Topic one lecture notes & textbook summary. Contains information from Ms Johnson's slides which are not my own. This is just an integration of her slides and the textbook.
1. Presupposes a society (island analogy)
a. Need a structure of authority to make rules
2. community needs authority that will govern interaction w/ each other
3. by subjecting we adhere to the law, principle - the society governed by legal rules: the
rule of law
a. result in peaceful organization of society
b. NB: relevant worldwide, the notion of constitutional democracy
The social contract – philosophers
Social contract theories = described as western justifications of law’s existence
o Q: does the social contract also exist in versions of African philosophy?
Cornell + Movangua in Ubunte + the Law: African ideals + post apth jurisprudence –
provides guidance
Theory 1 (Hobbes)
Humans in og state enter the social contract bc we are afraid of our own destruction
( social contract = a conscious decision)
Each indiv = slave to desire + self interest, life = savage + short
Reason leads humankind to realise that such a lifestyle = unsustainable then enter
social contract
Everyone give up their freedom – live in peace
Fear of destruction – acceptance of authority - state
Theory 2 (Locke)
Humans governed by good reason + live good, stable lives
Social contract: uncertainty in life, resolve conflict peacefully
Law consists of rules + regulations: facilitating + regulating – peaceful human
interaction
Thus law orders society + certainty
Humans in og state can govern themselves by means of decision making
Bc we are able to make decisions we should also be held accountable for our actions
, The western philosophy
Requires:
o Separated individuals in og position
o Imagined agreement between individuals
The African philosophy
Belief = that humans are born into a world of ethical relations + obligations where we
owe duties to each other
No need to pretend that a fictious contract was entered into w/ the state
There is you and the bigger community you need to serve
Ubuntu: I am bc you are
o Thus not necessary to “sign” social contract bc it is recognized as a social
responsibility
WHAT IS LAW?
Characteristics of the law
Law = a balancing act, rules that will regulate human interaction
Gives some degree of certainty
Rules = applied / interpreted by institutions of the state
o Institutions of state:
Legislative – creating law
Judicial – apply + interpret the law
Executive – enforces law
o Inst. of state play important role in applying, interpreting + enforcing the law
Enforcement implies consequence for non-compliance: sanction =
punishment (fine/imprisonment/compensation)
Content of law depends on the history of the specific country
o E.g. JVR (roman/dutch law) + African customary law = SA mixed law
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