Chapter 1,2,3,24 and reading 6 summarised
Topics include: The Constitution, Jurisprudence,Functions of the law, History & development of the law, colonialism and legal culture
Everything you need for the June exam.
Latin:
Corpus luris Civilis = the body of civil laws
Ius commune = common law
Ius gentinum = law of nations
lex mercatoria= law of the merchants
iuris prudential= the study, knowledge or science of law
stare decisis= abide by the rules of the decided case
boni mores= society’s prevailing ethics/ morals
trias politica= separation of power
prima faecie= based on the first impression
Extra info from practice MCQ:
True about the nature of law:
- The law comprises of a body of rules to regulate human behaviour which are made
and enforced by a sovereign through the application of sanctions.
- The law is a spatial construct as it applies to a particular group of people within a
particular geographical area
function of the law:
- To set pre-existing, partial rules, based on criteria that can be used to judge and
settle conflicts.
- To protect the rights and freedoms of individuals against those of society as a whole.
- Protecting the rights and freedoms of only the state
- Protecting society by serving as a framework defining disorderly conduct
-
Aims of the law:
- Maintain peace and order in society.
- Accommodate and facilitate social, political and economic change.
- Provide mechanisms, institutions and procedures to resolve disputes.
Form part of a functioning legal system:
- Courts make law by interpreting and developing existing laws in terms of section
39(2) of the Constitution.
- Parliament passes new laws, amends existing laws and repeals old laws.
- Law is enforced by the South African Police Service and administrative officials.
- Legal aid provides legal advice and representation to clients who are financially
needy, either at no charge or at a subsidized rate.
Basic principles of natural law ideology:
- There is a natural morality that exists, which consists of a higher set of universal
norms and values.
- The concepts of universal humanity and dignity form the basis of modern natural law
Chapter 1:
Functions of the law: (5)
1. Setting pre-existing, impartial rules, based on criteria that can be used to judge and
settle conflicts.
1
, 2. Protecting the rights and freedoms of the individual and groups.
(individual rights & freedoms are rooted in our Constitution)
3. Facilitating or making change possible.
4. Protecting society by serving as a framework defining orderly conduct.
(law is required to define the status, functions & powers of individuals, government,
society and admin organs)
5. Providing a mechanism to legitimize actions by the state.
(Law must order the ways in which the state should function. The legal system
attempts to control the misuse and abuse of these powers)
6. Protecting and preserving the legal system.
(It is important to ensure the system can protect itself from threats. The Constitution
can only be changed by a 2/3 majority of the National Assembly and six provinces in
the National Council of Provinces.)
7. Providing institutions and procedures to settle disputes.
How the legal system functions: (8)
1. law-making
(Constitution specifies how the legislatures (aka legal organs) should conduct the
law-making process. Legal organs = Parliament, provincial legislatures & municipal
councils.)
2. legal interpretation & adjudication
(Courts, judges and magistrates = responsible for this)
3. law enforcement
(South African police force and other enforcement agencies)
4. legal administration
5. legal advice and representation
(Advocates & attorneys)
Factors that determine the effectiveness of the law: (11)
1. Public awareness, understanding and acceptance
2. Enforcement
(Law that is not enforced will not operate effectively)
3. Consistency
( does not contradict and that there is a connection between seriousness of the
breach of law and the sanction. E.g. not given death penalty for theft.)
4. Clarity in drafting
5. Changes and Stability
(Needs to be a balance. Law that is changed too many times within a short period
can affect the citizens’ confidence and knowledge negatively.)
Nature of law: (15)
Natural & Positive law = NB ideologies that from the foundation of the law. They are
often used to determine rightness & wrongness of an issue related to the law.
Ideology= a system of ideas/theories that form the basis of political theory
2
, 1. Natural Law (aka Normative Law)
There are unchanging principles of law that define what is right, just and good.
If we use our reason, we will discover these principals of law, since the principals
are accessible to everyone
Principles of natural law apply to everyone, for all time in all circumstances
Man-made laws are just, only if they are in accordance with the natural laws
The human rights protected in the Bill of Rights reflect the basic, universal norms of
NL. NL acts as a guide when the written law is NOT clear on a specific issue.
Human rights and constitutional rights differ
2. Positive Law
Legal authority must come from written law and no other sources (e.g. morality,
religion, etc)
Written law= only authority
They see law as a product of the state
They believe contents of the law can change over time.
Chapter 2: History & Development of RSA law
Ius commune = Latin for common law
Development of RSA common law:
1. Hybrid system:
- RSA common law = a product of European colonialism
- Van Riebeeck who arrived in 1652 was an employee of the VOC. (brought Roman-
Dutch law to RSA)
- In 1806 South Africa was colonised by Britain and English law started to influence the
Roman-Dutch law.
- The RSA common law is a mix of Roman-Dutch (civil law) and English law (common
law).
- RSA has a plural legal system.
Plural legal system = more than 1 valid law operates in the same jurisdiction
- In RSA, customary law of indigenous inhabitants existed alongside the hybrid
common law system.
2. Uncodified legal system:
Laws that govern RSA are not contained in a single collection of laws.
Primary sources of RSA law
1. Statutory Law = acts of national and provincial legislatures (Legislation)
2. Common Law = law of non-statutory origin based on writings of Dutch legal
scholars.
3. Judicial Precedent = inherited from English law
4. Customary laws
3
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