Introduction to law
1.0 What is the law?
The law is the set of norms or standards or rules governing or regulating
human behaviour or conduct in a particular setting; it is binding on a
whole community; organs of the state have the power to enforce the law.
Behaviour or conduct contrary to the law may be prosecuted and the
offender punished or required to compensate the injured party.
South African law can be divided into two divisions: public law - which
deals with the relationship between the state (and its organs) and the
individual(s) and private law – which deals with the relationship between
the individual(s) and other individuals.
South African law can also be divided into another two divisions: formal
(or procedural) law - which deals with the procedures that must be
followed in legal proceedings and substantive (or material) law - which
determines the content and the meaning of the different legal rules.
Formal law is that part of the law which regulates the enforcement of
substantive law.
A normative system is a system, other than the law, that governs human
behaviour. Religion, individual morality and community mores are all
normative systems.
Religions have a code (a set of rules) in accordance with which the people
who practise those particular religions are supposed to live which may be
based on the religion’s holy book (Bible, Tora, Quran etc.).
Religions have sanctions for those who disobey the norms such as
excommunication, threat of burning in hell.
Individual morality deals with the norms or standards of behaviour that
each person sets for himself e.g. being honest, not drinking too much, not
telling lies. If you disobey these rules, you cause yourself inner conflict:
your conscience bothers you.
Community mores are the norms of a whole community or group within
that community.
Since different types of norms may overlap, it should be clear that they
cannot always be divided into these separate categories.
Laws can be just or unjust. The fact that a rule becomes a legal rule is not
enough to ensure that justice will be done. A legal rule is therefore not
necessarily ’’just''.
,No universally accepted definition of ‘justice’ exists. However, some have
argued that justice is ‘equality before the law’.
If the formal law meets certain basic requirements and is always applied
in exactly the same way, we say that formal ‘justice’ has been achieved.
Formal law has to comply with the following in order to achieve formal
‘justice’:
1. There must be explicit rules laid down to show how people must be
treated in specific cases;
2. The rules must apply generally - the rules must apply to all people in
the group in the same circumstances;
3. The rules must be applied impartially by a legal institution - the
judge may not be biased, he or she may not apply the rules
unequally.
In certain cases, there can be formal or procedural justice without there
being necessarily substantive or 'real justice'.
Substantive justice is concerned with the content of the rule, not the way
in which it is applied.
Substantive law can be applied correctly in accordance with the rules of
formal law, despite the fact that the rules of substantive law are unjust.
Thus, formal justice can be achieved, but not substantive justice.
, 2.0 The law and rights
Rights are about how people relate to one another.
If you have a right to something, you are a holder of that right. Therefore,
there is a legal relationship between you (a legal subject and the holder of
the right) and what you have the right to (the object of the right or legal
object). Other people (they are other legal subjects) have to respect your
right.
Legal subjects have rights against one another in respect of the objects of
their rights.
A legal subject is anyone who is subject to (or under the control of) the
norms of the law and who may also be the bearer (holder) of rights and
duties.
When dealing with a right, we are dealing with the relationship between
you and the object of the right, and between you and other legal subjects
who have to respect your right.
Therefore, every right concerns a relationship made up of two parts: a
relationship between a legal subject and the object of the right and a
relationship between the legal subject who is the holder of the right, and
other legal subjects.
In modern law, everyone is a legal subject. In ancient Roman times,
however, a slave could have no rights. A slave was not a legal subject, but
was the object of a right.
The beginnings of South African law can be traced back to the law of the
ancient Roman Empire which lasted from the first to the sixth century
after the birth of Christ (AD).
The object of a right (a legal object) may be anything that is of economic
value to people. Something may have economic value because:
a) it costs a lot of money;
b) it is something which is scarce and therefore difficult to get or
c) it is useful and many people wish to have it.
It may be of value only to a particular person (e.g., that person's good
name) or it may be of value within a particular circle of people (e.g., a
painting of a family).
Rights can be grouped into four groups based the object of the right:
1. Real rights (where the object of the right is a tangible thing);
2. Personality rights (where the object may be personality property);
3. Intellectual or immaterial property rights (object: a intangible
creation of the human mind);
4. Personal rights (object: performance).
1.0 What is the law?
The law is the set of norms or standards or rules governing or regulating
human behaviour or conduct in a particular setting; it is binding on a
whole community; organs of the state have the power to enforce the law.
Behaviour or conduct contrary to the law may be prosecuted and the
offender punished or required to compensate the injured party.
South African law can be divided into two divisions: public law - which
deals with the relationship between the state (and its organs) and the
individual(s) and private law – which deals with the relationship between
the individual(s) and other individuals.
South African law can also be divided into another two divisions: formal
(or procedural) law - which deals with the procedures that must be
followed in legal proceedings and substantive (or material) law - which
determines the content and the meaning of the different legal rules.
Formal law is that part of the law which regulates the enforcement of
substantive law.
A normative system is a system, other than the law, that governs human
behaviour. Religion, individual morality and community mores are all
normative systems.
Religions have a code (a set of rules) in accordance with which the people
who practise those particular religions are supposed to live which may be
based on the religion’s holy book (Bible, Tora, Quran etc.).
Religions have sanctions for those who disobey the norms such as
excommunication, threat of burning in hell.
Individual morality deals with the norms or standards of behaviour that
each person sets for himself e.g. being honest, not drinking too much, not
telling lies. If you disobey these rules, you cause yourself inner conflict:
your conscience bothers you.
Community mores are the norms of a whole community or group within
that community.
Since different types of norms may overlap, it should be clear that they
cannot always be divided into these separate categories.
Laws can be just or unjust. The fact that a rule becomes a legal rule is not
enough to ensure that justice will be done. A legal rule is therefore not
necessarily ’’just''.
,No universally accepted definition of ‘justice’ exists. However, some have
argued that justice is ‘equality before the law’.
If the formal law meets certain basic requirements and is always applied
in exactly the same way, we say that formal ‘justice’ has been achieved.
Formal law has to comply with the following in order to achieve formal
‘justice’:
1. There must be explicit rules laid down to show how people must be
treated in specific cases;
2. The rules must apply generally - the rules must apply to all people in
the group in the same circumstances;
3. The rules must be applied impartially by a legal institution - the
judge may not be biased, he or she may not apply the rules
unequally.
In certain cases, there can be formal or procedural justice without there
being necessarily substantive or 'real justice'.
Substantive justice is concerned with the content of the rule, not the way
in which it is applied.
Substantive law can be applied correctly in accordance with the rules of
formal law, despite the fact that the rules of substantive law are unjust.
Thus, formal justice can be achieved, but not substantive justice.
, 2.0 The law and rights
Rights are about how people relate to one another.
If you have a right to something, you are a holder of that right. Therefore,
there is a legal relationship between you (a legal subject and the holder of
the right) and what you have the right to (the object of the right or legal
object). Other people (they are other legal subjects) have to respect your
right.
Legal subjects have rights against one another in respect of the objects of
their rights.
A legal subject is anyone who is subject to (or under the control of) the
norms of the law and who may also be the bearer (holder) of rights and
duties.
When dealing with a right, we are dealing with the relationship between
you and the object of the right, and between you and other legal subjects
who have to respect your right.
Therefore, every right concerns a relationship made up of two parts: a
relationship between a legal subject and the object of the right and a
relationship between the legal subject who is the holder of the right, and
other legal subjects.
In modern law, everyone is a legal subject. In ancient Roman times,
however, a slave could have no rights. A slave was not a legal subject, but
was the object of a right.
The beginnings of South African law can be traced back to the law of the
ancient Roman Empire which lasted from the first to the sixth century
after the birth of Christ (AD).
The object of a right (a legal object) may be anything that is of economic
value to people. Something may have economic value because:
a) it costs a lot of money;
b) it is something which is scarce and therefore difficult to get or
c) it is useful and many people wish to have it.
It may be of value only to a particular person (e.g., that person's good
name) or it may be of value within a particular circle of people (e.g., a
painting of a family).
Rights can be grouped into four groups based the object of the right:
1. Real rights (where the object of the right is a tangible thing);
2. Personality rights (where the object may be personality property);
3. Intellectual or immaterial property rights (object: a intangible
creation of the human mind);
4. Personal rights (object: performance).
