1

STELLENBOSCH UNIVERSITY

FOUNDATIONS OF LAW 178 – 2023

LEGAL TRADITIONS*

TABLE OF CONTENTS

1 Introduction: the concept of a legal tradition

2 The main legal traditions

21 Indigenous or customary tradition

22 The civil law tradition
23 The common law tradition
24 Religious legal traditions
2 4 1 The Talmudic legal tradition
2 4 2 The Islamic legal tradition
2 4 3 The Hindu legal tradition
25 East Asia and the Confucian legal tradition

3 Concluding remarks

___________________________________________________________________________

1 Introduction: the concept of a legal tradition

At the beginning of the Foundations of Law module we considered what law is. Thereafter,
the focus shifted to the law's functions. But the approach was rather static in the sense that it
was only concerned with the law of the present. We did not really enquire into how law
develops over time as the product of various influences or forces. And the approach was also
rather one-dimensional in the sense that we also did not deal with the related phenomenon
that different laws may apply to different regions or peoples across the world. In this
regard the law we study is therefore quite unlike scientific laws, which are formulated to
apply indefinitely and universally.
 2

A sound understanding of the dynamic and varied nature of the law is vital to being a well-
rounded jurist. Why are laws so different across the world, and why do they change over
time? For example, why do some legal systems recognise juries, while others have either
never recognised juries or abolished them? Or why do some legal systems recognise that
parties to a contract must display 'good faith' to each other, but others remain firmly opposed
to such a notion? When seeking to answer these questions the concept of a legal tradition is
of central importance.1

In its simplest form, a tradition is a belief, or way of doing things that existed for a long
time. Its roots lie in the Latin verb tradere, meaning 'to deliver' or 'to hand down'. These
origins suggest that we are dealing with something handed down continuously over time.

The word 'tradition' sometimes has the connotation of something inherently good or self-
justifying. The implication is that traditions need not be explained rationally or be measured
by an external standard or set of values. This can be unproblematic, for example when a
tradition is something as simple as greeting a person in a particular way. But it may also
present challenges. For example, at some university residences there may be 'welcoming
practices' that are justified on the basis that they form 'traditions', and hence are inherently
worthy of continued adherence and respect. However, university authorities in turn at times
question and even oppose those traditions on the grounds that they undermine basic rights,
such as dignity and freedom, and challenge residences to develop new, more inclusive
traditions.2

A further example concerns the traditions of indigenous peoples which historically have been
marginalised due to colonialism or globalisation. In reaction, the United Nations has adopted
a Declaration on the Rights of Indigenous Peoples of 2007, which contains various
provisions that recognise and promote the traditions of indigenous peoples. 3 The question
then arises what the limits of indigenous traditions are, and especially to what extent they
have to conform to 'external' standards.

1
*These notes were drafted by Prof Jacques du Plessis for use in the Foundations of Law module presented at
the Faculty of Law of Stellenbosch University.
See generally T Duve 'Legal traditions: A dialogue between comparative law and comparative legal history'
2018 6(1) Comparative Legal History 15–33
https://www.tandfonline.com/doi/full/10.1080/2049677X.2018.1469271
2
The poet TS Elliot (1888-1966) pointed out that there may be a particularly strong awareness of traditions
when they have lost their vitality, but that this should not cause concern, since a healthy source would
produce new traditions ('After Strange Gods': " We become conscious of these items [i.e., traditions], or
conscious of their importance, usually only after they have begun to fall into desuetude, as we are aware of
the leaves of a tree when the autumn wind begins to blow them off - when they have separately ceased to be
vital. Energy may be wasted at that point in a frantic endeavour to collect the leaves as they fall and gum
them onto the branches: but the sound tree will put forth new leaves, and the dry tree should be put to the
axe.').
3
Resolution adopted by the General Assembly on 13 September 2007, 61/295.
 3

But enough about 'tradition' in general. What changes when the word 'legal' is placed before
the word 'tradition'? The following definition of a legal tradition by the American legal
historian John Merryman (1920-2015) has traditionally enjoyed some support. According to
him it is

" ... a set of deeply rooted, historically conditioned attitudes about the nature of law, about
the role of law in the society and the polity, about the proper organization and operation of the
legal system, and about the way law is or should be made, applied, studied, perfected, and
taught.4

This definition is a mouthful, but simplified it contains the familiar core elements of tradition,
i.e., long-held 'attitudes', which are essentially forms of behaviour and belief, now applied to
various aspects of the law. Somewhat simplified, Merryman's concern is especially with how
legal traditions provide a broader context within which we can understand a legal
system. 'Legal system' is itself a disputed notion, but it may simply be defined as the modern
or current law of a particular entity, typically a sovereign state. You may have heard
reference being made to "the South African legal system". This phrase appears often in our
case law, and is sometimes used synonymously with "South African law". So one could argue
that your study of modern South African law could be enhanced by an understanding of the
legal traditions that are relevant to the development of this legal system over time, or to put it
more simply, that are relevant to its history.

From this it should be quite clear that a very narrow link exists between studying legal
traditions and legal history. Elsewhere in this module, we will consider in more detail what
is meant by legal history, and more specifically what the core features are of South African
legal history. But before this is done, we first have to know a bit more of the main legal
traditions of the world, and especially those that are relevant in the evolution of South
African law. In this regard the following passage by Froneman J in Beadica 231 CC v
Trustees, Oregon Trust5 requires particular attention.

'A country's choice of how it conceives its contract law is influenced by its social, political
and economic history, how it views that history and how it chooses to forge its fundamental
values into its conception of contract law... This should not be a controversial statement.
There are discernible differences in perspective and emphasis in what was, before the
Constitution, the two sources of our mixed legal system, the civilian tradition and the
English common law tradition. To that mixed legal heritage the Constitution now adds its
own overarching objective value system. This must inform not only our views on our mixed

4
JH Merryman and R Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of
Western Europe and Latin America 3 ed (2007). For a more detailed treatment of definitions see Duve 2018
6(1) Comparative Legal History 15.
5
2020 5 SA 247 (CC) para 110.
 4

common law and civilian heritage, but must embrace also the neglected 'third grace'
[footnote 221]6 of our legal heritage, namely African customary law and tradition.'

The Beadica case concerned a dispute over whether tenants who failed to renew a lease on
time should be excused from doing so. They argued that it would be unfair to expect of them
to have renewed the lease on time. This required that the Constitutional Court had to grapple
with the fundamental problem of how to promote fairness in our law of contract. This in turn
led Froneman J to consider how this problem has been dealt with historically. From the
passage above you will notice the following:

 The civilian tradition and the common law tradition are two sources of our mixed
legal system.
 African customary law and tradition is a neglected 'third grace' of our legal heritage.
 The Constitution adds an 'overarching objective value system' to our legal heritage.

So ultimately three legal traditions are of particular importance in the context of South
African law, namely i) the civil law or civilian tradition; ii) the common law tradition; and iii)
African customary tradition.

But what are their essential features? It must be admitted that the names of the first two
traditions are not particularly descriptive: what does 'civilian' mean, and why 'common' law?
It may also be asked whether there are other legal traditions that may not traditionally be
regarded as particularly relevant in the South African context, but also deserve attention. And
finally, what is the relationship between these traditions and the Constitutional value system
that Froneman J refers to? Is this value system 'above' the traditions or does it actually form
part of (some of) them? Just reflect for a moment on the remarks made earlier about whether
traditions could be measured against external standards or whether they justify themselves.

In the next section, we turn to these and related questions, which are not only relevant to the
rest of this module, but also your degree course in general.

2 The main legal traditions

6
Footnote 22 reads: ' Zimmermann & Visser ... explain the neglect of the third grace thus: "The three Graces
of the South African legal system are civil law, common law, and customary law. The free spirit of the third
Grace makes it difficult for her to join in the circle. To enable her to do so may be one of the great
challenges of the new South African legal order. Someone may then, perhaps, be able to tell the story of the
Africanisation of Roman-Dutch law in twenty-first century South Africa." [Emphasis added]'. The 'three
Graces' were three Greek goddesses, often portrayed together in works of art.
 5

Our overview of legal traditions of the world starts with the oldest of them all. This is the
indigenous or customary tradition. A modern representative of this tradition is African
customary law, as applied in Southern Africa. Thereafter the focus shifts to two traditions that
have their origins in the West but have assumed global significance, if not dominance,
through processes of imposition as well as through voluntary adoption. And finally, we
briefly consider the remaining traditions, which are associated with some religions or
regions.7

21 Indigenous or customary tradition

Origins: It is not possible to identify a specific moment in which the indigenous or customary
tradition established itself. Suffice it to say that, as the oldest of all the traditions, its origins
are understandably shrouded in the mists of time, when early human communities must have
started developing rules or norms that govern their behaviour. These communities evolved at
different times across the globe, but undoubtedly some of the earliest examples are human
settlements in southern Africa, whose origins can be traced to more than 100 000 years ago,
which incidentally is significantly earlier than settlements in Europe, which date to about 40
000 years ago.

Nowadays virtually no indigenous peoples live purely according to customary tradition, but
rather in contexts where it interacts with other traditions. Thus, in South Africa, various
indigenous communities nowadays still live in accordance with the customary tradition, but,
as the quote from the judgment of Froneman J in Beadica above indicates, the legal system
also recognises other traditions, which to some extent have overshadowed it. This has been
the experience in many parts of the world. Sometimes customary tradition has been
completely supplanted by other traditions. For example, in many parts of Europe, oral, rather
than written law was the norm till it was supplanted by the end of the 10th century. 8 But
customary traditions can also co-exist with others in a relationship that sometimes is
described as 'legal pluralism', a concept you will consider in more detail in the module on
African customary law.

Core features: Certain core features of the indigenous or customary tradition sets it apart
from other traditions.9

7
The exposition below draws on the works of the Canadian jurist Patrick Glenn (1940-2014), and especially
his Legal Traditions of the World – Sustainable Diversity in Law 5 ed (2014). Glenn adopts a somewhat
broader approach to legal traditions than Merryman's definition above, and refers to legal traditions as
'normative information' (whatever that might mean). Nonetheless, Glenn's study of particular legal traditions
provides a wealth of learning on global legal history (see Duve 2018 6(1) Comparative Legal History 15, 27,
32). One may therefore draw on Glenn's exposition of legal traditions without having to accept all of its
jurisprudential underpinnings.
8
Glenn Legal Traditions of the World 67.
9
Glenn Legal Traditions of the World 62.
 6

First, the indigenous or customary tradition is characterised by a particular way of being

'handed down', namely by 'word of mouth' or orally. This stands in clear contrast to those
traditions that rely on writing for the recording and preservation of the law. This does not
mean that there have not been attempts to 'write up' customary laws. In fact, as you can see
in the section of this module on customary law as a source of South African law, reducing it
to writing is a well-known practice when customary communities are subjected to
colonisation. But writing is not part of the tradition.

Secondly, a further characteristic is its communal nature. It exists because it is generally

known and practised, as opposed to a written rule that could survive in relative obscurity for
centuries. Within the customary tradition, institutions such as a council of elders could
further play an important role in the application of customary norms, and dispute resolution
is generally achieved though informal mechanisms involving the community and is aimed at
reconciliation. This stands in contrast to formal courts of law aimed at adjudicating disputes
with reference to specific written laws.

Thirdly, it is difficult to generalise about the substance or content of customary laws, but it
should be apparent that these laws or norms bear the imprint of a very close connection to the
land on which customary communities depend for their existence. 10 Western notions of
exclusive ownership of land would generally be alien to such communities; individuals would
have only limited personal or private assets, and the fruits of the land would be used
communally.11 As far as family relationships are concerned, the position would also generally
be one of 'informality', in the sense that it would not be regulated by some central authority.
The absence of such central institutions also means that crimes would have to be dealt with
by the group or community, and may involve negotiation as to how it is to be addressed, as
opposed to the application of fixed (written) punishment.

This brings us to a general question, and that is whether the laws in customary traditions are
really 'law' in the technical sense, ascribed to it in some textbooks, as a 'body' or system of
rules that govern human conduct and are applied by the state. (Consider the definition of 'law'
provided to you at the beginning of this module). Since customary traditions generally do not
have such a central institution of the state, they would technically not be law. Indeed, in this
tradition it is generally not possible or indeed meaningful to distinguish between norms or
rules that are 'legal' in this sense, compared to those based on morality or religion. And linked
to this is the incompatibility, to some at least, of the notion of (individual) rights with the
customary tradition. Consider the following statement by Glenn:

'... [S]ince the present individual is submerged in the past and the wider community, there is
no individual power ... to obtain the object of the individual will. There are no rights. Even if

10
Glenn refers to the Chthonic (pronounced "k'thwanik") tradition, an expression derived from the Greek
word for the earth, to indicate people 'who live in or in close harmony with the earth' (Legal Traditions of
the World 62).
11
However, there were certainly also exceptions (see Glenn Legal Traditions of the World 71).
 7

rights are looked at as simple interests protected by law (a modern variant), then the law does
not protect purely individual interests. This is evident in the law of the family ... the law of
property, the law of crime. There are enormous obstacles to integrating a concept of rights in
to the chthonic [= customary] tradition. The tradition stands four-square against it, on all
fronts. You would have to work with the concept of rights to smuggle it into this intellectual
fortress. Law is linked to everything else; how can it turn around the individual'. 12

To the extent that this quote is an accurate portrayal of the customary tradition, it should be
quite clear that serious challenges could arise in modern legal systems where communities
may live according to the customary tradition, but within the boundaries of (state) law that
also accords rights to individuals. There is of course no necessary conflict. In fact, some
systems constitutionally protect customary 'laws'. As you have seen in the section of sources
of law in this module, customary law is a formally recognised source of South African law.
And some systems may even advocate the recognition of indigenous values in the legal
system as a whole. This incidentally was done in Beadica, when the Court referred to the
concept of ubuntu, which requires respect for the dignity or humanity of others, as a
constitutional value that could guide the determination of when public policy requires that
contracts should not be enforced.

However, when conflict does arise, its resolution may be very difficult. You briefly encounter
this when we deal with customary law as a source of law in this module. The details will
become very familiar to you in your study of modern customary law, as well as in other
modules, for example those dealing with family law and inheritance (succession). Again we
encounter the familiar themes of whether traditions could justify themselves or may be
measured by external standards.

22 The civil law tradition

Origins: One may be forgiven for being somewhat puzzled by the word 'civil' in the
expression 'civil law tradition', or the word 'civilian' in the expression 'civilian tradition'. But
these words actually tells us where the tradition comes from. The word 'civil' derives from the
Latin ius civile. This was the law that applied to cives or Roman citizens more than two
thousand years ago. So the word 'civil' tells us that we are dealing with a tradition that has its
origins in laws devised for citizens in ancient Roman law. From being applied to only a small
region in part of what nowadays is known as Italy, Roman law gradually expanded its
influence throughout Europe, where it became the dominant tradition. 13 This development

12
Glenn Legal Traditions of the World 75.
13
Nowadays, there are very few traces of the survival of indigenous European customary law. Glenn mentions
the example of the Saami in northern Scandinavia and Russia (Legal Traditions of the World 143). But many
immigrants in Europe adhere to customary and religious norms that originated outside its boundaries.
 8

partly happened by simply co-opting customary law by reducing it to writing or by absorbing

it into the civil law.14

The influence of the civil law tradition in due course extended far beyond Europe, especially
because of colonial expansion. As you have seen in the section of this module dealing with
South African legal history, this also explains why it became part of South African law. This
tradition also profoundly influenced many parts of the rest of Africa, as well as of Latin
America, and Eastern Europe. Still, its global reach had its limitations. In North America the
civilian tradition lost out to the common law tradition (which we will consider in the next
section) due to British colonial expansion, with the exception of some civil law traces in a
few American States, like Louisiana. And, finally, the civil law tradition has also made its
mark in Asia, but this influence was again more limited, and often the consequence of
voluntary reception, aimed at modernising the law, rather than of colonial force.

All of this is, of course, merely a very brief summary of the tradition's origins and
development. Later in this module you will be presented with a more detailed overview of the
main phases of the evolution of the civilian tradition and how it spread globally. In this
regard, special attention will be paid to how, in the form of Roman-Dutch law, this tradition
came to influence South African law from the seventeenth century onwards.

Core features: By now you may be pondering the following question. Why did Roman law,
which initially applied to a relatively small society (somewhat insignificant compared to great
civilizations of the time, such as those of Egypt in Africa, as well as China in the East) end up
having such an extraordinary global influence? One could ascribe it in part to good fortune,
inasmuch as civil law happened to follow the trail of territorial and colonial expansions by
various powers that adhered to it. However, it is doubtful whether its success could simply be
ascribed to this phenomenon; it certainly would not not explain why so many prominent
systems, especially in Asia, in the modern age nowadays still voluntarily draw on the civil
law tradition. There must be something more to it.

This brings us to a development in the civil law tradition that is of particular significance for
law globally, namely the practice that originated in ancient Roman law of jurists (the
successors of priests who earlier enjoyed this power, but then lost it) starting to write on and
interpret law in a particularly rigorous, learned manner. 15 A hallmark of this scholarship was
its extraordinary focus on rationality, on creating and developing concepts and structure. The
point is made as follows by Reinhard Zimmermann:

'Roman law differs significantly from any other historical system. ... [It] will always retain its
character as a model for the rational solution of legal conflicts. The problems raised, the
arguments advanced and the solutions found by the Roman lawyers have in many instances,
over the centuries, maintained both their topicality and their educational value. In other
words: by analysing a crip opinion given by Celsus or Ulpian, one can frequently learn more

14
Glenn Legal Traditions of the World 145.
15
Glenn Legal Traditions of the World 136 138.
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about legal ingenuity than by wading through the elaborate treatises of many modern law
professors'.16

It should not be surprising that ultimately many legal systems influenced by this 'rational'
tradition adopted codes. In essence, a code is form of legislation which is aimed at
comprehensively dealing with a whole area of law as opposed to 'ordinary' legislation, which
is more specific in its scope. A code generally replaces 'uncodified' earlier law, with a view to
regulating an area of law in a more accessible and principled manner. Its format is typically a
collection of quite abstractly-formulated general principles contained in numbered
paragraphs, which, in turn, are grouped together in 'books' and further sub-divisions. Codes
may be very ambitious in their scope and could, for example, cover the whole of private law,
commercial law or criminal law.

One hastens to add, however, that codification was not an invention of the civilian tradition.
Some of the earliest examples of codification existed more than 4 000 years ago in the
Middle East, while codes were also well-known in China long before they became popular in
Europe. Having codes is also not an essential feature of legal systems influenced by the
civilian tradition. An obvious example is South African law. Its civil law influences are
mostly found in modern case law and, more rarely, may be traced to the works of earlier civil
law jurists (whom we will encounter later).

We have seen that jurists play a prominent role in the civilian tradition. But we need to be a
bit more specific. A popular generalisation is that academic jurists (law professors) are held
in particularly high regard in this tradition, no doubt because of to their contribution to its
development, for example, through writing standard texts or commentaries on codes. The
judge or judicial officer, by contrast, is supposed only to apply the law, without having a
law-making function (a distrust that may be traced to judges being notoriously corrupt in
some earlier civil law systems). It is doubtful, though, whether this generalisation as to the
relative importance of the academic jurist is still true, 17 and in practice many decisions of the
courts effectively involve making new law. Further characteristics of judges include that they
form a professional class, as opposed to being drawn from the ranks of experienced
practitioners, and are actively involved in controlling the legal procedure, as opposed to
assuming a more passive role and leaving it to prosecutors and parties to present cases before
them.

As far as the content of the laws associated with the civil law tradition is concerned, you will
later on in the module be able to trace certain core concepts arising from this tradition that
are not only of fundamental significance for modern South African law, but for law globally.
These include: 1) basic notions of who can bear rights and have duties (the concept of the
'person'), 2) in respect of what 'things' persons could have such powers (namely things of
value, such as tangible property, including land, but also intangible property, such as debts

16
The Law of Obligations – Roman Foundations of the Civilian Tradition (1990) viii.
17
See Glenn Legal Traditions of the World 144.
 10

owed by others), and 3) how these rights could be enforced, or what 'actions' or 'procedures'
give effect to them.

These Roman distinctions, which can be traced to Gaius (a Roman jurist of the second
century AD), should actually not be unfamiliar to you, since they are to this day reflected in
the classification of the South African legal system, which you deal with elsewhere in this
module. Thus, they underlie the fundamental distinction between various branches of private
law, such as the laws of persons, property, succession, contract and civil wrongs causing
harm, or delict, (i.e., 1) and 2) above), as well as the distinction between these areas of
substantive law and procedural law (3) above). One hastens to add, though, as you will later
see, that in early civil law the boundaries between these categories were still undeveloped.
For example, if one person harmed another, it took some time before distinctions were drawn
between 'private' liability to the victim to compensate or balance out the harm, and 'public'
criminal law liability resulting in punishment.

A final aspect of the content of the civilian tradition concerns the topic of individual rights. It
will be recalled that the notion of such rights is essentially foreign to the indigenous tradition.
We have also seen that in early Roman law there was already a concern with various rights
that persons could have against each other. However, in the civil law tradition a more
expansive notion of individual rights, which Glenn calls the 'centrality of the person',
evolved.18 This development may at least in part be ascribed to religious notions that each
person is created in the image of a divine being, and hence should be valued as an individual.
This focus on the centrality of the person is not only reflected in the substantive law within
the civil law tradition. It also underlies the more recent support within this tradition for the
recognition of fundamental human rights in reaction to crises that originated within Europe
in the twentieth century. You will deal with these developments in more detail in the
introductory module on Constitutional law and statutory interpretation.

23 The common law tradition

Origins: Our next legal tradition also has a name that does not immediately suggest what it is
all about. To make matters worse, the expression 'common law' can bear a variety of
meanings depending on the context in which it is used.

First, in your study of the sources of South African law earlier in this module, you heard that
'common law' is a source of South African law. 'Common law', in this context, essentially
means law that is not contained in statute or legislation. More specifically, it designates that
part of our law which is based on seventeenth and eighteenth century Roman-Dutch law
(mostly contained in works of jurists), as well as English law from the nineteenth century
onwards (mostly contained in judgments). For more than a century, these sources been
applied and developed by our courts, so that our 'common law' nowadays is mostly revealed
18
See Glenn Legal Traditions of the World 147-151 and chapter 5 generally.
 11

in modern case law. The Roman-Dutch part, as you know from the previous section,
originated from the civilian or Roman-based tradition. So part of our common law is civil law
or civilian in nature. But what about the other, English part?

This brings us to the second meaning of common law. When it is used in the phrase the
'common law tradition', it refers specifically to the legal tradition that emerged in England
in the eleventh century. Like the civil law tradition, this tradition gradually supplanted or
absorbed indigenous laws and attained global influence largely through colonisation. In this
regard, you will recall in the previous section that its influence was strongly felt in North
America and parts of Africa. To this may be added Australia and Asia, with India being an
especially significant example of a jurisdiction that bears the imprint of the common law.

Given England's proximity to the Continent of Europe (one can even see France from the
Cliffs of Dover in England on a clear day), one may ask why England was the cradle of an
entire legal tradition of its own, and why it did not simply follow the civil law tradition. After
all, the birth of the common law tradition is dated to the Norman conquest of England, and
the Normans came from the Continent of Europe. But due to a variety of complex factors,
civil law influences did not dominate in England. A local 'common' law gradually developed,
characterised by the particularly prominent role played by the judiciary. This 'common' or
shared character of the common law tradition could especially be ascribed to the role judges
played in ensuring that the same law applied across the land, supplanting or assimilating
indigenous custom, where necessary. Nonetheless, this did not mean that the tradition
evolved in 'splendid isolation' from the civilian tradition. The civil law undoubtedly had some
influence on the development of the common law, 19 and both traditions can ultimately be
viewed as representatives and products of 'Western' culture.20

Core features: A popular ground of distinction between the civil law tradition and the
common law traditions concerns the particularly prominent role that precedent or recorded
judicial decisions plays as a source of law in the latter tradition. This is sometimes contrasted
with the wide-spread use of codes in the civil law tradition. However, as we have seen, this
generalisation may be somewhat misleading. Legislation also plays a very prominent role in
the common law tradition (especially in American law, where some states have codes of
criminal law or civil procedure), and judges undoubtedly make law in the civil law tradition.
Furthermore, academic commentary on the core doctrines of the common law has become
increasingly important. This means that the notion that the common law is solely judge-made
law is not accurate.

A somewhat more distinctive feature of the common law concerns the way disputes are
litigated. It was mentioned earlier that the civil law judge is more actively involved in
resolving disputes. This is often contrasted with the 'adversarial' (or 'adversary') approach
of the common law, whereby opposing parties 'fight it out' before a more passive judge. A

19
See Glenn Legal Traditions of the World 245, 270-271.
20
Zimmermann The Law of Obligations xi.
 12

further distinctive feature is the involvement of laypeople, to varying degrees, as jury

members in the judicial process of the common law tradition. Jury members could perform
functions such as finding facts, but also at times decided cases. In the civil law system, these
functions would be fulfilled by the judge, although we should not forget that the judge in
Roman times was actually a layperson.

On the level of the actual legal rules (or substantive law), the common law tradition
experienced some rather unusual developments. The first was that from early on English law
attached great importance to writs, which essentially were documents issued on royal order,
indicating to which remedy an aggrieved party may potentially be entitled. Armed with a
writ, the party then approached the courts for remedies, such as payment of damages or
recovery of the possession of property. The substantive law that the party had to rely on in
order to succeed was 'hidden' behind the writ. In the civil law tradition, however, it would be
easier from the outset to identify the principles on which to base a case.21

This system of writs proved to be so inflexible that a parallel court, known as the court of
Chancery, was created with the power to apply principles of equity to overcome the
limitations of the common law. This, for example, meant that, if a contract was breached, the
victim was not limited to the common-law remedy of damages, but could also claim that the
contract be performed. In 1873 these courts were merged, but to this day many common law
systems still recognise the law of equity as distinct body of law. However, this is not the
position in South African law, even though it has been influenced by the common law
tradition. As Chief Justice Innes stated in Kent v Transvaalsche Bank, 22

“[t]he Court has again and again had occasion to point out that it does not administer a system
of equity, as distinct from a system of law. Using the word equity in its broad sense, we are
always desirous to administer equity; but we can only do so in accordance with the principles
of the Roman-Dutch law. If we cannot do so in accordance with those principles, we cannot
do so at all.”

Equity is then supposed to be built into South African law; or, as it is sometimes said,
“Roman-Dutch law is itself inherently an equitable legal system”. 23 What this means is not
clear, but perhaps nowadays also not that significant, given that our courts are in any event
entitled to overcome limitations of our common law (in the first meaning above, of a source
of non-statutory law) to give effect to the demands of a horizontally-applicable Constitution.

24 Religious legal traditions

You would have noticed that none of the traditions that we considered thus far were based on
a specific religion. This is not to deny that the civil law tradition did through the centuries

21
See Glenn Legal Traditions of the World 241-243.
22
1907 TS 765, 774.
23
Bank of Lisbon and South Africa Ltd v De Ornelas 1988 3 SA 580 (A) 606.
 13

have a close connection with the Christian faith and especially the Roman Catholic Church.
For example, the civil law tradition and laws of the Roman Catholic Church, also known as
canon law, at times operated in tandem in supplanting indigenous laws in Europe. And
canon law also influenced the rules of the civilian tradition, for example the law of civil
procedure, and it was even applied directly in some matters, for example those relating to
marriage and wills. Some of the best civil law jurists were theologians, and the two sets of
law were even taught together. Incidentally, this link is reflected in the name of the degree
programme you are following: LLB stands for Legum Baccalaureus, which literally
translated means 'Bachelor's degree in laws', not 'in law'. The plural laws (reflected in the
double 'L') is used because historically the LLB is a degree in both the civil law and canon
law.24 However, ultimately there was no Christian legal tradition, requiring the law to be
'revealed' by religion. Although the Bible was the most important source of canon law, the
(Roman Catholic) Church professed to live according to Roman law, which was secular law,
distinguished from higher order religious norms, like the ten commandments or laws of
Moses. And in due course the division between state and church also became more
pronounced.

This position regarding the Christian faith differs from the role that religion played in some
regions or in regard to some peoples. This brings us to three religious legal traditions that
have not only been influential globally, but are also relevant in the South African context,
since they are all practiced by local religious communities.

Before we examine these traditions more closely, one general observation needs to be made.
At the beginning of the module, you were introduced to some basic views on the nature of
law, and how it differs from, for example religion. These distinctions may be relatively
easy to apply in the context of a secular state like South Africa, where 'secular' means that the
state is not connected with a particular religion. 25 However, through the history of humanity it
is common to find situations where distinctions between law and religion are meaningless,
since 'revealed' religious norms comprehensively regulate daily life, and there is no state law
with which to contrast it. So when we refer below to religious 'law', it must be appreciated
that we are not referring to 'law' in the technical sense that you first encountered it.

2 4 1 The Talmudic legal tradition

The Talmudic legal tradition is the first of our legal traditions that is based on a 'revelation'.
According to this tradition, the word of God (the same God as that of the Muslim and
Christian religion) was 'revealed' and then written down in the first five books of the Bible,

24
The Protestant faith at times had a rather more sceptical view of the lawyers of the civil law tradition, who
were even regarded as subversive and greedy. Thus, the reformer Martin Luther (1483-1546) supposedly
accused lawyers of only wanting to be rich (see Glenn Legal Traditions of the World 142), a charge which to
this day in at least some cases may not be unfounded.
25
Although section 15(3) of the Constitution does allow legislation recognising 'systems of personal and
family law under any tradition or adhered to by persons professing a particular religion'.
 14

known as the Torah or Pentateuch. The Torah was extended by the Mishnah, which in turn
was followed by recordings of opinions and commentaries, called the Talmud. This
happened around the sixth century AD, i.e. about same time as the Justinianic code of Roman
law was adopted. Over the centuries, a vast body of Jewish laws was created, a process in
which rabbis (spiritual leaders or teachers) were especially active. The term halakha is used
to describe the entire body of Jewish law that indicates how to behave, including ways of
religious observance, dietary laws or marriage.

Although the Jewish people dispersed across the world (a development known as the
diaspora), it continued adhering to these laws, albeit to varying degrees. Modern Israel,
which was established in the mid-twentieth century, identifies itself as a Jewish state, but this
does not mean that Jewish religious law is the state law. For example, rabbinic courts have
only limited influence, especially relating to aspects of family law. However, there is
conservative or Orthodox support for establishing Talmudic law as the law of the Jewish
State. Incidentally, the secular laws of Israel strongly reflect the influence of both the civil
law and common law traditions, a feature it shares with the mixed jurisdiction of South
Africa. Finally, within South Africa, adherents of the Jewish faith enjoy the freedom to live
according to religious law, but subject to Constitutional limitations.26

2 4 2 The Islamic legal tradition

According to the Muslim faith, God (as mentioned earlier, the same God as that of the Jewish
and Christian faiths) revealed his teaching to Muhammad (later the Prophet Muhammad), an
event dated to not long after the adoption of the Justinianic code. These teachings were
recorded in the Koran, which is the basis of the totality of Islamic law, the Shari'a. Again it
is apparent that we are dealing with revealed law and not the dictates of a secular law maker.
For Islamic law to work in the real world, it needed institutions to implement it, and in this
regard the qadi or judge has been particularly significant. Historically, the qadi enjoyed
broad discretionary powers, under a loose system of procedure, in which judgments are also
not recorded.27 This has elicited derogatory comments from Western jurists about vague and
unpredictable 'qadi justice',28 which was contrasted with the Western judge who adjudicates
according to pre-determined norms. However, this contrast is somewhat ironic, given the
broad discretionary powers that judges enjoyed in early English law to adjudicate according
to the vague standard of equity, and also if one takes into account the more recent movement
away from formal trials towards greater use of conciliation and mediation mechanisms. 29

26
Taylor v Kurtstag NO 2005 (1) SA 362 (W).
27
However, written opinions could be provided by muftis, learned in the law.
28
See IA Rabb, 'Against Kadijustiz: On the Negative Citation of Foreign Law' (2015) 48 Suffolk U. L. Rev.
343.
29
See Glenn Legal Traditions of the World 186.
 15

The Shari'a regulates significant aspects of human behaviour that in other traditions may
be governed by secular law (e.g. criminal conduct, private property, contract, including loans,
and the family), or by personal morality (e.g. etiquette, diet, and hygiene). 30 Islam has spread
across the world,31 and, in many modern states, the status of Shari'a differs considerably. It
may be a question of considerable difficulty to determine how far it could be changed by a
central state legislature, a notion quite foreign to a religious law traditionally enforced by the
community. An especially complex problem has been to determine the relationship between
Islamic law and universal human rights, which some consider to be an imposed Western
standard but others regard as mutually compatible, although the area of the rights of women
has been especially contested.32 In some countries, such as South Africa, Muslim minorities
operate within a secular state that recognises freedom of religion, subject to Constitutional
limitations. However, there are regions, especially in the Middle East and northern parts of
Africa, where Islamist movements have actively advocated for Shari'a to apply to Muslim
and non-Muslims alike.

2 4 3 The Hindu legal tradition

Another very old (if not the oldest) tradition to develop out of indigenous laws is the Hindu
legal tradition. Unlike Islamic and Talmudic law, it does not require members to accept
specific religious doctrines about one God; in fact, it does not even have a clearly defined
theological doctrine, with one fundamental revealed source, and more detailed layers of rules
on top of it. However, the Hindu legal tradition does have certain fundamental beliefs, for
example the migration of the soul after death. This migration is affected by what we do in
life or karma. What we do has consequences: good karma brings happiness and bad karma
suffering.

In the history of the Hindu legal tradition, a caste called the Brahmans played a particularly
significant role, since their members were originally the priests who taught the Veda, or
sacred knowledge, which was brought to India about 3500 years ago. This knowledge was
taught by way of sutras or basic devices used to make it easier to remember. Subsequently,
around 220 BC to 400 AD, sastras or textbooks were developed, written in poetic verse, and
interpreted by the Brahmans. Some of these sastras were legal textbooks or dharmasastras,
of which the greatest and earliest was by Manu ('the Wise One'), of around 100 BC. This
treatise has been said to resemble a 'western legal digest'. It does not only cover more
obviously 'religious' matters, such as the origins of sacred laws, rituals and sacrifices, but also
'legal' matters, such as how lawsuits are decided, property, contracts, defamation, various

30
See Glenn Legal Traditions of the World 198.
31
As Glenn states, it 'colonized much of the world with the same instruments as the west was later to use:
religious zeal, commercial vigour and military force'. In this regard the notion of jihad, at times compared to
the holy wars of the Christian Crusades, but sometimes merely being regarded as an obligation to spread the
faith, has been said to be behind these developments (229).
32
See generally Glenn Legal Traditions of the World 220-225.
 16

crimes, family law, and inheritance. 33 The time of the sastras is said to represent the 'golden
age' of Hindu law,34 and was followed by commentaries and digests till around 1700 AD.

Hindu law already started to decline in the eleventh century. This began when it was
supplanted by Islamic law in India. Thereafter, due to British colonisation in the nineteenth
century, both Islamic and Hindu law were in turn largely replaced by Anglo-Indian common
law, partly taking the form of codes. Ultimately, even the remaining parts of Hindu law in
areas such as marriage and inheritance only survive in altered form, in the Hindu Code. 35 But
even these provisions are controversial, partly because they are regarded as detracting from
the fundamental rights of women. So we return to the familiar theme of the conflict between
traditions and standards. Finally, it must be added that Hindu law is practised by adherents of
Hinduism in many parts of the world, such as Africa (including South Africa) and Western
states. More specifically it is nowadays practiced in the United Kingdom, which rather
ironically contributed to its decline.

2 5 East Asia and the Confucian legal tradition

We have seen earlier (at 2 1 above) that from the beginning of humankind, the customary or
indigenous legal tradition applied across the world, and that this tradition was supplanted, if
only in part, by various other traditions. These include the civil and common law traditions of
Western Europe, which in turn strongly established itself in North and South America as well
as Africa and parts of Asia, and religious traditions that emanated from the Middle East or
South Asia. But this still leaves one region, East Asia, to consider. Probably its most
important legal tradition is Confucianism, which originated around 2500 years ago from the
teachings of the Chinese philosopher Confucius.

Like the traditions of Western origin, the Confucian legal tradition is also not based on
'revealed' religious norms. But unlike Western law, and more like the Eastern religions of
Buddhism and Taoism,36 it is less concerned with rules revealed in formal structures and
sanctions. Confucianism is rather a tradition of engaging in habits or practices of dispute
resolution or persuasion.37 Confucius has been called the philosopher of the li, an informal
tradition based on persuasive norms, which typically concerns specific rites and ceremonial
practices, somewhat reminiscent of those regulated by Talmudic and Islamic law. This stands
in contrast to binding formal laws, or fa, a concept more aligned to the Western notion of
'law'.

33
Glenn Legal Traditions of the World 296.
34
Glenn Legal Traditions of the World 292-293.
35
Glenn Legal Traditions of the World 313.
36
The religions of Buddhism and Taoism could be regarded as less concerned with legal matters, and hence as
not characterised by their own legal traditions - see Glenn Legal Traditions of the World 330-333.
37
See Glenn Legal Traditions of the World 320.
 17

The Confucian tradition is clearly optimistic about human nature, and about the
willingness of people to be guided by persuasive norms and to seek harmony in social
relationships, as opposed to having to be compelled by rules. This emphasis on social
harmony may be of concern to those (especially from the West) who believe that it could
negatively impact on individual autonomy and rights. 38 However, that the law could at least
formally provide for such individual rights is apparent from the fact that China, like other
East Asian countries, has adopted codes that are strongly reliant on Western models, such as
the German civil code.

However, these laws do not only operate in China within a broader socialist or communist
ideological context,39 but also within a practical context where laws are not enforced by
courts with the rigour more characteristic of 'Western' codes. Furthermore, while China has
formally subscribed to various human rights conventions, and some have justified its support
for rights as being in line with the Confucian concern for the value of human life, others have
emphasised that the focus is more on rights that have a 'collective' rather than 'individual'
nature.40

3 Concluding remarks

The overview above shows us that the world is a remarkably diverse place in terms of the
rules or norms that have governed human action over the centuries. In fact, we have barely
scratched the surface, and have not even considered the internal diversity within traditions.
Thus, on the Continent of Africa, a variety of sub-traditions of different indigenous peoples
exist within the broad category of the indigenous legal traditions (see 2 1 above). In the
module on African Customary law, you will deal in much greater detail with the indigenous
customary laws applicable to the Southern African region. Furthermore, sub-traditions of
other traditions have in turn interacted with these indigenous African traditions in a variety of
ways. For example, civil law influences of French and Belgian origin are stronger in parts of
West Africa, whereas civil law of Dutch origin has been more influential in Southern Africa.
The latter influences will then in turn be considered in more detail elsewhere in the module.

But the story of traditions is not only one of diversity. For example, some traditions share
common features in terms of the way they engage in legal reasoning, such as through
carefully studying and comparing 'cases', or employing certain forms of logic, 41 a topic which
we will touch on later in the Legal Skills module. A number of traditions also share the
feature of the profound influence that 'private' or non-state actors such as jurists could have in
shaping their development. Furthermore, we have seen that many traditions face the common

38
See Glenn Legal Traditions of the World 336-337 353-355.
39
On the impact of socialism and communism on law in China, and more generally on the notion that there
could be a 'socialist legal tradition', see Glenn Legal Traditions of the World 347-343.
40
See Glenn 354-355.
41
See Glenn Legal Traditions of the World 364-365.
 18

challenge of retaining their independence, while being responsive to the demands of basic
standards in the form of fundamental rights.

Let us conclude this brief overview of the legal traditions of the world with one final
observation. Legal education generally tends to be narrow or 'insular', inasmuch as it focuses
on the history of the traditions directly related to a particular legal system. The overview
above has hopefully promoted a greater understanding and appreciation of the extraordinary
diversity of legal traditions globally. And hopefully this would in turn enable according these
traditions the respect and tolerance that they deserve.

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