Summary
Summary THEME 4_ Basic principles regarding constitutional law
- Course
- PBL 210 (PBL210)
- Institution
- University Of Pretoria (UP)
Summary of 12 pages for the course PBL 210 at UP (Summary of Theme 4)
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THEME 4: Basic principles regarding constitutional law,the law in general, the state and the individual
Chapter 2
Introduction
● Constitutional law
○ Consists of the legal rules that are related to all aspects of the state.
● State
○ Different meanings
○ States can be big or small - territory of a state
○ Hospitable states - people living in that territory
○ When states are acting within the international community, namely in the UN -
independence of those states
○ Type of state - political system of that state
○ State makes laws - state authority
○ Since every state has its own law-making authority within its territory, every state
has its own particular legal system.
○ Enters into a contract - status of a legal person
➢ 5 core elements
● People, territory, government authority, legal system and
independence.
● Mateis v Ngwathe Plaaslike Munisipaliteit and Others
○ The Court was faced with a dispute regarding the provisions of the State Liability
Act.
○ The Court held that the concept ‘state’ was an amorphous juristic-political
concept. It had no fixed, general meaning in legislation.
○ The meaning of the word ‘state’ thus depended on every specific piece of
legislation in which it occurred.
The origin, nature, functions, theories and different designations of
the modern state
● State
○ a set of institutions that possess or have obtained the authority to make and
enforce the rules that govern the people in a particular society and which has
internal and external sovereignty over a defined territory.
○ Latin - status meaning standing or condition
➢ The CARGO ship analysis.
, ➢ Ship = vehicle, Cargo = people + content, Crew = government, Captain =
president, Rules = laws, Course = constitution
➢ ANC and the impact of their ANC National Conferences on the
government (ANC)
➢ “Government” of the day removed (National & Provincial Elections…2024
“state” still exists!
● Society
○ In a consensual reciprocal agreement between people for mutual benefit people
act as partners/are (should be) equal
● Community
○ Fellowship, moral commitment, social cohesiveness.
○ People share certain identities and purposes.
○ German ‘gemeinschaft’ - face-to-face relationship
● Form of government
○ namely the way in which the highest political offices are filled and how they relate
to each other and society (for example, a dictatorship).
○ Latin gubernatio - to steer
● Political system
○ to the ensemble of all social structures that function to produce collectively
binding decisions in society, such as the political regime, political parties and
various organizations
○ Politics - Greek polis - city
● Features of Modern state
○ Combined wealth and liabilities of sovereign territory not privately owned or
owed;
○ Combonation of all Organs of State/Institution which manage public affairs;
○ Continuous and independent public power above ruler and ruled;
○ Exists in geographically identifiable territory;
○ Holds internal and external jurisdiction/sovereignty over such territory;
○ In territory there is a community of people with rights and responsibilities
○ Institution of authority and power (both de facto and de jure)
○ Has power to enforce rules and authority including use of legitimate force
○ Power and authority restricted by international law!
○ Powers and functions are regulated i.t.o predetermined legal rules and principles.
➢ State often also bound by such rules
Historical development of the concept state
● Concept of a ‘state’ developed, when centralization of power occurred
● Centralization occurred because of development of agriculture and writing (codification
of information)
● History of ‘state’ began in the West - beginning in classical antiquity
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