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RU LT1 Jurisprudence Notes
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JURISPRUDENCECHARACTERISTICS OF LAW
1 Law is institutionalised (e.g. parliament, courts) and recorded
o To have certainty, order so you can plan your life, regulate your affairs, not interfere with
rights of others
o Many people, competition for resources etc rules are necessary
2 Rules sometimes informal, sometimes drawn up
3 It is comprised in its origin of concepts of other narrative systems such as religion and morals
4 Law orders society and gives certainty (would descend into chaos without law)
o We all know what are rights and duties are so we don’t impinge on others’
5 Consequences of not following the law; legal and institutional sanctions – COERCION, limitation of
liberty or damages in law of contract etc.
6 The rules are applied/interpreted by institutions of the state
7 BUT Law should be more than just a series of decrees / rules enforced by state power, it should
reflect that shared values of the majority of the population
o Economic values (e.g. France change in power)
o Political values – in previous dispensation political values not united
o Social values (e.g. class/egalitarianism)
o Moral values (conservative/progressive)
- all important because they act as a unified course for a country, if even one is missing can be
highly problematic
- Value systems unite people, more willing to obey law if majority of people subscribe to it
- When legal rules do not reflect any of these values, a legitimacy crisis may result
- EXAMPLES of legitimacy crises: Martin Luther King (Civil rights), Antigone, apartheid
- Why did apartheid lack legitimacy?
o Prior to 1994 falling apart, parliamentary sovereignty; no division of power – courts couldn’t
challenge the substance/content of the laws, Laws were unjust, unfair, immoral
o Minority group held power (in every sense of the word)
o Economic values: Can’t be capitalist if majority wants socialism
o Political values: 1983, Tricameral constitution, still excluded majority (catalyst for rampant
change)
o People not willing to obey law – legitimacy crisis, chaos and disorder, apartheid crumbled
MORALITY AND LAW
- Law isn’t the only normative system to govern conduct in society
o Although black letter law (statues etc) important, law is also based on morality, shared values
(economic, social etc) or else illegitimate
- Some law has no moral content, e.g. driving on LHS of road, AMORAL, while some law is IMMORAL –
illegitimate, apartheid, social engineering etc
- For essay, be prepared to discuss where morality differs from law
, RELIGION
- one way of keeping ‘flock in tow’
- religious texts can be used to govern people
- Sanctions; excommunication, hell
- SIMILARITIES:
o Law and religion often overlap in terms of content (e.g. murder, blasphemy)
o Both studied by interpreting authoritative texts with ritual/formality/procedure
- DIFFERENCES:
o Content can diverge, e.g. adultery not illegal in law, abrogated by disuse in legal system but in
religion regarded as a sin
o Can’t always enforce religious rules (e.g. coveting possessions)
- SA system based on Christian law, recognise certain Christian holidays etc, but still secular and allows
for religious freedom
- Sustained debate as to role religion should play in law – mutually exclusive or should wholly inform
content (e.g. some fundamentalist Islamic states)
- CASE: PRINCE (Rastafarianism permits use of marijuana, differs from law)
INDIVIDUAL MORALITY
- Every individuals ideal self-image (prescription for self-fulfilment);
- PRIVATE CONFLICT between individual and conscience
- Punished by feelings of guilt, burden on conscience
- Morality is voluntary, dispositional (depends on character of person), informal
- Some moral values common and reflected in law, e.g. virtues of charity and honesty reflected in
criminalisation of theft and fraud
- But other things like drinking alcohol etc differ – people have constitutional freedom to define own
individual morality
- CASE: PRINCE (had to choose between contravening the law or sacrificing religion, depended on
personal morality)
SOCIETAL MORALITY
- Norms or collective morals of whole community/particular group within community
- They impure us to conform to the conduct of the society
- Not private, do not concern specific individual
- Social pressure to perform (e.g. conduct/appearance)
- Non-compliance = ostracized
- To a degree linked to law e.g. common laws, murder
- But sometimes not (e.g. death penalty – Constitution comes before views of majority, tax increases)
o Difficult to always determine/enforce community mores
- Another difficulty; how much should state enforce mores? Mill’s harm principle; paternalism
- CASE: R V BROWN (homosexual SM orgies, court conservatively/incorrectly held that conduct was
illegal)
NATURAL LAW
INTRO AND HISTORY
- Universally applicable morals can be known objectively and discovered by reason
o Law is ‘what it ought to be’
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