2.3.1 The Dark Ages (AD 400-800)
At the end of the fourth century the Germans and later the Huns began to invade Rome and this saw the end of the “Roman peace”.16 As a result the Roman Empire split into a western and an eastern part, with Rome the capital of the Western Roman Empire and Byzantine (the present-day Istanbul in Turkey) the capital of the Eastern Roman Empire. During this time the centre of the Empire moved to Byzantine, where Roman law survived more successfully than it did in its western counterpart. This was mainly due to the influence of the rule of the last Roman emperor, Emperor Justinian, who ordered a codification of Roman law known as the Corpus Iuris Civilis, which consisted of the Institutiones, Digesta, Codex and Novellae.17
14 Hosten et al Introduction to South African Law and Legal Theory (1995) 279. 15 Esmein A History of Continental Criminal Procedure 28.
16 Hosten et al Introduction to South African Law and Legal Theory 280. 17 Kleyn & Viljoen Beginner's Guide for Law Students 4 ed (2010) 23-24.
The Western Roman Empire entered the so-called “Dark Middle Ages” in which Western Europe was perpetually subjected to hostile attacks. As a result Western Europe became fragmented into small societies and was eventually overrun by Germanic tribes. The law that applied at the time was that of the people known as Germans.18 Like Roman law, Germanic law made no distinction between private and public law. Germanic law was very primitive and unsophisticated and the judicial power vested in and was exercised by the people. An accusatorial system prevailed in its most rudimentary form and a mere accusation by a free man was sufficient grounds for suspicion against an accused. In essence criminal law presented nothing more than a regulated system of private vengeance, where the offender was pursued with arms by the victim or his or her family. This was known as “the feud”19 and the ancient maxim “mort mot ma mit morthe kela” (murder must be cooled with murder) prevailed. Disputes were settled by means of a dual or by retaliation.20 Only persons capable of exercising legal rights could defend themselves. Women and children were regarded as pars domus and were represented by the domus of the family. If a woman was raped the penalty was not claimed by herself but by her father or tutor.21 The reason for this was that neither women nor children could be challenged to single combat.22 Legal proof was strongly influenced by reliance on the supernatural and a belief in divine intervention rather than human proof. Gods could indicate the truth by signs and could protect the innocent. The outcome of such proofs was the “doom” or judgment of the court. For example, one practice that existed was “the ordeal by fire” in which an accused placed his or her hands in a fire; if he or she was burnt the accused was guilty.23 This primitive accusatorial system proved to be inadequate as it allowed many individuals to suffer and many
18 Burchell & Milton Principles of Criminal Law (1991) 8. The Germans were a group of Teutonic
and Scandinavian tribes with a common ethnic and linguistic origin who began to migrate to Western Europe during the fifth century. The Scandinavian tribes were known as Vikings. The Teutonic tribes included the Franks, Burgundians, Angles and Saxons. They mainly occupied Western Europe, the area known today as Germany, Holland and France, while the Goths, Vandals and Lombards settled in the east, in the area today known as Spain and Italy. The Anglo Saxons, Salic Franks and the Lombards allowed boys aged ten to give evidence in criminal proceedings but the Visigoths only regarded a boy of 20 years or older as possessing legal capacity. See Wessels The History of the Roman-Dutch Law (1908) 419.
19 Burchell in Burchell & Milton Principles of Criminal Law (2005) 8. 20 Wessels The History of the Roman-Dutch Law 703.
21 Wessels The History of the Roman-Dutch Law 425. 22 Wessels The History of the Roman-Dutch Law 178. 23 Dugard South African Criminal Law and Procedure 3.
crimes to go unpunished. It is not surprising that it gave way to the inquisitorial system of canon law.24
2.3.2 The Middle Ages (AD 500-1000)
Under the Frankish Empire25 the Middle Ages represents a serious effort by the kings and governments of the time to suppress private vengeance and to replace it with peace. One such method was the introduction of “the peace” in terms of which a resort to violence was prohibited at a certain time or place.26
During the late eleventh and early twelfth centuries, the law of Western Europe suddenly shed its tribal and informal character and was replaced by a well-defined legal system with professional courts and formal legislation. Trials still had the character of a popular assembly and were carried out exclusively by word of mouth. Criminal law itself was much influenced by the teachings of the Roman Catholic Church and the Corpus Iuris Canonici, in terms of which sin equated to personal wrongdoing and punishments were personal to the criminal. Punishment no longer resulted in retribution against the entire family, as was the case under Germanic law. The law was applied with great severity with punishments such as the severing of hands, branding, execution by breaking on the wheel and immolation at the stake being administered. The law became an instrument of tyranny and oppression in the hands of corrupt and capricious officials and was in dire need of reform and change. The means of change and reform were established by the rediscovery of Roman law.27
24 Dugard South African Criminal Law and Procedure 4.
25 The Franks were a group of German tribes who settled in what is now known as France.
Between the fourth and sixth centuries the Frankish kings became very powerful and united the Frankish kingdoms into an “empire” which included modern Germany, Austria, parts of France and Northern Italy. Burchell & Milton Principles of Criminal Law (1991) 10.
26 Burchell & Milton Principles of Criminal Law (1991) 10. 27 Burchell & Milton Principles of Criminal Law (1991) 11.
2.3.3 The reception of Roman law (AD 1500-1800)
The tenth century saw the rediscovery of copies of Justinian’s Corpus Juris Civilis in monasteries in Italy and these texts became the subject of study at the law school of Bologna in northern Italy. This renewed interest in the Corpus Juris Civilis was attributable in part to the increase in prosperity in Italy as a result of a vigorous trade revival at the time, as well as to a general economic revival in Europe. The Corpus
Juris Civilis was made up of thousands of texts and was so exhaustive that it was
even said that the original medieval sources of Roman law were “almost buried in a sea of ink”.28 The scholars at the law school of Bologna known as glossators set out to explain the vast amount of text or to resolve textual anomalies.29 In order to accomplish this task they used Roman law as embodied in the Corpus Juris Civilis as the basis on which to develop their doctrines.30
The successors to the glossators, the commentators or post-glossators, in contrast to the glossators, set out to develop a modern-day legal system that was accessible to everyone. Had it not been for this intervention by the glossators, Roman law might well have disappeared from the Western world. They were practical lawyers and wanted to apply the Corpus Juris Civilis to the needs of everyday legal practice. In order to accomplish this task, they endeavoured to harmonise the texts of Roman law with those of the statutory, customary and canon law of the time. Borrowing from Roman law, they adopted the idea that, before a punishment could be inflicted for a crime that had been committed, seven aspects had to be considered, namely: the cause, person, place, time, quality, quantity and consequences of the crime. These considerations played an important role in the mitigation or aggravation of the punishment for the crime or could even lead to the acquittal of the accused. The
28 Hostenet al Introduction to South African Law and Legal Theory 288-288.
29 They did so by writing notes (glosses) between the lines or in the margins of the text, hence
the name glossators.
idea of intent (animus) was also introduced. For the first time the concept was introduced that a person should not be punished for a crime if he or she did not intend to cause harm to the victim.31
The works of the commentators inspired further reform in the field of law and spread far and wide over Europe. In Germany the Carolina32 was enacted in 1532 and became the general foundation of criminal law until the nineteenth century. The code contained 219 articles which set out definitions of crime, penalties and matters of criminal procedure. The new criminal procedure in particular was of great significance. It replaced the old accusatorial procedure with what was called the “Inquisition prozess” or inquisitorial procedure. It differed from the old accusatorial procedure by replacing public and oral testimony with secrecy and writing. It also employed a system that relied upon the charge of a public officer rather than upon the complaint of a victim. It demanded proof of evidence in the form of an eyewitness or a confession from an accused. In the absence of the latter, an accused was subjected to torture until he confessed. The accused was brought to open court, where the charge was read out. No testimony was given by witnesses and no evidence was presented at the trial itself; an orator merely spoke for and against the accused. Sentence followed and was executed immediately. This brutal inquisitorial procedure with its oppressive system of punishment became the standard procedure in most European countries.33