Understand the idea of a social contract and the difference between a Western and African approach to it, investigate why we have ‘laws’ and what the law is, understand the South African legitimacy crisis, understand the relationship between law and morality, how law as a normative system is di...
Learning/Unit outcomes:
o Understand the idea of a social contract and the difference between a Western and African approach to it
o Investigate why we have ‘laws’ and what the law is
o Understand the South African legitimacy crisis
o Understand the relationship between law and morality
o How law as a normative system is distinguishable from other normative systems in context of the change in
the South African legal order
o Investigate the link and meaning between law and justice
o Understand the fallacy of legal certainty and how language, changing values and judicial discretion influence
legal certainty
Law
- Made for and by the people
- Not cast in stone
- Public conscience
- Social contract between society and the state
1.1 Why Law
- Thomas Hobbes
o 17th century
o The world is a place of agony, trauma and violence
▪ Need someone to control this → State
o Humankind realised that they do not want to live in a lifestyle that includes destruction
▪ Therefore people entered into a social contract (agreement) where everyone gives up their
freedom to enable a peaceful co-existence
o Fear of their own destruction makes it possible for individuals to accept the authority of the ruler
- John Locke
o 17th century
o Not everybody is out to get each other
o Thought humans were governed by reason and wanted to live good but there are still threats and
violence
▪ Without fixed rules, conflict cannot be resolved
▪ Therefore people entered into a social contract where they accept themselves to the
authority of the state
• Giving up some of their freedom and in return there is
o Sewage control
o Roads
o Electricity
• Without this ^^ there is a breach of contract
o Therefore maybe do not have to pay taxes
- John Rawls
o 20th century
o Everyone is ignorant to their position in society
▪ Therefore they would agree to the terms of the social contract that are most just to all in
society
o If you are born into a place/ position – going to be very poor
▪ Do not know if you have wealth/ privileges
▪ What are some of the minimum requirements that the state should provide
• Drinking water
• Health and sanitation
• Shelter
• Basic education
• Security
1
, - Social contract
o Western justification for the law’s existence
▪ Theories oh Hobbes, Locke and Rawls
o Western understanding of the contract requires
▪ Separated individuals
• In the original position
▪ Imagined agreement
• Between those individuals
o African approach to explaining law’s existence
▪ Ubuntu
• I am because you are
▪ Belief
• Humans are born into ‘a world of ethical relations and obligations’
o Where we owe duties to other people and vice a versa
o Therefore individuals are important
▪ But cannot escape that they are born into a community
• never truly separated
• do not need to pretend as if we have entered an agreement
with the state
o just recognize to respect each other’s dignity
o born into ethical relations/ obligations
1.2 What is law?
- Characteristics
o Consists of a body of rules and principles facilitating and regulating human interaction
o Orders society and gives degree of certainty
o Rules often applied by institutions of state
▪ If necessary, enforced by employees of the state
• Police
• Traffic police
• Prison authorities
• Sheriff
▪ Most democratic legal systems
• Legislative authority makes laws (legislator)
• Judicial authority enforces law (judiciary)
▪ Enforcement (executive) means that a kind of sanction with be applied when one is not
compliant with a legal rule
• Sanction is a reaction of disapproval following non-compliance
o Can take form in some kind of
▪ punishment
• Fine
• Imprisonment
▪ Compensation
• In the case of breach of contract
o Content of law depends on the history of the specific country concerned
- South African rules and principles of law are found in
o Constitution
▪ 1996
▪ Given the force of law by the democratically elected Constitutional Assembly
• Tells us what the state’s powers are
▪ Contains Bill of Human Rights
▪ Section 2
• Supreme law of the Republic and any law or conduct inconsistent with it is invalid
o Supremacy clause
o Means that all other laws can be tested against the provisions of the
constitution
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