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    STUDIA IURISPRUDENTIA - Issue no. 4 / 2009  
         
  Article:   PRE-CONTACT AFRICAN JUDICIAL PROCEDURE AND THE LEGIS ACTIO PROCEDURE OF EARLY ROMAN ANTIQUITY: A COMPARATIVE ANALYSIS .

Authors:  GARDIOL J. VAN NIEKERK.
 
       
         
  Abstract:  The purpose of the law and the legal processes in pre-contact Africa and ancient Rome differed fundamentally. The purpose of the law in Africa was to attain communitarian justice and in Rome, law focused on the attainment of individual justice. The legal process in Africa was consensual, informal and non-specialised, and the outcome aimed at reconciliation and integration of the parties. Legal knowledge was open and the litigants were groups, not individuals. The Roman legal process, again, was confrontational, specialised, formal and ritualistic and the outcome may be described in terms of winning and losing. Nevertheless, certain similarities in the law and legal procedure may also be observed: a pre-eminence of the spoken word; the emphasis on the sensory world; the absence of legal representation; the inquisitorial nature of proceedings; and inductive legal reasoning with a concomitant casuistic approach to law.

Keywords: Pre-contact African legal procedure; legis actio procedure; purpose of the law; communitarian justice; informal consensual process; pre-eminence of individual; reconciliation and integration of parties; confrontation, specialised, formal, ritualistic legal procedure; winning and losing; sensory observation; struggle for law; inductive legal reasoning 

 
         
     
         
         
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