LAW251:

FOUNDATIONS OF
BUSINESS LAW

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1. Introduction to the Botswana Legal System
1.1 Nature and functions of law

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1.1 Nature and functions law
• What is ‘law’?
• -it is difficult to find a commonly agreed upon definition of law.
Thus, it can be defined from different perspectives and for differing
purposes.

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• Simple definition: Law is a set of rules, which is used to control or
regulate human behaviour.
• What are rules?
• ‘Rules’ are those statements that guide us as to what we ought to
do and we ought not to do in particular circumstances.

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[… cont.]
• Thus, by guiding and regulating, rules help us conform to defined
and desirable or acceptable patterns of behaviour. Thus, laws or
also referred to as ‘legal rules’ are normative rules: these legal rules
shape human behaviours to a defined pattern.

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• There are, however, other role players in the normative system.
• These are: moral/ religious/ ethical rules and customary rules
Normative rules of a binding nature and require enforcement.

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[… Cont.]
• In this regard, we have mainly three approaches to law:
• (1) the natural law theory: universal, unchangeable, eternal and the
enforcer is the creator Himself. (Main proponent: St Thomas

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Aquinas)
• (2) the positive law theory: the law is a command from the
sovereign backed by sanctions for enforcement by the sovereign.
(Main proponent: John Austin)
• (3) the socialist law theory: state and law are supra-structure and a
means of exploitation which will wither away as exploitation of the
poor by the rich comes to an end.
• Can the two or three of them co-exist in a country?
• e.g., the Amina Lawal case
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1.2 Functions of law
• Law has the following functions:
• (1) Maintenance of social order
It is the primary function of law;

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It avoids private feuds and vengeance;
It provides rationalized and conclusive method for settling
disputes;
It preserves public order by protecting civil liberties and
human rights and by ensuring equality of opportunities
(e.g., non-discrimination on grounds of gender, ethnicity,
race, disability, etc).

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[… cont.]
• 2. Settlement of Disputes
• Disputes are inevitable parts of life. Disputes range from minor
family disputes, to labour disputes, to company to state, state

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to state disputes.
• In order to prevent and resolve such disputes, laws provide for
comprehensive framework of legal rules, and legal institutions
(courts).
• Through such established framework, law courts and other
tribunals provide for the final and authoritative means for
settling all disputes that arise in the society.