WHAT IS LAW

.
 DEFINITION
• No agreed definition
• A set of legal rules that presupposes a society
• No society no rules
• Every person is born free
• but freedom must be limited by A SOCIAL CONTRACT law is based on this
contract)
• a person gives up his unlimited freedom so that there can be peaceful
coexistence in the society
• Adherence to the rules – “rule of law”
• Law is made by people for the people
• The state (government) reinforces the law by ensuring that people obey these
rules
 CONCEPTUAL FRAMEWORK
✓ Hobbes - people are selfish and slaves to their desires
✓ Locke - people are rational , need certainty
✓ Rawls - covered by a veil of ignorance
✓ John Locke has argued that people submit themselves to the authority of the
state which is allowed to make laws

Perhaps the rule of Law?

Al Bashir’s case suggested the implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002, that: “ a democratic state based on rule
of law cannot exist or function, if the government ignores its constitutional
obligations…”
 CHARACTERISTICS OF LAW
• It regulates human interactions
• Orders it by avoiding chaos
• Gives certainty
• It is applied, interpreted and enforced by the state institutions/ organs of the state
(TriasPolitica) as advocated by a French Philosopher Montesquieu in his book "Espiritde
Lois” or Spirit of the Laws of 1748)
1. Legislative - responsible for enacting the laws of the state,
2. Executive - responsible for enforcing or implementing and
administering laws enacted and
3. Judiciary- responsible for interpreting the laws and applying their
interpretations to disputes brought before it and resolves
disputes.
• It keeps on changing depending upon the political, economic, global, social and other issues.
• The law tells what persons’ duties/obligations are and also what their rights are
• Law is legally binding – this means that if one does not obey the law, he/she can be held
responsible in a court of law through prosecution.
TYPES OF RULES
• There are 2 types of rules in society:
✓ Legal rules (laws); and
✓ Moral/ethical rules (morality)
• Legal rules (law)- are legally binding rules i.e., everyone in society must obey
these rules. If anyone breaks the law/legal rules, the state can take such person
to court and may be punished with a fine or imprisoned or both sentence
• Moral/ethical rules- These are personal standards of behaviour as to what is
right and wrong, they are based on values.
 NB: Is adultery illegal or immoral? Can laws be immoral? – apartheid, Civil Union Act
17 of 2006?
LAW AND MORALITY
• Law is the state rules
• Morality depends on individual, religious or community
✓ Individual morality is based on own value(s)
✓ Community mores are excised by a group of people like a club
✓ Religious mores –religious beliefs

What is the role of religion? Non- observance varies e.g. Burning fires of hell, not
allowed baptism or marrying, communion etc.
• Two major extremes:
• Fundamentalism- believes that legal rules and religious rules must go together
• Secularism- believes that legal rules and religious rules are separate

N:B: Know the difference between law and morality. E.g. refer to the case
of Prince v President of the Law Society of the Cape of Good Hope
WHOSE MORALITY
• Where does morality comes from ?
• Individual – Nozick
• Religion – Augustine / Aquinas
• Community mores or social construct? Devlin
 LAW AND JUSTICE
• Traditionally justice was seen as an ideal of any legal system, however, the
concept brings controversies.
• Aristotle (a Greek philosopher defined and distinguished two types of justice
✓ Corrective Justice- focuses on restoring inequalities
✓ Distributive Justice – the must be an equal distribution among equals
• Legal process strives towards formal justice (treat like cases alike, hear both
sides
Two principles of natural justice
✓ Nemo iudex in causa sua (rule against bias i.e. no-one should be a
judge in his own cause )
 ✓ Audi alteram partem (hear the other side).
✓
THEORIES OF LAW (SCHOOLS OF THOUGHT)

1. Natural law (NL)/ Normative law

• Natural lawyers consider NL as fundamental i.e. better than other theory
because is made up of universaland eternal norms– comes from a God figure. It
deals with what law as it ought to be.
• NL does not change, it defines what is right, just and good, hence NL principles
should preside over our actions.
• Reflect on Nuremburg Trials, South Africa v Israel what does the crime of
genocide entail?
 THEORIES OF LAW
2. Legal Positivism
• Legal positivists consider that law is what it is. As opposed to Natural
Lawyers, positivists believe that positive/written law is the best and should be
the only authority.
• See S v Adams, S v Werner 1981 1 SA 187 (A). Judges merely apply
the law i.e. ius dicere non facere (judges speak the law, they do not create
the law).
• Positive Lawyers maintain that legal authority must come from written law and
not other sources like religion, morality, philosophy or science
 • If the legal dispute is not stated clearly by the law is not a legal dispute at all
e.g. If the law does not say that drug dealing is a crime, no one should be
found guilty if has a drug or selling it, but natural lawyers would say it is a
crime.
• Courts and academics use these theories to determine the rightness (perfection)
or wrongness (incorrectness) of legal issues.

LAW AND CERTAINTY

• Factors (language, changing values, and judicial
discretion ( Reference to Case law)
Language: Ex Parte Dow 1987 3 SA 829 (D)-
interpretation of the word “in”.
Changing values:
✓ Clarke v Hurst 1992 4 SA 630 (D) - appointment of a wife as her
husband’s curator.
✓ Van Erkv Holmer 1992 2 SA 636 (W)- natural father’s inherent right
access a child born out of wedlock.
✓ S v Ncanywa 1992 1 SACR 209 (Ck) – a man can be found guilty of
raping his wife.
Judicial discretion
• S v Van Nikerk 1992 1 SACR 1 (A) –death penalty was appropriate
sentence
• S v Makwanyane 1995 3 SA 391 (CC) – death penalty is unconstitutional.