Article by Marc Aupiais
The Irony about the South African Common Law, is its basis on the Roman (Roman Dutch) Civil law. The fact that South Africa's common law is based on the same law mostly used in civil law countries- lies in the fragmented times of Rule of Britain and Holland in our nation's territory.
The British have a common law system, even as most of Europe is based on civil law concepts. The British believe in precedent, as does South African legal science- to a degree, though more firmly in lower courts.
The Italian Glossators of Bolonia, Italy- who rediscovered the Corpus Iuris Civilis and Roman law, and much of western legal science, however- teach us another lesson- a lesson about philosophy.
The Secular Natural Lawyers- known as the Humanists- despised the Glossators for allegedly creating false legal security. The Humanists being, to my knowledge: those who justified colonialization and the conquering of Africa- are also more focused on by many: than the Glossators, but the Glossators teach us something- a powerful lesson which emerged with their fallacy.
They divided the concepts of Roman Law into smaller concepts, they defined these until the law became uniform and would not contradict itself. It is how they reintroduced true legal science to Europe. It is also how they allegedly misread the law.
The secret truth the Glossators of Bolonia teach us is that of division. Philosophy is the love of truth- the finding of the source of things, and thus their position. From the source of a thing, what divides it from others may well be discovered truly...
The Glossators misdefined concepts- blinded by ideological beliefs and too much belief in the law of Justinian, they drew the lines between concepts incorrectly- yet in doing so, they teach us a truth.
How one separates one concept from another is often how logic is twisted. To separate a child and an adult in one way is just- a child cannot define their destiny to the same extent- yet to separate two living beings with human DNA into human person and human non-person is fallacy- one which has sadly entered South African legal thought. The problem lies in the division.
To avoid the mistake of the Glossators on everyday matters- one should not simply separate concepts on the surface- based on practicality. One must look to the source of the difference and its cause, in context, with understanding and comprehension. One must further look into the source of the thing which is divided from another... In and on itself, and perhaps the source of the other also.
This said, how the Nazis murdered about ten million people- was by purposely dividing concepts of what human is and is not, without just boundary. The true division was not between human person and non-person, a just judgement would never call a human being a non-person, yet politics and political advancement caused this division- an unjust division to emerge.
It is by false division that abortion flourishes- for the source of man is ignored in dividing his personhood into unjust divisions. It is by this false division that nationalism emerges, and persons of one culture or race kill, murder those of another, with no just cause for killing.
The secret of the Glossators is simple- how one defines the world tells us who and what one truly obeys- and whether one desires truth or mere practicality. The Glossators of Bolonia- these early medieval legal scholars: were not wrong to divide concepts from each other- the Glossators failed Europe by dividing the law out of context. This same misreading of law was used by later lawyers, important members among the Humanists of the later time- if I remember: to justify the bloodshed which conquered Africa and Australia.
How we define the world, our worldview - our "faith" in whatever way of defining the world we have, is what determines our actions. I believe it better to find the source of a division first- to seek the truth, and thus define the difference from its beginning. Or as closely to this source of a thing as is possibly viable.