[22]
If judges are able to support the values of the Constitution by harnessing the Roman Dutch law material in defence of dignity, equality and freedom, then that law continues to play an important
role in judicial practice in South Africa as a constitutional resource.[23]
Roman law may also have a formative role to play in bringing about equity and justice based upon reason in the traditional societies
in South Africa. The principles and history of Roman law are analogous to those of customary law.[24]
The juxtaposition of Roman law and African values, such as ubuntu, create an inappropriate and unnecessary tension between the two.[25]
Although the underlying principles and values of western law and customary law differ, they are not incompatible. Both are sources
of South African common law. The fundamental difference between western legal systems and customary law, lies in the stressing of
the centrality of the individual in the former and the stressing of the collective in the latter. Customary law is socialist and
communitarian in its outlook. This said, however, a compromise to meet the needs of a socially integrated community remains possible.[26]
- The Corpus iuris civilis is founded upon values of natural law and justice, which values are timeless. Justinian emphasised justice and promoted honesty,
justice, and reason, values that persist in the South African constitution.[27]
Modern judgements too continue to reflect Roman law values in instances where, for example, policy considerations (boni mores) and principles of good faith (bonae fides) are applied.[28]
- Clearly, therefore, one of the most important historical roots of South African law is Roman law, as it was influenced by the Dutch
law of Batavia and the rest of Western Europe.[29]
This law was brought to South Africa by Jan van Riebeeck in 1652, and continues to influence modern disputes in instances where reliance
is placed upon the Common law, especially in relation to certain identified areas of the private law.[30]
Despite this, lecturers have difficulty in conveying to students the relevance of the study of Roman law to the study of modern South
African law.
- Roman law, legal history and legal philosophy must not be treated as peripheral to legal studies. Without a sound understanding of
such courses, students are unlikely to be able to create the critical thinking skills essential to the development of innovative
legal approaches. While the importance of practical subjects cannot be denied, subjects must still be included in the curriculum
because of their intrinsic academic value.
- Roman law, as an aspect of legal history, is not simply of academic value to the South African law student. Much of South African
private law, especially in the fields of property law, and the law of obligations was founded upon Roman law, and remains little
changed to this day.[31]
For this reason, suggestions that the teaching of Roman law, as part of legal history, shift its focus from the technicalities of
Roman law exclusively to the underlying ethical principles, must fail. Indeed, the legal historian must teach the values of justice,
honesty, and reason that are fundamental to the Constitutional dispensation existing in post apartheid South Africa.[32]
However, the Roman Law of Justinian presents a clear union of a sense of justice, founded upon reason, and man-made laws. A prime
example of this would be application of creative interpretation to develop the Lex Aquilia.
- A proposal has been made that beginners learn Roman law through the Institutes of Justinian. The suggestion is based upon the fact
that this work illustrates most clearly the practical application of natural law.[33]
This proposal was founded upon the belief that the separation of legal rules from the natural law philosophy is one of the principle
reasons for the alienation of the learner from the study material.[34]
Such a shift in focus is supported by those who view the study of Roman law as a study of the general principles that display the
Roman notion of justice, including the principles of natural law.
- Domanski, who makes the proposal, advocates that the Roman law should thus be restricted to Justinianic law, unadorned by texts and
interpretation. Students should, he argues, grapple with the original text of the Institutes, as translated, and be supported by
class discussion and notes. He is of the opinion that other works cloud the direct simplicity of the text.[35]
- Domanski then goes further and indicates that, if one accepts that the true object of teaching first year students is to teach them
the value and practical operation of natural law, then confining the study of natural law to that of Justinian is unnecessarily limiting.
Hence he requires that Roman law be replaced by a course in natural law and reason, accommodating the works of all the leading philosophers
of the movement, especially Gaius.[36]
- Teaching Roman law through the Institutes could have benefits from the point of view of transportability of courses both nationally
and internationally. It offers a birds eye view of the law that is not to be found elsewhere. This said, however, there are problems
associated with the application of such an approach. The Institutes, as the repository of natural law, is not universally accepted.[37]
Translations are needed if the Institutes are to be accessible to modern South African law students,[38]
and the work is simply too big to be covered properly in a single year.[39]
Finally, the lack of fundamental definitions requires that the teaching be supported by tutorials.[40]
- Thomas too, is concerned about the positivistic philosophy that underlies modern legal teaching. He is critical of the obsession of
positivism with hard fact that can be proven by empirical fact, objectivity, rationality and the elimination of value questions from
legal science and the legal profession.[41]
He is of the opinion that such an approach emphasises objectivity and relieves the jurist of any obligation to explore philosophical,
and other factors that are integral to legal development. This is a convenient excuse to avoid analysis of the values that underpin
the positivist philosophy. Positivist philosophy also advances particular interests and values and this cannot be entirely value
free.[42]
This positivist paradigm was challenged by the Critical Legal Studies movement that required the underlying values and influences
of the legal system to be exposed and explored.[43]
This is not being done in the current legal curriculum. Roman law has the potential to introduce students to the importance of extra-judicial
factors in legal development, and to the fact that there are consequently a multitude of possible solutions to legal questions.[44]
"Roman law is eminently suited to teach students that there is no objective, neutral, correct, juridical solution, but that several
solutions are possible, that the choice is determined by time and place and the result of religious, political, economic, social
and other factors."[45]
- This is a theory to which Van Der Merwe too subscribes.[46]
- Irrespective of the disagreement surrounding the how and what, there can be little doubt that Roman law remains a valuable aspect
of the law curriculum. Despite the presence of dedicated textbooks written by authors who are also involved in teaching the course,
there continues to be an unacceptably high failure and drop-out rate. This indicates that study skills and strategies are necessary
for students to reach their full potential.
- The teacher of legal history needs to meet the student's need to acquire study strategies and learning skills within the context of
a legal subject that is perceived to be irrelevant, obsolete and Euro-centric.
- "Long, long ago, in a land far away lived a people. These people lived a quiet agrarian life. At first they were ruled by a king but
after a time he became too powerful and cruel and the people became discontent. They overthrew the king and replaced him with two
elected officials who were responsible for their government for quite a long time. During this time Rome became a centre for trade
and the people became more sophisticated. Later the elected officials were replaced by an emperor who ultimately became a military
dictator. During the various periods of government the law developed. One wise emperor saw that the laws were good and decided to
gather all the laws together into a single work. This work was to be of great importance as a cornerstone of legal development
throughout Europe." Does this sound like a fairy story? Well, indeed it is not legal history, nor yet Roman law. Despite this, South
African law students constantly rail against the teaching of names, dates and detail in Roman legal history. The "fairy story" above
is an example of what Roman legal history might sound like if students were to be allowed to learn legal history in the manner that
they choose.
- As legal academics it is not enough to simply teach material as it has always been done. Modern realities require of us that our learning
materials be both appropriate and relevant. Student-centred learning must be embarked upon, without leading to the bizarre result
of turning Roman law into a fairy tale.
- Of vital importance to significant learning is the relationship between the student and his or her lecturer. This relationship is
often even more important than the teacher's knowledge or teaching skills. It depends upon the attitudes of both the teacher and
the student.[47]
Lecturers must develop sound relationships with their students through the application of an honest, empathetic, and flexible approach
to the learning environment. Rigid learning plans and an unwillingness or inability to empathize engender distrust, resentment or
even hostility that is not conducive to learning and undermines the learning environment. A collaborative approach to learning encourages
a healthy relationship between student and lecturer which will be characterized by increased participation and active engagement
with the study material.[48]
- Large classes are the enemy of effective learning.[49]
Small groups can be used to promote interactive learning but these are costly to implement. Using senior students to assist in teaching
small groups is one possibility which has been widely accepted by most South African universities. Most law faculties and schools
offer tutorial programmes to support students. The purpose of these sessions is to reinforce learning, teach study strategies and
contextualise material so as to make it relevant and meaningful to the student. A tutor system is currently employed in the teaching
of Historical Foundations at the University of Pretoria.
- Supplemental Instruction (SI) is yet another form of peer tutoring that operates within the framework of mainstream academic activity.
It is not a remedial programme. The SI programme was developed at the University of Missouri Kansas City in 1972. In 1993 it was
brought back to South Africa and implemented at the University of Port Elizabeth (UPE). SI leaders actively engage in teaching students
learning and thinking skills whilst allowing them to integrate with a small group of students, lessening their sense of alienation
in a new and sometimes overwhelming environment. The sessions are characterised by interactive learning opportunities that benefit
both the students and the SI leader too. SI sessions deal with the course content as dealt with in the lectures, whilst developing
student's ability to process, study and understand the content. The process acknowledges the importance of non-academic factors in
a student's success or failure. Furthermore, it recognises that study skills cannot be taught in a vacuum and need to be acquired
alongside course content.[50]
- SI improves upon the tutor system and differs from other support programmes in that it targets "at risk" courses rather than "at risk"
students.[51]
It makes use only of senior students who have completed the course successfully. These students then undergo extensive training
in small-group facilitation and study skills.[52]
SI leader performance is constantly monitored and can only work in close co-operation with the member of academic staff responsible
for the presentation of the course. It is a collaborative exercise that requires the co-operation of all participants. Attendance
is voluntary and the agenda for each session is student-centred.
- SI is not available in all law faculties or schools countrywide. It is not yet available at the University of Pretoria, although a
tutor system was introduced in 1994. This tutor system was the subject of a report in 2002 that contained recommendations regarding
training of tutors and their co-ordinators. As a result of this report, representatives of the University have been exposed to SI
training and hope to implement some of its principles and underlying ethos into their teaching, inter alia, in Historical Foundations of South African Private Law. SI principles can be integrated into teaching even in big groups.
- If students are to benefit from teaching, in Roman law, legal history, or any other course, a move towards active, participative learning
and away from simple information transfer is needed. Students must be able to identify the relevance of their study material to their
future career. Tutorial and SI sessions may meaningfully be used to assist in making this vital revelation. Legal history, Roman
law, Philosophy and other oesoteric subjects are doomed if their relevance cannot be conveyed to students and a means found to assist
students to master their content.
[1]
Kleyn DG "The role and function of Roman law in South African legal education" in Spruit JE, Kamba WJ & Hinz MO (eds) (2000)
Roman law at the crossroads at ix (Spruit et al) 73 at 73.
[2]
Greenbaum LA "Foundations of South African law: Teaching legal history from a thematic perspective" 2003 (9) Fundamina 94 at 95;
LeRoux W "The de-romanisation of legal history courses at South African Universities" 2000 (6) Fundamina 129 at 129-130; Ogunronbi
S "The challenges to legal studies in an era of transformation" 1998 (115) SALJ 493 at 499-500.
[3]
Vernon S "Something old, something new. Confronting poor retention among first year law students by restructuring aspects of the
teaching and learning experience" 2002 (36) Law Teacher 44 at 48.
[4]
Moulder J "'Africanising our Universities: Some ideas for a debate'" 1988(72 Theoria 1; Moulder J "Universities and Africanisation"
1995 (9) SAJHE 7.
[5]
Kleyn supra n 1 at 74.
[6]
Kleyn ibid.
[7]
Thomas PhJ "Fin de siècle of funksionele Romeinse reg?" 1998 THRHR 202 at 205; for a discussion of the recurricularisation of the LLB degree see Kleyn idem 74-75 and Olivier NJJ and Du Plessis W "Recurriculization
and legal history: Imperatives, needs and the new higher education context" in Spruit et al supra n1 103 at 105.
[8]
For a discussion of the thinking behind the decision relating to the future role of Roman law and legal history, see Olivier and
Du Plessis idem 110ff.
[9]
Thomas PhJ, Van Der Merwe & Stoop BC (2ed)(2000) Historical Foundations of South African Private Law Butterworths, Durban (Thomas
et al).
[10]
Congress organized by the Department of Roman Law of the University of Utrecht and the Faculty of Law of the University of Namibia,
Windhoek 30 June - 1 July 1997.
[11]
Hinz MO "Acknowledgements" in Spruit et al supra n1at ix.
[12]
Spruit JE in Spruit et al idem at xiv.
[13]
Greenbaum supra n 2.
[14]
Van Niekerk G "A common law for Southern Africa: Roman law or indigenous African law? In Spruit et al supra n1 65 at 85.
[15]
Bhe v Magistrate, Khayelitsha 2004 (1) BCLR 27 (C).
[16]
Thomas PhJ and Tladi D "Legal pluralism or a new repugnancy clause?" 1999 CILSA 354 at 358-360.
[17]
Constitution of the Republic of South Africa Act 108 of 1996.
[18]
For a discussion of Roman-Dutch law as a source of South African law, see Van Der Merwe D "Roman-Dutch law: from virtual reality
to constitutional resource" 1998 Acta Juridica 117; Hewett ML "The Roman law in Roman-Dutch law - Weft or woof? In Spruit et al supra n 1 53ff esp at 59-61; Kleyn in Spruit et al supra
n1 75. For a discussion of the foreign influences on Southern African legal development see Erasmus HJ "Roman law and common-law
in Southern Africa: Past and future" in Spruit et al supra n 6 43.
[19]
Constitution supra n17 s7(1).
[20]
Idem7 s 173.
[21]
S8(3)(b).
[22]
S39(2).
[23]
See Van Der Merwe supra n 18.
[24]
Balatseng DM "Roman law - to assist law reform and law development" in Spruit et al supra n1 7 at 8-12.
[25]
Bankie BF "Sources and resources - Roman and Dutch law- a retrospect" in Spruit et al supra n1 idem 15 at 15. On ubuntu see English
R "Ubuntu. The quest for an indigenous jurisprudence" 1996 AJHR 641; Kaunda K 1966 A humanist in Africa Longmans, London.
[26]
See van Niekerk supra n 14 85ff for a discussion of the different jural postulates underlying the western and the customary legal
systems.
[27]
Domanski A "The ethical argument for teaching Roman law" in Spruit et al supra n1 33 at 35 (Domanski in Spruit et al).
[28]
Van Zyl DH "Roman Dutch law: A South African perspective" in Spruit et al supra n1 169 at 171-172.
[29]
See Hewett supra n 18.
[30]
Kleyn supra n1 75-78
[31]
For examples of Roman law legal principles that are little changed in modern South African law, see Kleyn supra n 1 78-79.
[32]
Domanski A "Teaching Roman law on the eve of the millennium 1997 THRHR 38 (Domanski THRHR). See too The Constitution supra n 17 preamble & s 36. For a discussion of Constitutional development see Olivier and Du Plessis supra n 8 106-107.
[33]
Domanski THRHR idem 39.
[34]
Idem at 40.
[35]
Idem at 43-46; 48.
[36]
Idem at 40.
[37]
Idem 54-55.
[38]
Ibid.
[39]
Idem 56.
[40]
Ibid.
[41]
Thomas supra n9 206
[42]
Idem at 206-207.
[43]
Idem at 207.
[44]
For examples see Thomas, idem 208-212.
[45]
Idem 202.
[46]
Van Der Merwe supra n 18 136-137.
[47]
Rogers C (1969) Freedom to Learn Columbus, Ohio Charles E Merrill Publishing Co at 105-106. See too, Vernon supra 3 at 45.
[48]
Nicholson CMA "Same game, new name? The more things change in legal education the more they stay the same" inaugural lecture 11
May 2004, Faculty of Law, University of Pretoria.
[49]
Woolman S, Watson P & Smith N "'Toto, I've a feeling we're not in Kansas any more': A reply to Professor Motala and others on
the transformation of legal education in South Africa" 1997(114) SALJ 30 at 43.
[50]
Koch E & Mallon P "Evaluation of supplemental instruction: a performance assessment approach" 1998(12) SAJHE 173 at 174.
[51]
Smuts KB "The role of student leaders in supplemental instruction" South African Journal of Higher Education 2002 (16) 225 at 225.
[52]
Idem at 226 -228.
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