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Summary Intro to Con law (Study guide Part 1 only)
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- Stellenbosch University (SUN)
Introduction to Constitutional Law 178 notes course work: 2022 (first year under the new curriculum) Only part 1 of the study guide
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Introduction to Constitutional Law - Bonny-Lyle YoungINTRODUCTION TO CONSITTUTIONAL LAW 178
PROF BV SLADE
STUDY GUIDE:
PART 1: Introduction to Constitutional Law
PART 2: Constitutional History of South Africa
PART 3: Negotiated Constitutional Revolution
PART 4: Basic Concepts/ Principles contained in the Constitution of
1996
, Introduction to Constitutional Law - Bonny-Lyle Young
Chapter 1: pg 1- 4
Law is made for and by the people.
It is incomplete.
It can be criticised, adapted, and recreated.
1.1 Why Law? (…why not?)
Law presupposes society.
æ Individually we can cater for our needs and wants as we wish.
æ When in a social regard, others in your environment must be considered and
treated equally.
When a 2nd individual is concerned, certain rules need to be laid down to facilitate
peaceful and productive interaction between the two individuals.
More people = More claims to the same resources.
Large group of people ≠ agree on rules amongst themselves on a continuous basis.
∴ need arises for structures of common authority (GOV) which’ll make rules for the
whole society.
Adherence to this: RULE OF LAW
People enter a “social contract” by agreeing to this.
I. THOMAS HOBBS:
Regards humans in their OG state as people living w/o rules.
Each indv. is a slave to desire + self-interest
Everyone does as they please
Life is savage & short
W/o laws = people destroy each other
BUT!!
Reason leads humankind
… to realise that: self-interest sustaining life
∴ SOCIAL CONTRCT is entered.
According to this,
I. Each ind. Gives up their unlimited freedom i.o.t make peaceful co-existence
possible.
II. Fear of their own destruction makes people accept the authority of the ruler
(gov)
The ruler lays down legal rules everyone must follow,
Bc they agreed to that authority and have given their freedom to the government.
, Introduction to Constitutional Law - Bonny-Lyle Young
II. JOHN LOCKE:
Optimistic view of Humankind in its OG nature
Humans are governed from the very beginning by reason and live good &
stable lives.
Life = uncertain & has conflicts/ threats
W/o fixed and gen. ascertainable rules, which can be applied impartially,
conflict be resolved.
People enter a SOCIAL CONTRACT
(and submit themselves to the authority of the state)
III. JOHN RAWLS:
Built on, but deviated from, the social contract theory.
Used the hypothetical position of people behind a ‘veil of ignorance’ to explain
the acceptance of a just society
Behind the “veil’, everyone is ignorant of their spes. position in society
- Not knowing what spes. talents they have, what race/ gender they are, or
what language they speak
BECAUSE:
- They are in this original position, people would agree, according to Rawls,
to terms in the social contract that are most just to all in society.
The social contract theories between Hobbes, Locke, and Rawls
= Western justification for the law’s existence
Western understanding of a social contract ultimately requires 2 things:
1. Separated individuals in the OG position
2. An imagined (fictitious) agreement between those indvs.”
An African approach to explaining the law’s existence would depart from both of
those requirements…
The belief is that human beings are born into a “world of ethical relations and
obligations” where we owe duties to others, and them to us.
Individuals are important
BUT:
- They can’t escape the fact that they were born into a community from
which they cannot truly be separated from.
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