Professional Documents
Culture Documents
UNIT 1
CHAPTER 1: THE LAW
LECTURE 1
WHAT IS THE LAW? [pg 1-3]
1.1- Why Law?
Presupposes society {a required condition for society to function}
Needed to allow for peaceful and productive interaction between people
Need for an authority figure to make rules for society to function
Obedience to such laws known as ‘rule of law’
Law Definition: (Marcus Cicero)
“One essential justice that cements society, and one law which establishes this
justice. This law is right to reason, which is the true rule of all commandments and
prohibitions. Whoever neglects this law, whether written or unwritten, is
necessarily unjust and wicked”
Law characteristics:
Brings certainty and order to society
Found in rules/regulations and commandments/prohibitions
Both written/unwritten
Justice obtained through law
Disobeying= unjust/disobedient
Social contract= Agreement between people of state about rules, laws and authority
that will govern them.
Accepting constitution= agree to rights being violated for 1) protection from state 2)
opportunity to live peaceful/prosperous life
3. John Rawl:
Objective: Justice and fairness
Natural State: “veil of ignorance”
Veil of ignorance: Original position in which the future is unknown, and
people start from the same place
Belief: Original position
Solution: individuals negotiate for core minimum conditions
Outcome: contract with state for core minimum conditions and give up
freedom for these conditions to live in peace and prosperity
Primary:
Source from which law originates
Authoritative
Binding {apply to all, must be obeyed}
Secondary:
Help understand primary sources
Persuasive
NOT binding
Common law:
Roman-Dutch law influenced by English law {inherited by colonial heritage}
Applies when specific matter is NOT GOVERNED BY LEGISLATION
Can be outdated/obsolete= abrogated by disuse
Custom:
Unwritten law
Fixed practices in which people live by
Binding= people regard it as the law {continued usage over period}
Already exist in legislation/common law= new legal principle unlikely
established
NB in modern trade usage
Requirements for a practice to be regarded as a law ( Van Breda v Jacobs}
Exist for long time
Observed generally
Reasonable
Certain and clear
Customary law:
Law of first nations of Africa= African law
Traditional customs/usages observed by indigenous people of South Africa
that forms part of their culture { labola ect.}
S.211(3) of the Constitution- court MUST apply customary law when
applicable to a) dispute b) in line with the Constitution
International law:
Law applies between different states only when agreed to
S.39(1)(b) of the Constitution- When interpreting the Bill of Rights,
international law must be considered
International law to be applicable in SA- 1) agree to become party to
international treaty
E.g- African Charter on Human and Peoples Rights
Foreign law:
Law of other jurisdictions
Domestic law of a country
S.39(1)(C) of the Constitution- foreign law may be considered when
interpreting the Bill of Rights
E.g- Namibian law exclusive to Namibia
The Constitution:
NOT a source of law
THE source of law in which all other sources of law must be interpreted
S.2 of the Constitution- the Constitution is the supreme law of the Republic, law or
conduct inconsistent with it is invalid
Legislation/Acts/Statutes:
Parliament adopt # acts yearly
Numbered chronologically when published in Government Gazette
Must include:
Short title: what act is about
Year act was passed
Number of the act in that year
Civil Union Act 16 of 2006
-Civil case
-Criminal case state is always Court in which case was heard/
put first in form of ‘S v Le Roux’ reported
Initial Surname Name of book in italics (Publisher place year of publication) specific pages
AJ van der Walt Property in the Margins (Hart Publishing Oxford 2009) 26-29
Bibliography:
Van der Walt AJ Property in the Margins (Hart Publishing Oxford 2009)
Initial Surname ‘Article in commas’ (year) volume Journal in italics page you used
Bibliography:
Initial Surname ‘Article in commas’ (year) volume Journal in italics page article starts on
4.1 Language:
Law and rules established through language
Legislation: conveyed through written down text
Common law/ customary law: conveyed through oral tradition
Case law: combination of both and through judge’s discretion
Law is cast in language
Can be difficult to convey language you aren’t proficient in
Language cannot convey true emotions
Interpretation of words and norms mean that judges have a discretion in applying
the law
Discretion gives way to subjective prejudices/ attitudes
Judicial subjectivity sees highest in the case of sentencing where no fixed sentence
Is prescribed
Approach of judicial officers take two categories:
1. Judicial activism
2. Judicial Deference
1. Judicial Activism:
Judicial activist judges: use creative discretion to interpret law and effect
social change
Involved in ‘making the law’ through interpretation
Complex/ambiguous law cases need purposive approach
Purposive approach: judge consider the purpose and specific context of the
law
2. Judicial Deference:
1. Deferential judges: restrict discretion by deferring to the
legislature/executive
2. Judiciary have the power to ‘speak’ the law and not make it
The constitution/Bill of Rights contain open-ended values that allow for discretion
When interpreting the Bill of Rights, the Constitution require judges to promote
certain values
Constitution regulates structure of state divided into three branches
1. Executive- enforces law
2. Legislature- creates the law
3. Judiciary- applies, interprets, develops law
Branches of gov operate independently through dividing power principle
Separation of power: limit the abuse of power between branches of gov.
Formal Justice:
Formal (procedural) justice: way in which the legal principles are applied
People in similar situations must be treated alike
Rules and procedures must apply to everyone in the same manner
Legal system aims for procedural fairness by:
Treating alike cases alike
Regarding accused person innocent until proven guilty
-bring accused before the court in a certain time frame and give both victim
and accused the opportunity to state their case without forcing the accused
into a confession
Natural Law:
Law must contain morality to be valid and just
Interested in the law that ought to be
Natural state: harmony and order
Moral principles exist regardless of human interaction that take precedence
Natural law: eternal laws of God and can be found through human reason
St Augustine: unjust law is no law at all
Nelson Mandela: universal consciousness (conflict between the conscience and
law), the cause was superior to the law
Bram Fischer: higher duty arises when laws are immoral, and this duty refuses to
recognise these immoral laws
Law conflict with human reason= immoral
Passive disobedience/ civil disobedience is used to rebel against immoral laws
Constitution: embodiment of natural law, establishes moral principles and a just
legal system
Judge: impose morality in every case
Goal: Justice and fairness in line with moral reason
Won’t be in position to overturn legal system
Contribute to change and Social justice
Legal positivism:
Law does not need a moral component to be regarded as valid
Morality is separate from positive law
Interested in law that is
Law=Valid if the applicable authoritative bodies have properly carried it out
(promulgated)
Law given the positive force of law can be regarded as law (law that is carried out
correctly in line with legislation and court decision)
Judge: mechanical function to apply the law ‘ius dicere non facere’ (speak the law
and not create it)
Goal: intention of legislature was carried out (legislature=valid law)