Foundations theme 1

• Law


  A body of rules and principles that regulate human interaction
• Law


  • Orders society and gives some degree of certainty
  • Rules are applied/enforced by institutions of the state: legislative authority, judicial authority, executive authority
  • Content of the law depends on the history of the specific country
• Enforcement


  Some form of sanction will follow if you don't comply with the legal rules
• Sources of law

  • Constitution
  • Legislation
  • Case law
  • Customary law/African customary law
  • Custom law
  • Common law
  • International law
• Law should not just be a series of rules that are enforced by a state power. In a democracy, it should reflect the shared values of the majority of the society
• Ideology (value system) underlying any legal system

  Economic values, political values, social values, moral virtues
• Legitimacy crisis


  When members of a society lose their belief and confidence in their legal system
• Objectives of a legal system

  • Individuals are aware of their rights and have access to the legal system
  • Problems and disputes are dealt with quickly and effectively
  • The legal process involved is not too expensive
  • The legal system handles problems in a consistent way
  • All persons are given a fair hearing
  • There is a right of appeal to a higher authority
  • Disputes are heard by relevant or appropriate bodies that are prepared to process each case with consideration and formality
  • Trials are conducted according to recognized procedures
  • Orderly and harmonious social interactions takes place between members of society and individuals of the State
• Norms


  Rules that regulate human conduct
• Norms that influence human conduct

  • Religion
  • Individual morality
  • Community mores
• Religion


  Determines the relationship between an individual and a Supreme Being
• Religion and law


  Some say they should be mutually exclusive (secular approach), others accept they should have the same content
• There are similarities between law and religion, such as the influence of Christian thought on the western legal tradition, and the fact that both involve interpreting authoritative texts and using rituals and procedures
• There are also differences between law and religion, such as the difficulty of the state enforcing religious norms like "do not covet thy neighbour's possessions"
• Individual morality


  An individual's ideal self-image and the private conflict between an individual and their conscience
• Individual morality sometimes has the same content as legal rules, but the law does not enforce morality as such
• Prince v President of the Law Society, Cape of Good Hope, and others 2002


  • Prince, a Rastafarian who used cannabis as part of religious observance, was found guilty of a criminal offense but the court found the legislation infringed his right to freedom of religion
  • Minister of Justice and Constitutional Development v Prince (Doctors for Life International Inc Amicus Curiae) 2018 - the Constitutional Court declared the legislation invalid and adults may now cultivate and consume dagga in private for personal use
• Community mores (morals)


  The norms of a whole community or group within a community, which are different from individual morality and religion
• Sometimes legal rules and community mores coincide, like the killing of a human being and the principle that damage caused unlawfully
• Trading dagga is illegal
• There is growing respect in our law for an individual to have their own conscience lead the way - you are not forced nor prohibited from using dagga = you can express your individual morality
• This case shows the clash between law, individuals morals, religious views and the cultural values of the society in which he functions
• Community mores (morals)

  The norms of a whole community or a group within that community = collective morals
• Examples of community mores

  • Interracial marriage
  • Etiquette
  • Fashion
  • Views about free love
• Community mores are different than religion and morality because they are not private matters concerning only a specific individual
• Sanction for not complying with community mores

  Disapproval by other members of society
• Sometimes legal rules and community mores coincide, like the killing of a human being and the principle that damage caused unlawfully must be compensated
• The law does not represent communities beliefs if it does not reflect these values
• John Stuart Mill's belief


  • Force can only be exercised over an individual if it prevents harm to others
  • The state cannot interfere just to further the physical/moral good of the individual
  • The law must create a climate where autonomous (self-governing) decision-making is possible
• Technical and social advances have created moral dilemmas such as: should artificial insemination of a 62-year-old woman be allowed? May a 50 year old aged couple adopt a newborn baby
• Paternalistic law


  The law prescribes good conduct and morality like an omniscient father
• The law is paternalistic towards children, because they are not capable of understandig the consequences of their deeds or to make informed choices
• To the law, adults have sufficient insight and knowledge to make free choices
• Justice

  An ideal of any legal system, but it does not have a fixed content
• Distributive justice


  There must be an equal distribution among equals
• Corrective justice


  Aims at restoring inequalities
• An essential element of justice is equality
• Procedural law


  The legal rules and processes according to which a court reaches a decision or solution
• Substantive law


  The material legal rules
• Our legal process strives toward formal justice: it arises from the overriding principle that like cases must be treated alike, and the system of precedent ensures this. Criminal procedure regards an accused person as innocent until proven guilty, and requires that both sides be heard, that a person must appear before court within a reasonable time, and that no force or undue influence may be used to induce an accused to confess to a crime