Study Unit 2 – TUTORIAL QUESTIONS

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Section A

Question 1

Which one of the following is CORRECT?

A Marxist will define law as:

A. Law entrenches gender inequality.

B. The law has a moral dimension, human law ought to be judged against a higher standard of
morality.

C. Law is an instrument for oppressing the working class by favouring the ruling class.

D. The validity of law depends on its origin. Law is law as it is.

Question 2

Which of the following statement explains what happened in the Pre-classical Law era of roman legal
history?

A. Rules of good faith and fairness, called praetorian law, were developed

B. This was the era of development and promotion of equity

C. Era where the Twelve Tables were published

D. Era of the Corpus Iuris Civilis (The Body of Civil Law)

Question 3

Which one of the following does NOT define what law is?

A. Law maintains order and justice in society.

B. Law reflects shared values of society.

C. Law is rules to regulate people’s integration with each other.

D. Law is another source of law that is primarily based on social practices and customs.
Question 4

Christopher Forsyth in his article on The Judicial Process, Positivism and Civil Liberty II, argues that
South African judges have denied the fact that by interpreting a statute may need to assign meaning
to it and thus end up making the law on that point.

A. True

B. False

Question 5

Christopher Forsyth critiques Johan Dugard's article on which one of the following points?

A. Rejection of natural law

B. Rejection of positivism

C. Rejection of social contract.

D. Correct to criticize the judiciary.

E. Judges' values play a role in their decisions.

Question 6

Which one of the following is incorrect?

A. A lawless society would be marked by anarchy.

B. Law is a device used to regulate economic and social conduct.

C. Law is descriptive.

D. Law is defined as the body of rules governing all conduct and it is enforced by the courts.

Question 7

Which one of the following is INCORRECT?

A. The law is a set of prescriptions for orderly conduct in society.

B. Law can be enforced.
C. Law describes how humans in society ought to behave.
D. Law rewards behaviour that society deems acceptable.
Question 8

Which one of the following does not explain the importance of roman legal history?

A. Roman law is the only subject that enables students to gain an overview of an entire system of
public law

B. Legal history explains the present character of law.

C. Roman law enshrines principles of natural justice and fairness.

D. A knowledge of legal history facilitates necessary change in laws.

Question 9

Which one of the following is CORRECT?

Legal positivists will define law as:

A. Law entrenches gender inequality.

B. The law has a moral dimension, human law ought to be judged against a higher standard of
morality.

C. Law is an instrument for oppressing the working class by favouring the ruling class.

D. The validity of law depends on its origin. Law is law as it is.

Question 10

The law is a set of norms distinguishing good from bad. Which one of the following is not a normative
system that influences our lives and determines our conduct?

A. Justice

B. Religion

C. Individual morality

D. Community mores

Question 11

Religion is associated with a belief in powers superior to people. Which one of the following statements
is correct in relation to law and religion?

A. Law is associated with perfect rules handed down by human agency

B. In ancient times there were many societies where the functions of priests, and lawmakers were
separate and never overlapped.
 C. The law and justice has existed separately, while morals and religion overlapped with various
other systems

D. Law is associated with imperfect rules

Question 12

Which one of the following legal philosophers is the founder of legal positivism?

A. John Locke
B. Thomas Hobbes
C. Jeremy Betham
D. Sir William Blackstone
E. John Austin
F. HR Halo & E Kahn

Question 13

Which of the following statements explains what happened in the era of Justinian Law in Roman legal
history?

A. Rules of good faith and fairness, called praetorian law, were developed.

B. Codification of Roman Law that led to the compilation of the Corpus Iuris Civilis

C. Period where the Roman emperor retained all power, he replaced praetors and created a civil
service

D. Codification of the Twelve Tables on bronze plates

Question 14

This statement comes from which of the following journal articles?

“ South African judiciary has been relatively frank about its law-making function in the development of
the common law. In this respect, it has shown a greater understanding of the judicial process than the
English judiciary.”

A. John Dugard
B. Christopher Forsyth
C. Kleyn & Viljoen
D. None of the above
Question 15

According to John Dugard’s article on the Judicial Process in the South African Law Journal (between
pages 182 – 186): “Natural law, inspired by Austin and Jeremy Bentham, was the predominant legal
philosophy of nineteenth-century England. It was exported to the Cape after the British annexation of
1806, where it took root and flourished.”

A. True
B. False (Legal Positivism ….)

Question 16

According to Christopher Forsyth, legal positivism when properly understood reveals rather than
obscures the deficiencies of the judiciary?

A. True
B. False

Question 17

What is the task of courts in South Africa? Choose the most correct answer.

A. to legislate
B. to resolve legal conflicts and legal questions
C. to execute laws?
D. to hold citizens to account

Question 18

The standards of morality not only vary from one society to another, but can also change dramatically
from time to time to adapt to changes in society itself.

Which of the following murder cases is a true reflection of this statement?

A. S v C 1978 (3) SA 978 (N)

B. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).
C. Prince v President of the Law Society of the Cape of Good Hope and Others 2001 (2) SA 388
D. S v Makwanayane 1995 (3) SA 391
E. S v Jordan and Others 2002 (1) SA 797 (T)
Question 19

Which of the following statement about legal certainty is INCORRECT?

A. Large areas of law are fixed and certain.

B. Legal certainty means that law is predictable.

C. Factors such as language, etiquette, hanging values and judicial discretion make legal certainty
an illusion

D. Legal practitioners want to know what the legal position in a specific case is so that clients can
be advised and lives can be planned

Question 20

John Dugard in his article on the Judicial Process, made this comment: “I have attempted to present
the picture of a judiciary which views its task in the field of statutory interpretation as a purely
mechanical one; of a judiciary content to leave all policy matters to Parliament; of a judiciary seemingly
immune to value judgments.”

In this statement Dugard was referring to which one of the following concepts?

A. Social Contract
B. Natural Law
C. Legal Positivism
D. Legal Certainty

Section B

2.1 Define Law:

The body of rules governing human conduct, recognised as binding by people and enforced by
public authorities (the State).
2.2 Which philosopher made this statement: “In such a state, ruled by pure instinct, a small group of
human beings such as families or tribes eventually came to the realisation that they needed to
order their society or risk extinction. This realisation gave rise to a social contract.”

Philosopher – Thomas Hobbes (1588-1679)

2.3 Explain this statement: ‘The law . . . is a set of prescriptions for orderly conduct in a society.’

• Law is prescriptive - it sets norms for how people should behave. Therefore, law is not only
concerned with what is, but rather with what ought to be (how people ought to behave, and
what ought to happen in various circumstances).
• Law, coming from some sort of social contract, does not try to describe or predict human
behaviour, but rather prescribes to groups of humans how to behave in an ordered society,
and prescribes certain sanctions.

2.4 Explain at least three functions of law in society

• Law ensures order in the relationships and interactions between people, and between people
and things in society.
• Law maintains order and justice in the community.
• Law is a device used to regulate economic and social conduct in society.

2.5 How would the following theorists define law?

2.5.1 Legal positivists - argue that law is essentially something invented for humans by
humans, and rules of law are human-made or ‘posited’ by humans (i.e. the law as laid
down, the law as imposed by the State). Therefore, the law as laid down (legal
positivism) should be kept separate from the law as it ought morally to be (natural law).

2.5.2 Natural lawyers - argue that human laws ought to be judged against a higher standard
of morality (natural law) and that human behaviour falling short of this standard are not
laws at all. Therefore, the law has a moral dimension: the law is not merely that which
is laid down (legal positivism), but that which should be/ought to be (natural law).

2.5.3 Marxist lawyer – argues that the law is not neutral since it always favours the interest of
the ruling class. People are fooled into thinking that law is neutral, and law is an
instrument for oppressing the proletariat or working class.

2.5.4 Feminists - would argue that the law entrenches gender inequality.

2.5.5 Critical theories - would argue that laws entrench racial inequality.
 2.5.6 Systems of African Indigenous Law - view law and legal institutions as inseparable from
the values and practices of particular communities, as such they are concerned with
how the law supports the well-being of a community, how it develops alongside the
community, and is observed by its members.

2.6 Law is not the only normative system that attempts to guide human conduct, law has existed
alongside various system of religion and morality. Discuss the effect of law on these social norms
by answering the following questions.

2.6.1 There are some similarities between the content of law and the dominant religion. Explain
the connection between law and religion.

Law is often influenced by religious rules, practices, and beliefs. Sometimes religion is
even used to uphold and justify a specific legal system.

2.6.2 Law tends to intervene where people have strong moral opinions (e.g. contraception,
abortion, death penalty, treatment of animals, equality in society). Explain the connection
between law and morality.

There is a close connection between morality and religion because many standards of
right and wrong are dictated or inspired by religion.

2.6.3 Justice is a highly subjective ideal it is linked with religion, morality, and other spheres of
human belief. Explain the connection between law and justice.

Law aims to achieve justice, that is, treating people the same way. Justice may be
regarded as the ideal notion of what is fair and right, and as such it should be reflected in
every law.

2.6.4 Legal certainty means that the law is predictable, it will be applied consistently and that it
has a fixed and certain content. Why is it that certain factors make legal certainty an
illusion?

• Language must be interpreted; words do not have fixed and simple meanings. A
very simple word or phrase can be understood in more than one way.

• Changing values of a community, technological and other

advancements/developments must be taken into account. The law must adapt to
these changing circumstances in order to remain effective. Through legislation and
caselaw (judge-made law).

• Judicial discretion – the interpretation of words and norms imply that judges have
a discretion in applying the law. This discretion inevitably highlights subjective
prejudices and attitudes. Judicial subjectivity appears especially in cases of
sentencing where no fixed sentence is prescribed.