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The judicial development of the Roman-Dutch doctrine of parental authority in South African law

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The Roman-Dutch doctrine of parental authority differed markedly from the parallel doctrine in English common law, particularly in relation to the balance of power between parents and generally in relation to illegitimate children. This paper traces the judicial development of the Roman-Dutch doctrine by the South African courts and focuses on two important turning points, at which the unnecessary adoption of principles of English law resulted in a departure from Roman-Dutch principles. The product of this judicial development was a doctrine of parental authority that differentiated sharply between legitimate and illegitimate children, and greatly impeded the capacity of judges to apply the 'best interests' principle in disputes concerning the latter.

Affiliations: 1: Senior lecturer in law; Oxford Brookes University, Department of Law, Headington Hill Hall, Oxford 0X3 OBP, England


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