ILW1036 STUDY NOTES
Q: What is “the law”?
A: The law is all encompassing; it entails many facets of everyday life. It governs our behaviour in the
form of legal norms. It is to be obeyed at all times by all members of society, if one fails to comply with
the law, punishment is administered, be it as a jail sentence or remunerations for damages caused. The
law is made, governed and enforced by state organs.
The law is divided into two sections namely, private law and public law.
Private law, deals with the relationship between individual citizens whereas public law deals with the
relationship between the state and the individual.
The divisions of the law can also be interpreted as Formal (Procedural) law and Substantive law. The
procedures that must be followed in legal proceedings are ruled by formal law. Substantive law is that
which determines the content and the meaning of different legal rules. The different normative systems
and the law have strong links to each other. For example, religion and law overlap in many aspects as
the Western legal tradition is strongly influenced by canon law. Discrepancies however, do appear as
some religious boundaries cannot be enforced by law, example adultery. Personal morality is not
enforced by the law unless it coincided with legal principles. This is due to the fact that personal morals
are based on the character of the individual. Community mores however, are the collective morals of
the members that make up the community. As with personal ethics, these norms are only enforceable
when it coincides with the legal norms. As communities differ, the accepted behaviour in each
community differs according to the residents.
Justice is equality before the law. In this respect, some arguments can be made that the law is unjust or
just. In regard to Formal law, there are basic requirements that formal law must comply with to achieve
justice. These requirements are that the rules must be explicitly laid down to show how people must be
treated in specific cases. These rules must apply to all which fall under the same circumstances and
this rule must be implied impartially by an unbiased judge.
Substantive justice however, remedies some cases in which a party may feel that the result was unjust.
Substantive justice concerns the content of the rule and not the way on which it is applied. In this way,
formal law is that part of the law which regulates the enforcements of substantive law.
Law is also a system of rights. Every rights involves a relationship that is made up of two parts, the
relationship between a legal subject and the legal object, and the relationship between the legal subject
which is the holder of the right and other legal subjects (they must respect your rights).
1
, A legal subject is anyone who is subject to the legal norms and who also may be the bearer of rights
and duties. A legal object is an object to which economical value may be attached, be it a car or a
person’s good name.
There are four classes of rights, namely real rights, personality rights, intellectual/immaterial property
rights and personal rights.
a) Real rights are rights to physical, material things, eg a car. Real rights are called rights of
ownership, rights of pledge or rights of servitude etc. Rights of ownership give the owner the
right of Ius utendi, fruendi and abutendi. A right of pledge is when an object is used as
collateral (mancipatio cum fiducia, pignus and hypothec), in this respect, the right to the
pledged thing is limited as it cannot be used or enjoyed until the debt is paid. Rights of
servitude are for example, servitudes of iter give the right to walk over the land of another.
b) Personality rights are the rights that each one of us has to parts of our personality. Eg the right
to physical integrity, the right to good name and reputation and the right to honour. (actio
iniuriarum)
c) Intellectual property rights relate to the creations of the human mind. Copyright and Patents
protect this right.
d) Personal rights is the right to performance. It may be a claim, delivery, payment or services.
Roman-Dutch law and its origins:
a) The Roman era spanned across 753BC-476AD. The height of the Roman Empire was during
the second half and first two centuries AD. It was during this period that Roman culture, law
and development reached its peak. The Roman law administered in this period is known as
classical Roman law. However, in the 4 th century the Roman Empire split into the Western
Roman Empire where Rome was the capital and the Eastern Roman Empire where
Constantinople was the capital. It was at this point that the decline of the Roman Empire
began. Gradually, the Germanic Tribes began to infiltrate the Western Roman Empire and in
476AD when Rome was overthrown, a Germanic ruler took to the throne. With this he brought
over Germanic laws and Roman law, although greatly weakened, it was still practiced through
Canon Law. The reception of Roman law in Europe was one of the reasons that Roman law
remained alive. In the Eastern Roman Empire however, Roman law survived successfully, and
resulted in the Emperor Justinian creating the Corpus Iuris Civilus. This is a collection of
Roman law and aided the reception of Roman law in other countries. A renewed interest in
Roman law developed in the 12th century and was studied at the medieval universities. Thus,
these emerging jurists carried this knowledge over to their respective countries and infiltrated
the legal systems. When Roman law was received in Netherlands, Roman-Dutch law was
created. Today, we still make reference to some great Roman-Dutch jurists such as de Groot
and Voet.
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Q: What is “the law”?
A: The law is all encompassing; it entails many facets of everyday life. It governs our behaviour in the
form of legal norms. It is to be obeyed at all times by all members of society, if one fails to comply with
the law, punishment is administered, be it as a jail sentence or remunerations for damages caused. The
law is made, governed and enforced by state organs.
The law is divided into two sections namely, private law and public law.
Private law, deals with the relationship between individual citizens whereas public law deals with the
relationship between the state and the individual.
The divisions of the law can also be interpreted as Formal (Procedural) law and Substantive law. The
procedures that must be followed in legal proceedings are ruled by formal law. Substantive law is that
which determines the content and the meaning of different legal rules. The different normative systems
and the law have strong links to each other. For example, religion and law overlap in many aspects as
the Western legal tradition is strongly influenced by canon law. Discrepancies however, do appear as
some religious boundaries cannot be enforced by law, example adultery. Personal morality is not
enforced by the law unless it coincided with legal principles. This is due to the fact that personal morals
are based on the character of the individual. Community mores however, are the collective morals of
the members that make up the community. As with personal ethics, these norms are only enforceable
when it coincides with the legal norms. As communities differ, the accepted behaviour in each
community differs according to the residents.
Justice is equality before the law. In this respect, some arguments can be made that the law is unjust or
just. In regard to Formal law, there are basic requirements that formal law must comply with to achieve
justice. These requirements are that the rules must be explicitly laid down to show how people must be
treated in specific cases. These rules must apply to all which fall under the same circumstances and
this rule must be implied impartially by an unbiased judge.
Substantive justice however, remedies some cases in which a party may feel that the result was unjust.
Substantive justice concerns the content of the rule and not the way on which it is applied. In this way,
formal law is that part of the law which regulates the enforcements of substantive law.
Law is also a system of rights. Every rights involves a relationship that is made up of two parts, the
relationship between a legal subject and the legal object, and the relationship between the legal subject
which is the holder of the right and other legal subjects (they must respect your rights).
1
, A legal subject is anyone who is subject to the legal norms and who also may be the bearer of rights
and duties. A legal object is an object to which economical value may be attached, be it a car or a
person’s good name.
There are four classes of rights, namely real rights, personality rights, intellectual/immaterial property
rights and personal rights.
a) Real rights are rights to physical, material things, eg a car. Real rights are called rights of
ownership, rights of pledge or rights of servitude etc. Rights of ownership give the owner the
right of Ius utendi, fruendi and abutendi. A right of pledge is when an object is used as
collateral (mancipatio cum fiducia, pignus and hypothec), in this respect, the right to the
pledged thing is limited as it cannot be used or enjoyed until the debt is paid. Rights of
servitude are for example, servitudes of iter give the right to walk over the land of another.
b) Personality rights are the rights that each one of us has to parts of our personality. Eg the right
to physical integrity, the right to good name and reputation and the right to honour. (actio
iniuriarum)
c) Intellectual property rights relate to the creations of the human mind. Copyright and Patents
protect this right.
d) Personal rights is the right to performance. It may be a claim, delivery, payment or services.
Roman-Dutch law and its origins:
a) The Roman era spanned across 753BC-476AD. The height of the Roman Empire was during
the second half and first two centuries AD. It was during this period that Roman culture, law
and development reached its peak. The Roman law administered in this period is known as
classical Roman law. However, in the 4 th century the Roman Empire split into the Western
Roman Empire where Rome was the capital and the Eastern Roman Empire where
Constantinople was the capital. It was at this point that the decline of the Roman Empire
began. Gradually, the Germanic Tribes began to infiltrate the Western Roman Empire and in
476AD when Rome was overthrown, a Germanic ruler took to the throne. With this he brought
over Germanic laws and Roman law, although greatly weakened, it was still practiced through
Canon Law. The reception of Roman law in Europe was one of the reasons that Roman law
remained alive. In the Eastern Roman Empire however, Roman law survived successfully, and
resulted in the Emperor Justinian creating the Corpus Iuris Civilus. This is a collection of
Roman law and aided the reception of Roman law in other countries. A renewed interest in
Roman law developed in the 12th century and was studied at the medieval universities. Thus,
these emerging jurists carried this knowledge over to their respective countries and infiltrated
the legal systems. When Roman law was received in Netherlands, Roman-Dutch law was
created. Today, we still make reference to some great Roman-Dutch jurists such as de Groot
and Voet.
2
