JURISPRUDENCE 110
Chapter 1 summary
Learning/Unit outcomes:
o Understand the idea of a social contract and the difference between a Western and African approach to it
o Investigate why we have ‘laws’ and what the law is
o Understand the South African legitimacy crisis
o Understand the relationship between law and morality
o How law as a normative system is distinguishable from other normative systems in context of the change in
the South African legal order
o Investigate the link and meaning between law and justice
o Understand the fallacy of legal certainty and how language, changing values and judicial discretion influence
legal certainty
Law
- Made for and by the people
- Not cast in stone
- Public conscience
- Social contract between society and the state
1.1 Why Law
- Thomas Hobbes
o 17th century
o The world is a place of agony, trauma and violence
▪ Need someone to control this → State
o Humankind realised that they do not want to live in a lifestyle that includes destruction
▪ Therefore people entered into a social contract (agreement) where everyone gives up their
freedom to enable a peaceful co-existence
o Fear of their own destruction makes it possible for individuals to accept the authority of the ruler
- John Locke
o 17th century
o Not everybody is out to get each other
o Thought humans were governed by reason and wanted to live good but there are still threats and
violence
▪ Without fixed rules, conflict cannot be resolved
▪ Therefore people entered into a social contract where they accept themselves to the
authority of the state
• Giving up some of their freedom and in return there is
o Sewage control
o Roads
o Electricity
• Without this ^^ there is a breach of contract
o Therefore maybe do not have to pay taxes
- John Rawls
o 20th century
o Everyone is ignorant to their position in society
▪ Therefore they would agree to the terms of the social contract that are most just to all in
society
o If you are born into a place/ position – going to be very poor
▪ Do not know if you have wealth/ privileges
▪ What are some of the minimum requirements that the state should provide
• Drinking water
• Health and sanitation
• Shelter
• Basic education
• Security
1
, - Social contract
o Western justification for the law’s existence
▪ Theories oh Hobbes, Locke and Rawls
o Western understanding of the contract requires
▪ Separated individuals
• In the original position
▪ Imagined agreement
• Between those individuals
o African approach to explaining law’s existence
▪ Ubuntu
• I am because you are
▪ Belief
• Humans are born into ‘a world of ethical relations and obligations’
o Where we owe duties to other people and vice a versa
o Therefore individuals are important
▪ But cannot escape that they are born into a community
• never truly separated
• do not need to pretend as if we have entered an agreement
with the state
o just recognize to respect each other’s dignity
o born into ethical relations/ obligations
1.2 What is law?
- Characteristics
o Consists of a body of rules and principles facilitating and regulating human interaction
o Orders society and gives degree of certainty
o Rules often applied by institutions of state
▪ If necessary, enforced by employees of the state
• Police
• Traffic police
• Prison authorities
• Sheriff
▪ Most democratic legal systems
• Legislative authority makes laws (legislator)
• Judicial authority enforces law (judiciary)
▪ Enforcement (executive) means that a kind of sanction with be applied when one is not
compliant with a legal rule
• Sanction is a reaction of disapproval following non-compliance
o Can take form in some kind of
▪ punishment
• Fine
• Imprisonment
▪ Compensation
• In the case of breach of contract
o Content of law depends on the history of the specific country concerned
- South African rules and principles of law are found in
o Constitution
▪ 1996
▪ Given the force of law by the democratically elected Constitutional Assembly
• Tells us what the state’s powers are
▪ Contains Bill of Human Rights
▪ Section 2
• Supreme law of the Republic and any law or conduct inconsistent with it is invalid
o Supremacy clause
o Means that all other laws can be tested against the provisions of the
constitution
2
Chapter 1 summary
Learning/Unit outcomes:
o Understand the idea of a social contract and the difference between a Western and African approach to it
o Investigate why we have ‘laws’ and what the law is
o Understand the South African legitimacy crisis
o Understand the relationship between law and morality
o How law as a normative system is distinguishable from other normative systems in context of the change in
the South African legal order
o Investigate the link and meaning between law and justice
o Understand the fallacy of legal certainty and how language, changing values and judicial discretion influence
legal certainty
Law
- Made for and by the people
- Not cast in stone
- Public conscience
- Social contract between society and the state
1.1 Why Law
- Thomas Hobbes
o 17th century
o The world is a place of agony, trauma and violence
▪ Need someone to control this → State
o Humankind realised that they do not want to live in a lifestyle that includes destruction
▪ Therefore people entered into a social contract (agreement) where everyone gives up their
freedom to enable a peaceful co-existence
o Fear of their own destruction makes it possible for individuals to accept the authority of the ruler
- John Locke
o 17th century
o Not everybody is out to get each other
o Thought humans were governed by reason and wanted to live good but there are still threats and
violence
▪ Without fixed rules, conflict cannot be resolved
▪ Therefore people entered into a social contract where they accept themselves to the
authority of the state
• Giving up some of their freedom and in return there is
o Sewage control
o Roads
o Electricity
• Without this ^^ there is a breach of contract
o Therefore maybe do not have to pay taxes
- John Rawls
o 20th century
o Everyone is ignorant to their position in society
▪ Therefore they would agree to the terms of the social contract that are most just to all in
society
o If you are born into a place/ position – going to be very poor
▪ Do not know if you have wealth/ privileges
▪ What are some of the minimum requirements that the state should provide
• Drinking water
• Health and sanitation
• Shelter
• Basic education
• Security
1
, - Social contract
o Western justification for the law’s existence
▪ Theories oh Hobbes, Locke and Rawls
o Western understanding of the contract requires
▪ Separated individuals
• In the original position
▪ Imagined agreement
• Between those individuals
o African approach to explaining law’s existence
▪ Ubuntu
• I am because you are
▪ Belief
• Humans are born into ‘a world of ethical relations and obligations’
o Where we owe duties to other people and vice a versa
o Therefore individuals are important
▪ But cannot escape that they are born into a community
• never truly separated
• do not need to pretend as if we have entered an agreement
with the state
o just recognize to respect each other’s dignity
o born into ethical relations/ obligations
1.2 What is law?
- Characteristics
o Consists of a body of rules and principles facilitating and regulating human interaction
o Orders society and gives degree of certainty
o Rules often applied by institutions of state
▪ If necessary, enforced by employees of the state
• Police
• Traffic police
• Prison authorities
• Sheriff
▪ Most democratic legal systems
• Legislative authority makes laws (legislator)
• Judicial authority enforces law (judiciary)
▪ Enforcement (executive) means that a kind of sanction with be applied when one is not
compliant with a legal rule
• Sanction is a reaction of disapproval following non-compliance
o Can take form in some kind of
▪ punishment
• Fine
• Imprisonment
▪ Compensation
• In the case of breach of contract
o Content of law depends on the history of the specific country concerned
- South African rules and principles of law are found in
o Constitution
▪ 1996
▪ Given the force of law by the democratically elected Constitutional Assembly
• Tells us what the state’s powers are
▪ Contains Bill of Human Rights
▪ Section 2
• Supreme law of the Republic and any law or conduct inconsistent with it is invalid
o Supremacy clause
o Means that all other laws can be tested against the provisions of the
constitution
2
