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INTRODUCTION TO THE THEORIES OF LAW

CHAPTER 4
INT 1141/1541
 CLASSIFICATION OF THE LAW

 INTRODUCTION
• We did mention that the South African legal system
is a plural legal system; however it is worth nothing
that-
• South Africa has a single system of law [the
subsidiarity principle] which is subject to Constitution
• Nevertheless, the South African law as we find it in
different sources is classified into different disciplines
or branches of law
• This classification helps show how the law fits
together and how it functions

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 Introduction…

• See figure 4.1 for an illustration of the preferred classification of the SA

law [page 137]

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International versus National law

 INTERNATIONAL VERSUS NATIONAL

LAW
 International law
• Law of the nations [public international law].
• Consist of rules that mainly regulate the relationships
between independent states [e.g., SA & Zimbabwe or
SA & USA].
• These rules may be created by international custom
or by international treaties/conventions.

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 International law…

• A treaty binds those states which are a party to it,

and a treaty may exist between two states (bilateral
treaties) or between several states (multilateral
treaties).
• There is also customary international law which is
regarded as settled practice that which states regard
as legally binding norms

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 International law…

• Two examples of customary international laws

are ’the doctrine of non-refoulement’ & ‘the
granting of immunity for visiting heads of
state’.
• International law applies in a state to the extent that
it is incorporated into the national legal system of
that state.
• Moreover, international law applies in SA in so far as
it is not in conflict with the South African Constitution
or legislation.

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 International law…

• The SA Constitution [sec 39(1)] provides for the

‘must’ recognition and application of international law
by our courts in matters involving the interpretation
of the Bill of Rights.
• We have organisations such as the United Nations
(UN) & the African Union (AU) who are also
responsible for laying down of rules of international
law.

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 International law…

• Violation of certain international law rules may results

in such violation being referred to the International
Court of Justice (ICJ)[A state is however not
compelled to appear before this court].
• See page 138 for a summary of the subject matters
which rules of international law may cover.

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 National law

 National law
• Law of a specific state [e.g. South African law].
• SA national law is divided into substantive and
procedural law.

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 National law…

 Substantive law (material law)

• Determines the content and meaning of the different
legal rules (legal principles).
• For example, it prohibits us from committing criminal
offences and determines which human acts
constitute criminal offences (e.g. murder).
• It further determines the content and application of
the different rights which an individual may have
(e.g. acquisition of ownership).

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 National law…

 Procedural law (adjective law)

• Regulates the enforcement of substantive law.
• Effectively, it determines the manner in which a case
must be practically handled when a legal rule has
been violated.
• Procedural law, for instance, provides the process
according to which someone is prosecuted for
murder.

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 Divisions of Procedural Law

 Procedural law
• The SA procedural law is divided into the Law of
Criminal Procedure, Law of Civil Procedure & Law of
Evidence.
 Law of Criminal Procedure
• Part of adjective law which prescribes how people
who have allegedly committed criminal offences
should be prosecuted.
• Lays down the rules for the investigation of the
alleged offence as well as the process in court.
• See chapter 10.

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 Divisions of Procedural Law

 Law of Civil Procedure

• Part of adjective law which determines the procedure
to be followed when an individual wishes to enforce
her/his rights against another [e.g. when one wants
to claim damages against another who has caused
damages to their motor vehicle].
• The law of civil procedure determines how a legal
claim should be instituted.
• See chapter 9.

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 Divisions of Procedural Law

 Law of Evidence
• Determines how the facts in either criminal or a civil
case must be proved.
• Effectively, it regulates the manner in which
witnesses should lay their evidence before the court
and it determines what kinds of evidence are
inadmissible.
• See chapter 12.

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 Public versus Private law

 Public versus Private law

• Substantive law is traditionally divided into public
and private law.
 Public law
• Determines the extent of state authority.
• It regulates the organisation of the state, the relation
between the different organs of state and the
relation between the state and its subjects.
• The relationship between state and its subjects is an
unequal one (vertical relationship).

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 Public versus Private law…

 Private law
• Regulates the relationships between persons (legal
subjects).
• Moreover, private law determines the different rights
and duties that persons may have towards one
another.
• These rights may find its origin in contracts,
delicts, marriage, or ownership etc.
• Private law relationship is an equal one (horizontal
relationship).

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 Public versus Private law…

• The state may also be a party in the area of private

law (on an equal footing with any other person).

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 Divisions of public law

 Divisions of public law

 Constitutional law
• Determines the nature of the state, its constituent
organs & relationships between different organs of
the state.
• Divides state authority into three branches, namely –
the legislature, the judiciary & the executive.
• The Constitution [with Bill of Rights] forms the basis
of constitutional law.

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 Divisions of public law

 Administrative law
• Controls the administration of the state in general.
• Determines the way in which the state is to exercise
its executive powers through its different spheres of
government and or through its cabinet and or
different departments and or its various boards.
• Administrative law ensures that government acts in
accordance with the law and in so doing try to
prevent the government from exercising their powers
to the detriment of individuals.

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 Divisions of public law

• Section 33 of the Constitution provides that everyone

has the right to just administrative action that is
lawful, reasonable & fair.
• The Promotion of Administrative Justice Act 3 of 2000
(PAJA) is the relevant statute passed by parliament
to give effect to section 33 of the Constitution.
• PAJA allows for the court review of administrative
decisions if such decisions are unlawful, procedurally
unfair & unreasonable.

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 Divisions of public law

 Criminal law
• Determines which acts amount to criminal offences.
• It also dictates that criminal offences must be
punished.
• A criminal offence is an act which is against the
state, hence the state must prosecute and punish the
individual offender.
• The manner in which prosecution takes place and
punishment is imposed is determined by procedural
law.

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 Divisions of private law

 Divisions of private law

 Law of persons
 Family law
 Law of patrimony
• Property law
• Law of succession
• Law of Obligations
-Contract
-Delict
• Law of Intellectual property

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Commercial law (Mercantile law)

 Commercial Law
• Houses numerous branches of law important
for trade and Industry.

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 Commercial law…

• Represents a mixture of public and private

law (mostly specialised private law)
• Others are exclusively regulated by the state
in the form of legislation and entail a state-
citizen relationship (e.g. Tax law).
• Examples of commercial law, e.g. company
law, law of insolvency, labour law & banking
law.

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 Supplementary Disciplines

 Supplementary Disciplines
 Private international law (conflict of laws)
 Legal philosophy (Jurisprudence)
 Legal interpretation
 Comparative law
 Legal history

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End of Chapter 4

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