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FSAL Semester 1 Notes
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Law: body of rules of human conduct, prescribed, recognised & enforced by controlling authority throughsanctions. Rules applicable to certain group of pple. In democ, law made ‘by people, for people & obeyed by
people’. Law applies 2 groups - particular location = territory - territorial jurisdiction. Law already spatial construct –
applies in particular space 2 particular group of people = population. If everyone in territory subject to obey law -
members of pop equal before law. Equality before law = 1st principle of rule of law. Peace & order = law’s primary
aims - achieved if balances communities interest in freedom with interest in constraints of freedom.
7 Functions
Setting pre-existing, impartial rules, based on criteria that can be used to judge & settle conflicts: Should
be widely published, available & accessible. Pre-existing = can’t have retrospective application, can’t purport to
newly regulate conduct that already occurred. Impartial = should not benefit only1 part of pop - arbitrary laws not
good laws. Based on criteria that can be used to judge = made in way that can be used to judge behaviour
according to rules.
Protecting rights & freedoms of individual & groups: Constrain individual freedom & realises & protect
freedom. In constitutional democ, law grants & protects rights. Rights & freedoms extended by chpt 2 of Const -
BOR. Protection = will be sanction for breach of right. Key diff between constitutional democ & apartheid legal
system = in latter law used to violate rights & freedoms of majority of pop & under democ law protects majority &
minority’s r’s & f’s. Const supreme law. Rights in BOR don’t = absolute protection - limited for legitimate purpose.
Limitations can’t be arbitrary - must be in terms of law of general application.
Making change possible: capable of accommodating changes in society - new enactments, amendments,
repeals of legislation, declarations of invalidity. After apartheid law continuously made responsible for kind of
radical change.
Protecting society by serving as framework defining orderly conduct: defines status, functions & powers of
individuals, gov & social & administrative organs. Regulates relations between individuals & institutions. Holds
persons responsible for conduct / prohibits conduct. Regulates how conflicts between laws are resolved.
Providing mechanism to legitimise actions by state: Regulates state conduct, defines functions & powers of
gov organs & its officials. Dictates procedures organs & officials must follow exercising powers, holds organs &
officials accountable.
Protecting & preserving legal system: Protects itself. Const can be amended only by 2/3rds majority. Once legal
system established - important that system can use law to protect itself from internal & external threats.
Providing institutions & procedures to settle disputes: Puts in place mechanisms, institutions, officials &
procedures to determine how conflict should be settled. Judiciary 3rd arm of gov = primarily institution that resolves
legal disputes. Also ADR.
5 ways Legal System Functions
Law-making: Law-making organs = legislative organs. Parliament primary law-making authority in SA - can pass,
amend & repeal laws. Const = supreme law, binds Parliament & sets out how law should be made. Have provincial
legislatures & municipal councils that make law. Schedules 4&5 of Const regulate competencies of Parliament,
provincial legislatures & municipal councils about which areas can make law for.
Interpretation & adjudication: LP’s responsible for interpreting law. S 165 of Const grants judicial authority to
courts. Courts independent - subject only to Const & law consistent with Const - have law-making powers - derives
from interpretation. Differentiate law-making powers of courts & Parliament & provincial gov etc. = courts don’t
make law from scratch, make by interpreting law.
Law enforcement: SAPS. Directorate of Priority Crime Investigations DPIC (Hawks) & SANDF. When
enforcement agencies discover breach of law - can bring person before court.
,Legal administration: Const determines how gov & gov administration operate. All public officials subject to law -
administrative law - admin of justice by State’s organs & officials that run national, provincial & local authorities.
Legal advice & representation: Attorneys & advocates = specialists in providing legal advice, represent clients in
court.
Factors determining law’s effectiveness: Public awareness, understanding & acceptance of law ; Enforcement
of law ; Clarity drafting law ; Consistency (no contradicting laws & proportional sanctions) ; Changes & stability
Colonialism & Legal Culture - Channock
Hist of SA law & LC should b seen in context of expansion of Euro law & making of colonial LC as its development
not comprehensible outside context. Period = huge transfers of leg institutions & ways of thinking - not same as
transplants as each colony in Brit empire used, adapted & developed Brit endowment differently & developed in
continuing conscious relation with Brit & with high degree of awareness of each other. SA law & LC developed
within racist state = not unique, part of Brit empire = world-wide system of racist rule. Endorsing segregation by
separate but equal doctrine = SA 4 decades behind US SC. Empire, segregation & Nazism = fundamental parts of
world SA’s race-based law developed. State most active making racially divided society, most state law concerned
forcing races apart, rather than with legal system as whole reflecting naturally racist society. In formation of SA
state from 1910, influence of Eng legal practices big. Organisation of courts & procedures, self-conception of
judiciary & profession, lang of statute & judgment, mimicked Engs & empires. Formalist façade of notional equality
before law led in Africa & Asia to binary systems which supress majority pop to subordinate systems that provided
little guarantee of legal rights. Development of SA law = story doesn’t start in Rom & then Renaissance Euro,
rather = place & circumstances Rom & Euro’s sources re-read. SA com law as RDL was com law created on
initially flimsy textual base in politically fraught colonial time & place. All white knowledge derived from outside &
African ideasw deemed non-existent or uncivilised. Many lawyers & judges educated in Euro & Brit. Achievement
of RDL involved complete colonisation of African time & place, SA had no com law in historical sense. Creation of
new com law depended on translation & retrieval of Rom & Renaissance legal texts - treated as though embodied
inherent rationality of law & so rationality located in Europe, not Africa - white law contained ‘rationality' not just
commands of advantaged. Dialogue & dispute between Europe & Africa excluded, Africans incapable of creating
future, tied to traditional pasts, inherited structures resist or submit to new but can’t produce it. Euro’s past became
Africa’s future & Africa’s present frozen in imagined past = imagination of white lawyers who created system of
customary law alongside RDL. 2 systems made dual cryptic codes, reinforcing foundations of racist law. 1927
union gov = Native Administration Act = separate courts for B&W, applied separate laws. W courts applied RD com
law & B courts applied ACL created by racist state. Not just 2 separate systems of com law, 2 interrelated & grew in
intimate relationship. Irony = few members of pop saw in com or ACL source of their rights / oppression - was seen
as the racialised state. Today’s TC along with land law reform = confronting vanished gen thought to be left behind
in past - gen asking critical questions, speaking as if from future, demanding resolution of their questions.
Developing new LC = doesn't simply reflect social practices - also made up of acts of imagination. Concept of LC
allows recognition of place of fantasy & imagination - appreciate in new ways how strange, extraordinary, many
things said & done were. 1 major fantasy of lawyers = world of rights & justice. Without fantasy, can’t creatively
imagine future.
The Constitution of the Republic of South Africa, 1996
Important product of legal fantasy from global South in 20 cent, imagined by ppl like Mandela. Freedom Charter,
adopted 1955 by ANC & allies, imagined future SA - pple shall govern. FC lay basis for Const ±40 yrs later. Const
forms foundation of SA legal system. Preamble = how Const adopted as supreme law to lay foundations for democ
& open society. Integral part of democ. Pple govern through elected representatives & freedoms & constraints
Const represents. Preamble shows drafters aims - heal divisions of past, lay foundations of democ, improve quality
of life of all citizens, build united & democ SA. Const sets itself task of dismantling centuries of racism, colonialism,
imperialism & apartheid. On lvl of state formation, Const changes location of sovereignty - transfers from
Parliament to interlinkage of Parliament, Executive & Judiciary (3 branches of gov). Const supreme law - law &
conduct inconsistent = invalid. Contains most important rules for gov & society, contained prescriptive formula
serves as basis for harmonisation, protection & regulation of interests in society. Prescriptive formula based on
values of Const - dignity, equality, freedom, non-racialism, gender equality. Const = statement of law & of morality
,for p-apartheid. Moral code & law = everyone bound by morals of Const. Power can be abused & Const guards
abuse of power. State = most prominent concentrations of power so Const regulates state powers by dividing into
3 branches of gov: legislature, judiciary & executive = the separation of powers. ’96 Const not 1st const. Apartheid
= 2 consts. 1963 Const & 1983 Tricameral Const - represented only interests of minority & parliamentary
sovereignty prevailed - Consts not supreme law. 1st Const as supreme law = 1993 Interim Const - into effect 27
Apr 1994, day of 1st democ elections. Const recognised interests of all, outlawed unfair discrimination - prescribed
how Fin Const to be drafted. Most important = statement of 34 principles against which fin Const measured by CC.
Process = certification. Citation has no # like other statutes. Const only be amended by special majorities (+50%)
in Parliament - known as entrenchment. S 2 Const = supremacy clause. BOR Chpt 2 = binds gov, natural & juristic
ppl - Const unique as traditionally const rights only binded State - apply vertically. Const binds natural & juristic
persons to BOR = both vertical & horizontal application. S 7(1): BOR chpt 2 is cornerstone of democ in SA. Can be
no democ without protections & freedoms contained in BOR. S 7(2) places obligation on gov to respect, protect,
promote & fulfil BOR. Many rights in BOR apply to all, also refers to no one eg. s 27(3) = no one refused
emergency med treatment. Some rights only for citizens eg. polit rights. BOR designates specific rights bearers eg.
employee. Juristic person = association of ppl with separate legal personality. S 8(4) BOR = juristic person can
claim rights in BOR if nature of right & nature of entity permits. Eg. can’t claim right to life, but can claim right to
freedom of expression. Direct horizontal application of BOR = natural / juristic person relies directly on a right in
BOR to claim protection against another person. Indirect horizontal application = natural or juristic person relies on
another part of law to claim protection against another person, but at same time claim their right in BOR by arguing
that law must be interpreted to give effect to right in BOR. s 39(2) of BOR obliges courts 2 promote values &
objectives of BOR when interpreting other law. How const regulates state = 2 important aspects of Const relevant:
principle of co-operative gov & separation of powers. Co-operative gov = all spheres of gov must work together 2
preserve peace & unity& secure well-being of pop, relationship between spheres of gov should be inter-related &
mutual, shouldn’t intrude upon 1 another’s geog, functional or institutional integrity. 1 branch relies upon other to
fulfil its functions & branches effectively check one another in terms of fulfilling functions = principle of checks and
balances. 1 branch checks other’s exercise of power & makes sure power between arms balanced.
Jurisprudence: Latin origin Juris prudential - study/knowledge/science of law = philosophy of law / legal theory.
Diff schools of thought = seek to analyse, explain, classify & criticise areas of law, focusing on what ideal law is,
trying to reveal historical, moral & cultural basis of legal concepts & contrast law with other fields of knowledge eg.
economics, religion. Diff schools = diff position on legal problem - can be combined within work of 1 lawyer.
Jurisprudence & schools of thought inform how cases decided.
Legal system & theories: Foundation of apartheid legal system - undemoc parliamentary sovereignty. Coloni &
aparth made law by passing legislation - Parliament could make any laws as long as followed correct procedure for
enactment. Aparth leg system accepted laws made through parl sovereignty - enforced by courts & executive.
Legislation enabled HRV. Attorney’s general (attorneys employed by state) could refuse bail & police officers could
detain ppl thought to be threat to public. Courts had no substantive jurisdiction over content of legislation - judges
justificatied decisions in positivism. N. law approach used during aparth to argue blck pop had H right to polit
participation. Interim & Final Consts wrote H rights standard into positive law of p-apartheid legal syst - codified
into SA law. Final Const’s founding provision stipulates SA is democ state founded on advancement of H rights &
freedoms. N. law vs Positivism. 2 main ideologies of law. Ideologies = systems of thought that explain entire course
of hist with reference to 1 idea.
Positivism: explains course of legal hist referencing idea = laws only laws when declared so. Laws = commands
made by humans & don’t have to be moral. Judges shouldn’t allow morality to affect decisions - must neutrally
apply law to facts.
Early positivists
Bentham: law should be evaluated according to usefulness, law is good / bad depending if increases general happiness. Its a command
expressing will of sovereign. Law commanding evil still law.
Austin: positive law is command backed up by sanction.
Kelsen: legal syst made up of hierarchy of norms, rather than any kind of morality. Grundnorm = highest norm, source of all other norms &
underlies legal system. Grundnorm enforceable through coercion or force - logical presumption of society’s awareness, helps give validity to
Const & all norms in system, enables lawyers to interpret all valid legal norms.
, 20th century positivism - Hart: though law influenced by morals & certain rules in accordance with morals - for law to be valid doesn’t have
to comply with ethical standards. Laws morally wrong still laws. Remedy against laws = disobedience = soft positivism. Legal system must
comply with certain minimum standards, survival of citizens, protection of prop & equality before law & impartiality in admin of justice - legal
syst can comply with min standards & still be morally offensive. Book = The Concept of Law. Following basic principles underlie min content
of N. law: basic reason for legal rules = protection of life & body. Differences between ppl can’t justify domination - must be approximate
equality, tolerance & compromise. Selfishness must be limited by law - necessities of life scarce. Must provide min protection of prop. ppl in
who want benefits of ordered society but don’t want to subject themselves to obligations = sanctions to force obedience.
Natural Law: Exists higher values which all law must be measured for validity. Natural = universal. Often religious
origin. Modern n. law based on universal humanity. Explains course of legal hist with reference to emergence of H
rights. Authority of legal standards must be supported by moral principles. Values = objective & accessible through
reason. N law treats law as process - not object of study.
Fuller: law = human project & moral goal to achieve coexistence & cooperation. Pos falsely assumes law = matter of moral indifference.
Law, is min requirement for living good life. Criticised pos simplistic view of authority - 1 party giving orders & other obeying - law depends on
reciprocity of duties of citizens & lawmakers - law has inner morality & immoral laws breach this. King Rex fable shows breaching laws inner
morality: Decided issue only on facts, didn’t treat like cases alike, didn’t publicise laws, abused retroactive legislation, laws confusing,
contradictory laws, made impossible laws, changed law so often -no one certain what it was, enforced law diff from what law said.
Dworkin: rejects separation of law & morality = necessary determining content of law - legal system consists of rules, principles & policies.
Principle = standard observed for of justice. Policy = standard sets out goal, generally improvement in econ, polit or soc of community. As
moral principles & policies exist within law, judges & legislators don’t have strong discretion as still decide case from within legal system by
reference to principles & policies forming part of law. Decisions constrained by legal materials & provide best fit argument. Law seamless
web & judges form community of interpreters engaged in interpretive / argumentative practice of law. Favours interpretive approach - law as
integrity - judges consider purpose behind law to make decisions based on integrity & consistency in principles in law. Interpretation = bring
own convictions to relevant data - legal theory always politically committed & no value-free interpretation of positivism. Ideal interpreter =
Judge Hercules: Infinite time, all relevant legal materials, interprets case before him in way that best fits these materials, holistic view of law
& constructs polit theory that best justifies entire body of law. Metaphor of chain novel as adjudication = practice of writing chain novel &
judge assumes role as co-authors - adding chpt, must ensure reads as whole coherently & consistently with what has been written before.
Integrity demands rationalising principle of decision be part of whole of pattern. Apartheid law was either arbitrary exercises of power or
based on view blck people not equals of w ppl. Laws violated moral threshold of equal concern = precondition for political legitimacy of legal
system, without it gov = tyranny. Const codified principle of equal concern in s 9(1) - everyone equal before law & has right to equal
protection & benefit of law. Const’s founding value = achievement of equality. Carmichele v Minister of Safety and Security - confirmed n. law
foundation of new legal order as held: Const contains objective, normative value system = legal system consist of rules but also principles,
values & policies.
Jurisprudential perspectives
Marxism: Law is an ideology legitimised by class power, always law of superior econ class - bourgeoisie. Law
can’t be separated from political struggles of weak v strong - it is a form of politics. Law gives effect to prevailing
econ circumstances & relations in society. System based on capitalism = laws will support & reflect capitalism.
Industrial capitalism = 1 class owns means of production & exploits proletariat forced to sell. Law is superstructural
- form determined by econ base of society & its function = sustain & regulate capitalism in econ base. Econ base in
capitalism = exploitation of working class. Form of law = means of systematically reproducing interests of particular
social class repressing underlying econ inequalities.
Legal formalism: Law should limit judges discretion when interpreting legal texts. Judges can & must disregard
own morality. Adjudication = uncontroversial application of accepted principles to facts to derive outcome in
manner of deductive syllogism (Rule + Facts = Conclusion). No normative decision-making as it violates principle
of separation of powers.
Feminist legal theory: Law subordinated women to men = patriarchal. Men hold dominant positions = law, even if
appears neutral = biased in favour of men. Need legal reform to change subordination & elevate status of women.
Const influenced - outlaws gen discrimination.
Legal realism: Realistic look how judges decide cases - based on facts before them & not because legal rules
require particular results. Fact-responsive not rule-responsive. Decision = result of psycho & social factors that
influences relationship to facts.
Critical legal studies: Marxist theories + legal realism. Adds structuralist theory to thought - argues human is
subject born into structures varying between cultures / languages eg. structure of language & econ structure of
state. Law always a form of politics - such politics can’t be overcome & legal decisions result of politics of judges &
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