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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Tradition on trial: a critical analysis of the civil-law tradition in South African property law
Author:Van der Walt, A.J.ISNI
Year:1995
Periodical:South African Journal on Human Rights
Volume:11
Issue:2
Pages:169-206
Language:English
Geographic term:South Africa
Subjects:constitutions
1993
property rights
Abstract:South Africa's new legal order was born with the first democratic elections of 27 April 1994. The interim Constitution of 1993 came into operation on that day. Questions about the legitimacy of both the old and the new legal order must be asked within the framework of the new Constitution. In this paper South Africa's civil law tradition, particularly with regard to property law, is placed on trial in order to expose dangers which threaten the new legal order. The perceived strengths and values of the civil law tradition are scrutinized to uncover its shortcomings and undermine its certainties; the possible implications of the Constitution for the civil law tradition are analysed; the civil law tradition is formally put on trial in the court of critical jurisprudence; and the results of this trial are interpreted with reference to its implications for the new legal order. The paper concludes that what is generally seen as the greatest strength of the civil law tradition, namely its theoretical and methodological pretension to scientific neutrality and objectivity, presents a danger to the new legal order. The complacent kind of essentialist, conceptualist thinking so familiar to civil law might make transformation more difficult. Notes, ref.
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