CHAPTER 1

THE CONCEPT OF LAW

 WHAT IS LAW?

• SCIENTIFIC LAW: Statements about what people observe repeatedly in nature

• They describe what we are able to perceive in the physical universe
• Eg. Gravity exists even if we do no want it to!
• Examples: laws of physics, chemistry, economics, and even psychology
• PRACTICAL LAWS: These are rules of conduct – set out courses of action for rational human beings
• Tell us how thinking people should behave in particular situations – set out standards to which human
beings ought to aspire
• Examples: rules of law, ethics, honour, and even sport rules
• LEGAL LAW is defined as the body of rules governing human conduct, recognised as binding by people
and enforced by the State
• LAW is influenced by natural, social and moral codes of conduct
 LAW NATURAL, SOCIAL AND MORAL
CODES

Where does it come from? Made by a formal process and Naturally inherent in people and
enforced by the State originate from the community.
Accepted by the public on an informal
basis

Compulsory or voluntary Must be obeyed by all Individuals are free to accept or reject

Purpose To facilitate order and justice To uplift all humankind and to advance
civilization

Formalities Controls human conduct by formal Guides human conduct by setting

rules and procedures, and processes standards, and functions through the
such as courts consciences of individuals
 LEGAL SUBJECTS AND RIGHTS
• LEGAL SUBJECT = Any person, or entity, who can hold rights and duties in terms of the law
• RIGHT = your ability to claim or protect something in which you have a legal interes from another
• LEGAL SUBJECT MAY HAVE LEGAL RIGHTS TO:

• Corporal things (movables and immovables)

• Incorporeal things (eg shares in a company)

• Intellectual property (creation of the mind – eg. patents copyright and trademarks)
 REAL RIGHT
What is it? A real right is a right that you hold in a
thing, eg. you own a car. You can
protect a real right against anyone in
the whole world who tries to interfere
or cause you loss, eg. anyone at all
who steals your car or damages it
How they are created The most important real rights are
those of ownership and possession.
Real rights are generally created by
agreement (i.e. contract)
Method of transfer Real rights may be transferred from a
person to another by delivery in the
case of a movable (eg car) or by
registration in case of an immovable
(eg. land, house)
PERSONAL RIGHT
A personal right is a rights you hold
against a specific person, eg. someone
who owes you a debt. You can protect
a personal right against that legal
subject only, eg. you can only take
legal action for the money against the
specific person who owes the debt to
you
Personal rights may be created by
agreement (i.e. contract); one person
getting an unfair benefit at the expense
of someone else (i.e. unjustified
enrichment), or by one person to
another that causes injury to their
body or damage to their property (i.e.
delict)
Personal rights may be contractually
transferred from one person to another
by means of an agreement called
‘cession’
 THE CONCEPT OF LEGAL PERSONALITY

• TWO TYPES OF LEGAL SUBJECTS EXIST IN SOUTH AFRICAN LAW:

• NATURAL PERSONS: All human beings have the capacity to bear rights and duties from the time they
are born. The legal personality of a human being ends automatically on death
• JURISTIC PERSONS: These are non-living associations which are given the capacity for rights and
duties by law, for example corporations
 2 PURPOSES OF LAW
• ORDER
• Main purpose is to maintain order and peace in the community
• Law limits what people may do
• By placing rules on people, the law makes it possible for people to live together peacefully, even if they
have competing interests
• JUSTICE
• Refers to the general sense of people as to what is fair and right
• The closer a legal system comes to being just, the more willingly it will be obeyed by people
• Law must be seen to be just and fair
• An unjust system of law can only be enforced by strong punishment, and the people ultimately will
rebel against that
 THE POSTULATES OF JUSTICE
(REQUIREMENTS FOR LAW TO BE JUST)

• REASONABLENESS: Legal rules must be reasonable to achieve justice.

• Random, senseless, or silly rules bring the legal system into disrepute
• GENERALITY: Legal rules must apply equally and consistently to all legal subjects
• EQUALITY: Legal rules must apply equally in similar circumstances.
• However, this does not mean absolute equality for everyone – eg. it would not be rational to treat adults in the
sam e way as minors, or the insane in the same way as sane people
• But different rules must not be random, unpredictable, or unreasonable – eg. Racial discrimination does not
treat people equally in similar circumstances
• CERTAINTY: The same result must be achieved if the circumstances are similar
• The law should generally be predictable so that people can anticipate the legal consequences of their conduct
 THE POSTULATES OF JUSTICE
(REQUIREMENTS FOR LAW TO BE JUST)

• DUE PROCESS: An independent, unbiased judiciary must apply the law

• Judges must apply justice after giving serious thought to the facts and the law, and their decisions must be
made in the interests of the law and of justice, and not to favour one side or the other
• Courts should be open to the public, and the loser of a court case should be allowed to take a decision on
appeal or review
• Courts must be impartial and judges should not be influenced by outsiders, such as a political group or
the government
• A judge should not hear a matter in which he or she has a personal interest
• The legal profession a must be competent and independent; able to represent unpopular causes without
fearing the consequences