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ILW1501 - Introduction To Law Examination Summary notes
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ILW1036- SummarySTUDY UNIT 1 – What is “law”?
KEY QUESTIONS:
1. What is the “law”?
The law:
→ is a set of rules / norms that governs human behaviour / conduct.
→ should be obeyed by all of society & is binding
→ is enforced by the state / state organs &
→ when you do something wrong, you may be prosecuted & punished or be ordered to
compensate the other party you have injured
2. Identify events that have legal relevance, in other words, that has something to
do with the law?
Examples from the story→ examine legal norms to find out whether:
Employment → retrenchment→ lawful / not lawful
Payment of school fees → obligation
3. Understand the part played by law in daily life?
The law plays a very important role in daily life.
→ parenting → legal norms relevant to parenting→ schooling / medical care
→ age of children → infan → steals → not liable for crime
4. Divide the events that have legal relevance in divisions?
There are 2 methods used to divide South African law:
(1) 2 main divisions → Public law & Private law
(2) 2main divisions → Formal (procedural) law & Substantive (material) law
● Public law & Private law → deals with:
● → Public Law → relationship → state & individual
● → Private Law → relationship → individual & individual
● Formal / procedural law & Substantive / material law→ deals with:
● →Formal law → procedures that must be followed in legal proceedings
● → Substantive law → determines the content & meaning of different legal rules
5. Explain the difference between legal norms and other norms?
Some law→ norms (rules) → determine how one should interact and behave with another.
This is what separate laws from those that are not norms.
Therefore: A legal norm (law) binds all people.
Other norms / other laws → law of chess→ bind only those who are playing.
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, ILW1036- Summary
6. Explain the difference between formal justice and substantive justice?
Formal Justice:
Formal law → deals with the procedures that must be followed in legal proceedings.
→ certain basic requirements must be met,
→ when these basic requirements are met, always applied, in exactly the same way →
Formal Justice→ achieved
→ basic requirements:
● Explicit rules→ how people must be treated in specific cases
● Rules applied generally→ all people→ same circumstances
● Rules must be applied impartially→ judge may not apply rules unequally / no bias
decisions
Substantive Justice:
When there is formal justice that’s not really ‘real justice’, substantive justice is raised.
→ Concerned with → content of rule → not how rule applied
Substantive law → determines content & meaning of different legal rules
→ to determine if substantive justice done:
→ content of these rules itself must be looked at.
Often substantive law complies with the rules of formal law→ but may still be unjust
Therefore formal justice and not substantive justice are achieved.
Example → Apartheid years
→ laws specific, applied to all in specific group & impartially applied
→ cannot be said that it served justice→ content of rules→ unjust
7. Distinguish between the different normative systems?
Normative systems that governs human behaviour:
→ Religion / Individual Morality / Community Mores
Religion:
Each religion has → code (a set of rules) to live by
→ sanction (punishment) for those disobeying
There are many questions with regard to the relationship between religion and law. Although
there are many differences and similarities, they might overlap, and cannot often be divided
into separate categories.
There are different view points in this regard:
● Religion and law should be mutually exclusive
● Religion and law should have the same content.
These views may be criticised as follow:
● There are many similarities & differences
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, ILW1036- Summary
Differences:
Religion → 10 Commandments → not convey neighbour’s possessions
Law → this is not enforced
Religion → Adultery is a sin
Law → Adultery is not a crime
Similarities:
→ Western legal tradition is influenced by Christian thought (canon law)
→ Canon law is the basis of:
● Modern Matrimonial law
● Regulation of sexual relationships
● Contracts may be concluded by mere agreement
→ Content of law & religion same → offences in: Murder / Fraud / Theft / Perjury
→ Both religion & law → studied by interpreting authorotative text:
● Ritual formalities & fixed procedure → NB role
→ SA law favour Christian Religion:
● In criminal law Blasphemy → criminal offence & pertains to Christian God
● Christian holidays → Christmas / Good Friday
Individual morality (personal morality / ethics) → not enforced by law
→ They are personal, self- inflicted rules of each individual
→ Norms / standards of behaviour each person sets for himself
● not to drink too much / honesty / not to lye
→ can form part of religious convictions
● not to tell lies (both individual &religious norms)
→ May go hand in hand with certain legal rules
● honesty is violated when crimes of fraud are committed
→ Where a norm of individual morality coincide with a legal norm → only then will the law
step in / intervene
Community mores
→ Collective morals of a whole community / group in that community.
→ Different from religion & morality → not private matters of specific individual
→ Mores differ from each community→ ex. Unmarried couples living together
(some may accept & others not)
→ Origin of some community mores→ may be found in religious convictions (gay-forbidden)
→ Law & community mores may coincide→ possession & sale of harmful drugs
(disapproved by community & criminal offence)
→ Law & community mores may differ → law may not support these mores
(there may not be laws good enough to prevent distribution of child pornography)
→ community may feel that present censorship laws
are too strict & should be relaxed
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