Summary
Summary Foundations of Law 178 Term Two
- Course
- Institution
These notes are a combination of notes taken during lectures, the lecture material as well as the prescribed readings for the term.
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FOUNDATIONS OF LAW 178TERM TWO REVISION NOTES
SECTION A
Concept of A Legal Tradition Indigenous / Customary Tradition
Civil Law Tradition Common Law Tradition
Religious Legal Traditions East Asia & Confucian Tradition
INTRODUCTION: CONCEPT OF A LEGAL TRADITION
What is a tradition?
• A tradition is a belief, or way of doing things that has existed for a long time.
It comes from the word tradere which means to believe or hand down. It
sometimes has the connotation of something inherently good or self-
justifying.
o Can it be assessed? The implications of traditions are that they don’t
need to be explained rationally or be subject to the measure of an
external standard or set of values.
o This can be challenging in terms of traditions that, in our modern
society, are seen to undermine human rights such as dignity.
o Example: United Nations; Declaration of Rights of Indigenous People
2007, sought to recognise and promote the traditions of indigenous
people –but does not negate the issue of there no being a standard
against which traditions can be fully assessed.
• Role of tradition in our modern society: it influences politics, religion,
communication as well as identity.
! These notes are compilation of our
prescribed notes, the lecture What is a legal tradition?
material as well as the power point
slides.
• Defined: a set of deeply rooted, historically
Whenever this figure pops up,
there’s a little token of information
for you to keep in mind—mostly,
conditioned attitudes about the nature of law, about
but not always, what has been
mentioned by the lecturer!
the role of law in the society and the polity, about the
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, proper organisation and operation of the legal system and about the law is
or should be made, applied, studied and taught.
• The definition above seems a bit complex but it all boils down to the
attitudes which are forms of behaviours and beliefs which are applied to the
different aspects of the law.
• Legal traditions provide a foundation upon which we can fully understand a
specific legal system.
o A legal system can be defined as an operating set of legal institutions,
procedures and rules.
o National legal systems are classified into groups or families, but
membership of a group does not mean that all processes or
institutions are shared—membership implies that the system have
something in common.
Role of Legal Traditions
• Legal traditions help us put a legal system into cultural perspective; they
may also explain the evolution and development of a legal institution with
there being a sense of continuity between the past and future.
o Glenn’s Approach: traditions are simply information; they are not pure
entities but rather each develops and constantly interacts with other
traditions.
• Legal traditions provide a broader context through which we can
understand a legal system: a study of modern South African law could be
enriched through an understanding of the legal traditions that allowed for
the development of the legal system over time.
o These legal traditions are relevant to the history of the legal system.
Note
• There are three legal traditions of particular importance in the context of
South African law, namely:
The civil tradition and the common
o The civil law tradition law tradition are two sources of our
mixed legal system whereas the
o The common law tradition African customary tradition is a
neglected part of our legal heritage.
o The African customary tradition
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,INDIGENOUS / CUSTOMARY TRADITION
Origins
• Although it is not possible to identify a specific moment where the
indigenous or customary tradition was established, it can be said that it is
the oldest legal tradition.
• Its origins are roughly described as when early human society began
developing rules and norms that served to govern their behaviour.
! No indigenous people live strictly
Core Features according to customary tradition but
rather in context where it interacts
• No single African law, but there is a multitude with other traditions, with some
traditions coexisting (legal pluralism)
of systems of indigenous African law. There
are fundamental underlying principles which
are uniform, unity in diversity.
• Indigenous or customary tradition is characterised by a particular way of
being handed down, namely by word of mouth / orally.
• It is communal in nature which means that it exists because it generally
known and practiced, as opposed to a written rule that could survive in
relative obscurity for centuries.
o Institutions such as a council of elders could further play an important
role in the application of customary norms as well as dispute
resolution being instituted through informal mechanisms—with the
aim thereof being reconciliation.
• African customary laws were not book-law; there were no legal texts or
manuscripts, no statements of claim formulated on pieces of paper, no
summons or writ of executions, no conveyances in writing and no learned
commentaries by doctors of law.
• At the heart of African adjudication lies the notion of reconciliation with the
role of a court in an indigenous law context being to set right a wrong in
such a way as to restore harmony within the disturbed community.
• Although it is difficult to generalise about the substance or content of
customary laws, these laws bear the imprint of a very close connection to
the land on which customary communities depend on for their existence.
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, Customary Notions of Land v Western Notions of land
• Within customary notions, there is the sharing of rights and duties—
individuals would have limited possession of private assets and land, as well
as fruits thereof, would be used and shared communally.
o Western notions are those of exclusive ownership of land and private
assets, individuals use only what belongs to them to use.
• Within customary notions, family relationships are generally of an informal
nature given that they are not regulated by a central authority.
• Within customary notions, justice is local—wherever there is a community,
there is a process for the public settling of disputes. Community authority
figures were often responsible for dispensing justice.
Customary Traditions as Law
• It can be said that given customary traditions do not have a centralised
institution of the state, they cannot really be thought of as law.
• It thus makes it more difficult to distinguish between norms and legal rules
within the customary tradition itself.
• A link to this would be the incompatibility of the customary tradition with
individual rights.
o “Given that an individual is part of a wider community, they do not
possess any individual power. There are no rights. Even such simple
protected interests do not recognise nor protect individual interests.”
• Taking into consideration the quote above, there sometimes arises a great
challenge within modern legal systems where there are communities that
live according to their respective customary tradition but within state law
that recognises individual rights.
o Put simply: communities that follow customary traditions, which
generally don’t recognise individual rights, live within a country that
recognises individual rights.
o Some systems may advocate for the recognition of indigenous values
within the legal system.
• In South Africa: Section 211(3) of the Constitution: courts must apply
customary law when that law is applicable, subject to the Constitution and
any legislation dealing with customary law.
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