Foundations of Law
TEST ONE REVISION NOTES 2022
The Concept of Law
Concept & Function of Law
Why Law?
With a society or a large group of people comes the need for an authoritative structure or
government to make rules for the whole society. Compliance and/or adherence to these
rules is known as the rule of law. The imposition of rules thus results in there being the
peaceful organisation of society
Social Contract Theory
People live together in a society in accordance with an agreement that establishes moral
and political rules of behaviour.
• Western understanding: there were separate individuals in the original position,
there was no social contract between them, and life was filled with uncertainties
and threats and these factors would have forced them into a social contract in
order to be able to have safe and more peaceful lives. There would be an
imagined, fictitious agreement between those individuals.
• African understanding: Ubuntu; the idea that human beings are born into a world
of ethical relations and obligations, I am because you are. We owe duties to
other people, and they owe duties to us.
Note:
What is Law?
The law is supposed to
Characteristics of Law reflect the shared values
of the society and when
• A body of rules and principles facilitating and regulating human interaction.
this does not happen,
o Rules that govern human behaviour. there becomes a
legitimacy crisis, the law
• The Constitution of the Republic of South Africa 1996 has created various
loses its authority and
institutions that create, apply, interpret and enforce the law. The institutions are people no longer respect
namely: or abide by it because it
no longer reflects the
o The Legislative Authority: makes laws. values of the society.
o The Judicial Authority: applies and interprets the law.
o The Executive Authority: resolves legal disputes.
, • Enforcement comes in when sanctions are introduced whenever someone does
not comply with the legal rules that have been put into place.
• Sanctions being a form of punishment for non-compliance.
o Depending on the scope of non-compliance, sanctions vary from either
being fines or imprisonment.
NB: The content of the law of a particular country depends on the history of it. The legal
development of laws varies country by country and it has an impact on the character
of the law and the legal system.
• The general characteristics of law manifest through the various sources of law
that a particular country has. In South Africa we have:
o The Constitution, Legislation and Case Law.
• If we are to further break down the sources of South African law, we will find:
o African customary law: laws of the First Nation peoples of Africa.
o Common law: inherited from South Africa’s colonial heritage.
o Customs: practices that developed as law due to long time usage.
o International law: drafted across and/or by different states.
Main Objectives of a Legal System
• Individuals are made aware of the rights they have, and they can access the legal Nota Bene
Section 15 of the
system.
Constitution of the
• Legal disputes and problems are to be dealt with in an efficient manner. Republic of South Africa
1996 protects the right
• The legal system is consistent in the way it resolves problems. to freedom of religion.
• All people are given a fair hearing and have the right to appeal a court decision
with a higher authority.
• Disputes are heard by the relevant bodies in that they are prepared to process
each case with due consideration and formality.
Additional Fact
• Trials are conducted according to established and recognized procedures.
Church law is known as
• Interactions between members of society and individuals and the state are canon law.
harmonious in nature.
Law & Morality
Paternalism
• The law is a set of norms that distinguish good from bad, it is a rule that regulates The state acting on the
better interests of
human conduct.
children since they do
, • The normative systems that influence our lives and determine our conduct are: not have the capability
to understand the
o Religion
consequences of their
o Individual Morality actions or make
o Community Mores informed choices.
Religion
Religion determines the relationship between an individual and a Supreme being.
• The common ultimate form of sanction for non-compliance is some form of hell.
• Religion can lead to the development of extreme views.
o Secular approach is that religion and law should be mutually exclusive. It
is not the job of the state to enforce religion, but everyone should be
granted the freedom of religion.
o Another approach: religion and law should have the same content.
• Critiques of the abovementioned approaches:
o There are similarities between law and religion with the Western legal
tradition being largely influenced by Christian beliefs.
o Sometimes the content of religious and legal rules may be the same.
Examples being offences such as murder and theft are prohibited by
many religions.
Individual Morality
Morality is every individual’s self-image
• This concerns a private conflict between an individual and her conscience.
• The law does not always enforce ideals associated with individual morality and
there can sometimes be clashes the law and an individual’s morals.
• The sanction for non-compliance is one’s own conscience.
Community Mores
The norms of the community as a whole: collective morals.
• Sanction for non-compliance is varying degrees of disapproval by other members
of society. Unjust Laws
• Sometimes community mores and legal rules coincide, prohibition of murder and Although the many
oppressive acts
wrong damage warranting compensation. perpetuated by the
• Harm is used as a decisive criterion to determine whether socially deviant Apartheid government
towards the black
TEST ONE REVISION NOTES 2022
The Concept of Law
Concept & Function of Law
Why Law?
With a society or a large group of people comes the need for an authoritative structure or
government to make rules for the whole society. Compliance and/or adherence to these
rules is known as the rule of law. The imposition of rules thus results in there being the
peaceful organisation of society
Social Contract Theory
People live together in a society in accordance with an agreement that establishes moral
and political rules of behaviour.
• Western understanding: there were separate individuals in the original position,
there was no social contract between them, and life was filled with uncertainties
and threats and these factors would have forced them into a social contract in
order to be able to have safe and more peaceful lives. There would be an
imagined, fictitious agreement between those individuals.
• African understanding: Ubuntu; the idea that human beings are born into a world
of ethical relations and obligations, I am because you are. We owe duties to
other people, and they owe duties to us.
Note:
What is Law?
The law is supposed to
Characteristics of Law reflect the shared values
of the society and when
• A body of rules and principles facilitating and regulating human interaction.
this does not happen,
o Rules that govern human behaviour. there becomes a
legitimacy crisis, the law
• The Constitution of the Republic of South Africa 1996 has created various
loses its authority and
institutions that create, apply, interpret and enforce the law. The institutions are people no longer respect
namely: or abide by it because it
no longer reflects the
o The Legislative Authority: makes laws. values of the society.
o The Judicial Authority: applies and interprets the law.
o The Executive Authority: resolves legal disputes.
, • Enforcement comes in when sanctions are introduced whenever someone does
not comply with the legal rules that have been put into place.
• Sanctions being a form of punishment for non-compliance.
o Depending on the scope of non-compliance, sanctions vary from either
being fines or imprisonment.
NB: The content of the law of a particular country depends on the history of it. The legal
development of laws varies country by country and it has an impact on the character
of the law and the legal system.
• The general characteristics of law manifest through the various sources of law
that a particular country has. In South Africa we have:
o The Constitution, Legislation and Case Law.
• If we are to further break down the sources of South African law, we will find:
o African customary law: laws of the First Nation peoples of Africa.
o Common law: inherited from South Africa’s colonial heritage.
o Customs: practices that developed as law due to long time usage.
o International law: drafted across and/or by different states.
Main Objectives of a Legal System
• Individuals are made aware of the rights they have, and they can access the legal Nota Bene
Section 15 of the
system.
Constitution of the
• Legal disputes and problems are to be dealt with in an efficient manner. Republic of South Africa
1996 protects the right
• The legal system is consistent in the way it resolves problems. to freedom of religion.
• All people are given a fair hearing and have the right to appeal a court decision
with a higher authority.
• Disputes are heard by the relevant bodies in that they are prepared to process
each case with due consideration and formality.
Additional Fact
• Trials are conducted according to established and recognized procedures.
Church law is known as
• Interactions between members of society and individuals and the state are canon law.
harmonious in nature.
Law & Morality
Paternalism
• The law is a set of norms that distinguish good from bad, it is a rule that regulates The state acting on the
better interests of
human conduct.
children since they do
, • The normative systems that influence our lives and determine our conduct are: not have the capability
to understand the
o Religion
consequences of their
o Individual Morality actions or make
o Community Mores informed choices.
Religion
Religion determines the relationship between an individual and a Supreme being.
• The common ultimate form of sanction for non-compliance is some form of hell.
• Religion can lead to the development of extreme views.
o Secular approach is that religion and law should be mutually exclusive. It
is not the job of the state to enforce religion, but everyone should be
granted the freedom of religion.
o Another approach: religion and law should have the same content.
• Critiques of the abovementioned approaches:
o There are similarities between law and religion with the Western legal
tradition being largely influenced by Christian beliefs.
o Sometimes the content of religious and legal rules may be the same.
Examples being offences such as murder and theft are prohibited by
many religions.
Individual Morality
Morality is every individual’s self-image
• This concerns a private conflict between an individual and her conscience.
• The law does not always enforce ideals associated with individual morality and
there can sometimes be clashes the law and an individual’s morals.
• The sanction for non-compliance is one’s own conscience.
Community Mores
The norms of the community as a whole: collective morals.
• Sanction for non-compliance is varying degrees of disapproval by other members
of society. Unjust Laws
• Sometimes community mores and legal rules coincide, prohibition of murder and Although the many
oppressive acts
wrong damage warranting compensation. perpetuated by the
• Harm is used as a decisive criterion to determine whether socially deviant Apartheid government
towards the black
