Functions of Law in Society

Function of Law

• Governs human behavior and interactions
• Rewards desirable behavior and punishes undesirable behavior to encourage compliance and prevent recurrence of harmful acts
• Holds individuals accountable for the harm or consequences of their actions
• Resolves disputes and conflicts through an established judicial system

Social Contract

• Individuals agree to relinquish some of their unlimited personal freedoms in exchange for the benefits of peaceful coexistence within an organized society
• The government or authority establishes and enforces the rules of this social contract based on the consent of the people
• Fixed and universal rules are necessary to resolve conflicts impartially and maintain social order

Origin of Law

• Law emerges as societies form and transition from a hypothetical "state of nature" without rules
• The need for order and predictability in human interactions led to the development of a social contract and the establishment of a system of laws
• Law facilitates the transition from a chaotic "state of nature" to a more organized and civilized society

Definition of Law

• Law is the comprehensive body of rules, principles, and standards that govern human conduct and are recognized as binding by the society or state
• Law is prescriptive, outlining acceptable and unacceptable behaviors, and provides for the punishment of unacceptable behavior and the rewards or incentives for acceptable behavior through the authority of the state or governing body

Key Concepts

• Truth and Reconciliation Commission (TRC): A commission established to uncover the truth about human rights violations and abuses, and to provide a platform for both victims and perpetrators to share their experiences in order to facilitate reconciliation
• Bargaining power: The relative power of parties in a negotiation or conflict situation to exert influence over each other and shape the outcomes
• Parliamentary sovereignty: The principle that the legislature, as the supreme law-making body, has ultimate authority over other government institutions and can enact any law it chooses
• Legitimacy: The acceptance of an authority, often a governing law or a regime, as rightful and justified by the people
• Constituency: A body of voters in a specified area who elect a representative to a legislative body
• Disfranchised: The removal of the rights of citizenship, particularly the right to vote, from a group of people
• Apartheid: A policy or system of segregation or discrimination on the basis of race, particularly enforced in South Africa from 1948 to 1994

Sources of Law

• Legislation/statutes/Acts of parliament: Laws enacted by the South African Parliament
• Court decisions/case law/court cases: Binding precedents set by the country's courts
• Common law: Law derived from judicial decisions and ancient customs rather than statutes
• Custom: Rules of conduct developed from the habits and traditions of a community, recognized as legally binding
• African indigenous law: Legal systems and norms based on the traditions and customs of various African communities
• Legal encyclopedias: Comprehensive reference works on legal topics
• Textbooks: Books written by legal scholars and experts

Institutions and Roles

• Auditor-General (AG): Audits and reports on the financial management of government institutions and state-owned enterprises
• Electoral Commission of South Africa (IEC): Manages and oversees the conduct of free and fair elections

Constitutional Values

• Promoting substantive equality, social justice, and the realization of fundamental human rights
• Addressing the legacy of apartheid and other historical injustices
• Encouraging active citizen participation in the democratic process and the implementation of constitutional values
• Transforming institutions and power structures to align with the Constitution's vision of a just and equitable society

Human Rights

• Civil and political rights that protect individuals from state interference, such as the right to life, freedom of expression, and the right to a fair trial
• Economic, social, and cultural rights that require state action to ensure their fulfillment, such as the right to education, the right to health care, and the right to work
• Collective rights that address broader societal issues, such as the right to a healthy environment, the right to development, and the right to self-determination of peoples

Key Terms

• Amnesty: A government pardon for political offenses committed during a particular period, often as part of a reconciliation process
• Rule of law: The principle that all individuals, institutions, and entities, including the government, are accountable to laws that are fairly applied and enforced
• Transitional justice: Measures implemented by countries to address the legacies of massive human rights abuses, such as truth-telling, reparations, and institutional reforms
• Human rights violations: Breaches of the fundamental rights and freedoms to which all humans are entitled
• Ubuntu: A Nguni Bantu philosophy that emphasizes the interconnectedness of all people and the belief that "I am because we are"