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Summary introduction to law summarized notes
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What is law ?People need rules to interact with one another, and to maintain
order in society, to determine what is acceptable and what is not.
The law prescribes what is acceptable and what is not, and what type
of behavior should be rewarded or be punished, it also holds people
accountable for the harm they have done.
What would society without law look like?
Thomas Hobbes called this a state of nature, in such a state, ruled by
pure instinct and freedom, chaos reigned until eventually small
groups of people realized that if they did not order their society, they
would soon become extinct.
Social contract in which the members of a community authorized
their leaders to organize a group to ensure its survival. Law is usually
defined as the body of rules covering human conduct, recognizing as
binding by people and enforced by public authorities.
The functions of law in society.
One of the foremost functions of law is to ensure order on the
relationships and interactions between people and between people
and things in society. Law maintains order and justice in the
community, making it possible for persons with different and
competing interest to live alongside each other.
The law not only prescribes what people cannot do; it also tells them
what they can do and what they must do, EG a person cannot steal
from a employer, but can rent a house and must pay tax. The law also
guarantees certain freedoms, permits free enterprise, and provides a
means to settle disputes peacefully.
, Body of rules and principles facilitating human interaction
Orders society
Gives certainty
Applied & interpreted by institutions of state (parliament makes law, police
enforce the law, courts apply and interpret the law).
There are sanctions where the law is broken (punishments) – this can be
civil or criminal (Protection of Individual rights and freedoms)
Content of the law depends on its history and development (SA law is
different to other countries because we our legal history is centered on
Roman-Dutch Law; English Law influencing our company laws and business
laws)
NB sources of the Law.
-The constitution,1996, is the supreme law
-Legislation
-Case law
-Common law
-Customary law
-International law
,Law and other social norms (morality)
Law has existed along various systems of religion and morality, which
like law are normative to the extent that they provide rules to guide
human behavior.
Religion; is associated with belief in powers superior to people,
which are thought to control the course of nature and human life
itself, and which may dictate rules of conduct for humans.
Morality; is a system of morals- these are individual or group beliefs
about what is right and what is wrong.
There is a connection between morality and religions standards of
right and wrong are dictated or inspired by religion. Connection
between law and morality since the law is also concerned with
upholding standards. Connection between law and religion law is
influenced by religious rules, practices, and beliefs.
Standards of law and morality are not the same, in apartheid a social
system internationally regarded as morally evil was upheld and
enforced by law for more than 40 years.
Community mores (boni mores)
Collective morals, fashion, marriage. Going against these morals
means disapproval by the community. What is accepted in one
community may not be accepted in another. Legal paternalism-
protect people against causing harm to themselves. EG, not allowing
the sale of alcohol and cigarettes to children.
Justice
Distributive justice- equal distribution amongst equals.
Corrective justice- restoring inequalities.
, Does the law always focus on justice?
Procedural law- yes (innocent until proven guilty, like cases treated
alike)
substantive law – (written law usually as contained in common law
and legislation)
legal positivism
what the law is and not what the law is ought to be, morality and the
law are separate. Law is set down in statue, books, and court
decisions. Judges apply the law they do not create the law.
Natural law
Law is more moral, found in human nature, human reason, laws of
god. EG a law that allows slavery would mean the law is unjust and
thus doesn’t exist at all. In SA, the law would have to be against the
constitution to be regarded as unjust.
The law and certainty
What will affect certainty?
Language, changing values, judicial discretion.
A history of south African law.
Legislation; written legal rules promulgated by the recognized
legislative authority in the state, parliament
Judicial precedent; when hearing a matter, a court must take into
account previous judgments in similar cases.
Codified; to write up the law in a code or in legislation, that is, to
formalize the law.
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