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Summary Introduction to Law, Term 2
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This is a comprehensive summary of all content covered in Term 2 of Semester 1. Please note that 'Term 1' is not prescribed for the end of year exam.
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Introducton to Law 171: NotesTerm 2: 2018
Table of Contents
TOPIC 2: WHAT IS THE LAW.......................................................................................................................................1
1. WHAT IS THE LAW?......................................................................................................................................................2
2. LAW AND MORALITY.....................................................................................................................................................3
3. LAW AND JUSTICE........................................................................................................................................................3
4. LAW AND LEGAL CERTAINTY...........................................................................................................................................3
5. THE HISTORY & IDEA OF A UNIVERSITY.............................................................................................................................4
TOPIC 3: CLASSIFICATION OF SOUTH AFRICAN LAW..................................................................................................5
INTRODUCTION:...............................................................................................................................................................6
1. INTERNATIONAL LAW:...................................................................................................................................................6
2. NATIONAL LAW:..........................................................................................................................................................7
TOPIC 4: ADJUDICATION; INTERPRETATION AND DISPUTE RESOLUTION...................................................................8
1. INTRODUCTION: INDEPENDENCE AND IMPARTIALITY AT THE CORNERSTONES OF ADJUDICATION...................................................9
2. TERMINOLOGY AND TYPES OF PROCEEDINGS....................................................................................................................10
3. STRUCTURE OF THE JUDICIARY......................................................................................................................................11
4. THE RULES OF PRECEDENT...........................................................................................................................................13
5. INTERPRETATION........................................................................................................................................................14
6. ALTERNATIVE DISPUTE RESOLUTION..............................................................................................................................14
TOPIC 5: LITIGATION – NOT PRESCRIBED FOR 2018.................................................................................................14
TOPIC 6: INTRODUCTION TO PRIVATE LAW: SUBJECTIVE RIGHTS............................................................................14
THEORY OF SUBJECTIVE RIGHTS:........................................................................................................................................15
TOPIC 7: LEGAL ACTORS...........................................................................................................................................17
1. INTRODUCTION..........................................................................................................................................................18
2. PROFESSIONALISM......................................................................................................................................................18
3. PRIVATE LEGAL PRACTITIONERS.....................................................................................................................................18
4. PUBLIC LEGAL PRACTITIONERS.......................................................................................................................................20
5. PRESIDING OFFICERS...................................................................................................................................................20
6. COURT OFFICIALS & RELATED ROLES..............................................................................................................................21
7. OTHER LEGAL OFFICERS & FUNCTIONARIES......................................................................................................................22
8. THE PROTECTORS.......................................................................................................................................................22
9. OTHER LEGAL INSTITUTIONS.........................................................................................................................................22
Topic 2: What is the law
Prescribed Material:
Humby et al Chpt 1 – The Law
R Anderson “The idea of a university today” htpp://www.historyandpolicy.org/policy-papers/papers/the-
idea-of-a-university-today
Additonal Reading:
Du Plessis LM “Introducton to Law” 3 ed, Juta: SunLearn – only headings 3.3 & 3.4
OUTLINE:
1. What is the law?
1
, 2. Law and Morality
a. Religion
b. Individual morality
c. Community morals
3. Law and Justce
4. Law and Legal Certainty
5. The history & idea of a University
AIM:
You must be able to distnguish between legal norms and moral norms (religious norms, individual norms and
community norms).
TARGETS:
After studying the material, you must be able to do/ know:
1. To know what is the primary functon of law in society;
2. To know the factors which may impact on the efectveness of law;
3. To know how the law as a system of norms is similar or diferent from religious norms, individual norms or
community norms;
4. What is justce?;
5. Have an opinion on whether the law must always embody justce to qualify as law;
6. To explain the legal philosophical approaches of legal positvism and natural law in answering the queston
whether law must always embody justce to quailify as law;
7. To formulate an opinion on whether the SA Law strive towards adjectval or formal equality with reference to
examples.
1. What is the law?
Defniton:
Body of rules governing human conduct, recognized by people as binding, and enforced by public authorites
(the state).
o Law is prescriptve rather than descriptve. Prescriptve law prescribes how human beings in an
ordered society ought to behave and what should happen if they don’t obey the legal norms.
o Law is an atribute to human life that appears when people group or associate themselves into a
society.
o Philosopher, Thomas Hobbes (1588-1679): “State of nature” in such a state ruled by instnct, small
groups of humans such as families or tribes, eventually came to the realisaton that if they did not
order their society, they would soon become extnct.
o Gave rise to social contract.
o In exchange for the sacrifce of their unlimited freedom in a state of nature, they would receive the
guarantee of protecton and order from these leaders.
Legal norms: generally binding rules of conduct issued by the state authority. Intended for the regulaton of
social relatons. Legal norms determine the rights & dutes of the subjects of legal relatons.
Legal positiiss: school of thought that law is something invented for humans by humans, & that rules of
law are human-made or ‘posited’ by humans.
Natural law: school of philosophers (natural lawyers) argue that humans ought to be judged against a higher
standard of morality natural law and that human laws falling short of the standard are not really laws at
all.
Others: neutral system of rules.
Marxist lawyer: law is not neutral since it always favours the interests of the ruling class. In reality it is an
instrument for oppressing the proletariat (working class).
Fesinist: law entrenches gender inequality.
Authorites:
Legislature makes law
Judiciary applies law
2
, Executve enforces law as a whole (police)
Functons:
Ensure order in the relatonships and interactons between people and things in society, & justce in the
community.
How? By specifyng the nature and extent of rights, dutes, powers and immunites arising in relatonships &
it establishes the judicial system as the authoritve system setles disputes.
Law device used to regulate economic & social conduct in society.
2. Law and morality
Close connecton between morality and religion many standards of right and wrong are dictated/inspired
by religion.
Also a close connecton between law and morality law is concerned with upholding standards.
Also a close connecton between law and religion law is most ofen innuenced by religious rules, practces
& beliefs
Standards of law & morality not necessarily the same eg. Apartheid South Africa, a social system
internatonally recognised as morally evil was upheld by law.
Normatve system that innuences our lives
Religion strongly innuenced by Western legal traditon
Indiiidual sorality concerns connict between individual and his conscience. Law does not specifcally
enforce morality as such.
Cossunity sores norms of an entre community. R v Brown 1993: Homosexuals violent acts willing.
Religion:
Belief in powers superior to people which are thought to control the course of nature & human life itself,
and which may dictate rules of conduct for humans.
Morality:
System of morals individual or group beliefs about what is right and what is wrong.
Law/Religion/Morality:
Prince v President of the Law Society 1998: Appellant was a Rasta and used weed recreatonally. Was not
allowed to become a lawyer.
S v Makwanyane: Decision = death penalty is unconsttutonal.
3. Law and justce
Justce does not have a fxed content
Essental element: emphasis on equality
Quality of being fair & equal.
Does the law always embody justce?
o Content of legal rules (material law) don’t necessarily coincide with justce
Does law need to embody justce to qualify as law?
o 2 approaches:
Legal positvism what the law is
Natural law what the law ought to be. Unjust law is not law. Legal norms found in human
nature & reason.
Distributve justce: equal allocaton among equals.
Correctve justce: aims at restoring inequalites
Adjectve (procedural) law: comprised of legal rules/processes. According to which a court, through
applicaton of substantve law, reaches a decision.
Substantve (material) law: defnes rights & responsibilites in civil law, and crimes & punishments in criminal
law.
Legal process: strives for formal justce like cases treated alike & accused is innocent untl proven guilty.
4. Law and legal certainty
Means that law is predictable, applied consistently & has a fxed and certain context.
Factors that challenge legal certainty
3
, o Language: words ae ofen vague and/or ambiguous don’t have fxed/simple meaning. Eg. Ex Parte
Dow 1987 Marriage Act “in”
o Changing values: developments in society. Law must adopt to changing circumstances to remain
effectve. Eg. Tobacco Products control act change of attude. Clark v Hurst 1992 natural fathers
of children born out of wedlock.
o Judicical discreton: Subject to prejudices & attudes use consttuton as main authority. Eg. S v
Van Niekerk majority said - death penalty appropriate and 1 judge said life in prisonment is
beter.
5. The history & idea of a university
Robbins report & the Oxbridge model:
‘Robbins principle’ university places should be available to all who were qualifed for them by ability &
ataintment
Nature of higher educaton
Critcized for promotng a luxury university model, which emphasized residence and the close relatons of
teachers and taught - proved fnancially unsustainable once higher educaton moved from expansion of elite
privilege towards mass enttlement
Robbins-Oxbridge model represented a very English 'idea of the university'
Newman’s Idea of a University:
'The Idea of a University Defned and Illustrated' to a series of lectures originally given at Dublin in the 1850s
knowledge should be pursued 'for its own sake'
search for truth was part of an educatonal ideal
was inseparable from moral and religious educaton
'universal knowledge'
These ideals - basis of a characteristc Britsh belief that educaton should aim at producing generalists rather
than narrow specialists, and that non-vocatonal subjects - in arts or pure science - could train the mind in
ways applicable to a wide range of jobs.
Humboldtan ideal:
Humboldtan model of higher educaton concept of academic educaton
Startng with the University of Berlin, founded in 1810, the 'Humboldtan' university became a model for the
rest of Europe
Idea of a university = pursuit of truth: interacton between lecturers and students; partcipaton by students;
o Academic autonomy
The functon of the university was to advance knowledge by original and critcal investgaton, not just to
transmit the legacy of the past or to teach skills.
'community of scholars and students' engaged on a common task
only in the twentieth century that research came to be seen as a vital activity in itself
contributing to industrial progress, military strength, and social welfare, and requiring collaborative rather
than individual effort
Challenges:
Elitst
o Discussion
o For eg. “Fees must fall”
o Student protests
o Democratsaton & greater access
o Chance for renewal; reinvigorate ideals like critcal & original thought
Marketzaton; managerialism
o Students as customers
o Discussion
o Why study at a University?
4
, o Students: actve partcipants of learning process? Social change? Passive partcipants in learning
process?
Vocatonal; instrumentalist: producton of knowledge & applicaton only for individual use or for larger SA
society?
o Difference between University & tech colleges?
Pressure by state
o Eg. Proposed changes to Higher Educaton?
o Discussion:
Should uni’s enjoy unlimited insttutonal autonomy? Or should uni’s be subject to control by
the State? Danger? When is State interference justfed?
o Challenges to cosmopolitan nature of the idea of a university
May assist in making tertary educaton more accessible & socially relevant.
Need balance?
Implicatons for teaching & learning?
Implicatons for Law Facultes:
o Between legal rules and social context, betw form and substance
o Between academic excellence, integrity and vocatonal training
o Between human beings, transformatve ideals (e.g. human rights, democracy) and the market
o Globally relevant; West law (European) + African customary law
Summary:
The idea of a university, which combines teaching and research and develops the 'general powers of the
mind' as well as giving specialized training has three possible fates. First, it could be extended with only
minor compromises to all parts of a mass higher educaton system. This was the Robbins vision, but it makes
excessive demands on resources, and seems unnecessary for much vocatonal training. Second, one may
declare the Humboldtan university dead, consign it to the past, and ft all universites into a utlitarian and
managerial mould; that is how pessimistc critcs see the trend of policy under recent governments. Thirdly,
there can be more open acceptance that universites have different missions, interpretng the idea of the
university in different ways - on conditon that access to research-led universites is fair and democratc, a
stpulaton unlikely to be met if they are privatzed or allowed to charge market fees. The American example
- and the Californian tripartte system in partcular - suggests that embracing differentaton is healthier than
denying it. The disinterested pursuit of knowledge and the ideal of liberal educaton seem currently in beter
shape there than in Europe.
If we seek guidance from the past, it is beter to see the 'idea of the university' not as a fxed set of
characteristcs, but as a set of tensions, permanently present, but resolved differently according to tme and
place. Tensions between teaching and research, and between autonomy and accountability, most obviously.
But also between universites' membership of an internatonal scholarly community, and their role in
shaping natonal cultures and forming natonal identty; between the transmission of established knowledge,
and the search for original truth; between the inevitable connecton of universites with the state and the
centres of economic and social power, and the need to maintain critcal distance; between reproducing the
existng occupatonal structure, and renewing it from below by promotng social mobility; between serving
the economy, and providing a space free from immediate utlitarian pressures; between teaching as the
encouragement of open and critcal attudes, and society's expectaton that universites will impart
qualifcatons and skills. To come down too heavily on one side of these balances will usually mean that the
aims of the university are being simplifed and distorted.
Topic 3: Classifcaton of South African Law
Prescribed Material:
Humby et al Chpt 6 – Classifcaton of South African law
AIM:
5
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