The summaries provide an in-depth, comprehensive explanation of the basic legal concepts needed to further your legal studies. The explanations and notes are straightforward and clear, without unnecessary information.
• Discuss what legal tradition is, explain how it helps us to understand a legal
system 4 marks (pointed out in class).
Tradition
• A belief, or a way of doing things that has existed for a long time.
• It has the connotation of something inherently good or self-justifying.
• The implication is that traditions do not need to be explained rationally or be
measured by an external standard/set of values.
• Role of tradition in modern society
o Politics
o Religion
o Communication
o Identity
• A legal tradition is a set of deeply rooted, historically conditioned attitudes
about the nature of law, about the role of law in society and the polity, about the
proper organization and operation of the legal system, and about the way law is
or should be made, applied, studied, perfected and taught.
• The concern is with how legal traditions provide a broader context within which
we can understand a legal system.
• A legal system is an operating set of legal institutions, procedures and rules.
• It may also be defined as the current law of a particular entity, typically a
sovereign state.
• National legal systems are often classified into groups; however, membership of
a group does not mean that institutions, processes and rules are shared.
• But all members of the group have something in common, which distinguishes
them from other legal traditions.
, • Sources of our mixed legal system
o (1) Civilian tradition
o (2) Common law tradition
o (3) African customary law, the neglected ‘third-grace’.
• The Constitution adds an “overarching objective value system” to our legal
heritage.
• As one of the oldest traditions, its origin is understandably shrouded in the
mists of time, when early human communities must have started developing
rules or norms that govern their behavior.
• Nowadays, virtually no indigenous people live purely according to customary
tradition, but rather in contexts where it interacts with other traditions.
• Customary traditions can co-exist with others in a relationship that sometimes is
described as “legal pluralism”.
•
Institutions such as a council of elders play an important role in
applying customary norms, and dispute resolution is generally achieved
through informal mechanisms. There is no central authority, meaning that
crimes would have been dealt with by the community, which may involve
negotiations.
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