Podcast
Questions and Answers
What are the two essential elements of a Western understanding of a social contract?
What are the two essential elements of a Western understanding of a social contract?
Separated individuals in the original position and an imaginary/fictitious agreement between those individuals.
What does the African perspective emphasize in terms of human relationships?
What does the African perspective emphasize in terms of human relationships?
Interdependence and communality among community members, recognizing each person's dignity and worth.
What is the concept of Ubuntu, and how is it summarized?
What is the concept of Ubuntu, and how is it summarized?
Ubuntu is the idea that 'a person is a person because of other persons - I am because you are', emphasizing the interdependence of individuals.
How has Ubuntu influenced legal proceedings in South Africa, according to Sipho Nkosi?
How has Ubuntu influenced legal proceedings in South Africa, according to Sipho Nkosi?
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What was a significant impact of Ubuntu in South Africa's history?
What was a significant impact of Ubuntu in South Africa's history?
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What are some key characteristics of law, according to Kleyn & Viljoen?
What are some key characteristics of law, according to Kleyn & Viljoen?
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Who is responsible for the law, according to the text?
Who is responsible for the law, according to the text?
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What consequence might you face if you break the law, such as speeding?
What consequence might you face if you break the law, such as speeding?
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What is the concept of a SOCIAL CONTRACT in the western approach to law?
What is the concept of a SOCIAL CONTRACT in the western approach to law?
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According to John Locke, what is the basis of his idea of a social contract?
According to John Locke, what is the basis of his idea of a social contract?
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What is the main difference between John Locke's and John Rawls' ideas of a social contract?
What is the main difference between John Locke's and John Rawls' ideas of a social contract?
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What is the role of the State in the social contract according to John Locke?
What is the role of the State in the social contract according to John Locke?
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What is the significance of the 'original position' in John Rawls' idea of a social contract?
What is the significance of the 'original position' in John Rawls' idea of a social contract?
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What is the outcome of the social contract according to John Rawls?
What is the outcome of the social contract according to John Rawls?
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What is the significance of the 'rule of law' in the western approach to law?
What is the significance of the 'rule of law' in the western approach to law?
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What is the relationship between law and other norms in the western approach?
What is the relationship between law and other norms in the western approach?
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In which legal philosophy is there no separation between religion and state?
In which legal philosophy is there no separation between religion and state?
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What is a similarity between law and religion in the Western legal tradition?
What is a similarity between law and religion in the Western legal tradition?
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How are religious and legal rules often studied?
How are religious and legal rules often studied?
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What is an example of a religious sin that is not a crime in RSA?
What is an example of a religious sin that is not a crime in RSA?
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What was the outcome of the Amod v Multilateral Motor Vehicle Accidents Fund case in 1999?
What was the outcome of the Amod v Multilateral Motor Vehicle Accidents Fund case in 1999?
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What was the Christian Education South Africa v Minister of Education case about in 2004?
What was the Christian Education South Africa v Minister of Education case about in 2004?
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What right did the Christian group claim was limited by the prohibition of corporal punishment in schools?
What right did the Christian group claim was limited by the prohibition of corporal punishment in schools?
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What was the significance of the Amod v Multilateral Motor Vehicle Accidents Fund case in terms of legal protection?
What was the significance of the Amod v Multilateral Motor Vehicle Accidents Fund case in terms of legal protection?
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What is the main distinction between morality and law?
What is the main distinction between morality and law?
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What is the characteristic feature of natural law?
What is the characteristic feature of natural law?
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What is the 'stare decisis' principle?
What is the 'stare decisis' principle?
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What does legal certainty imply?
What does legal certainty imply?
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Why does language create a challenge for legal certainty?
Why does language create a challenge for legal certainty?
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Why must law adapt to changing circumstances?
Why must law adapt to changing circumstances?
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What is the significance of 'higher norms' in natural law?
What is the significance of 'higher norms' in natural law?
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What undermines the ideal of legal certainty?
What undermines the ideal of legal certainty?
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Why did Prince not qualify for admission as an attorney?
Why did Prince not qualify for admission as an attorney?
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What was the basis of Prince's case against the government?
What was the basis of Prince's case against the government?
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What was the outcome of the Constitutional Court's ruling on Prince's case?
What was the outcome of the Constitutional Court's ruling on Prince's case?
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What is the term used to describe the norms of a whole community or group?
What is the term used to describe the norms of a whole community or group?
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What may be the origin of some community mores?
What may be the origin of some community mores?
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Why was Prince's freedom of religion deemed infringed but justified?
Why was Prince's freedom of religion deemed infringed but justified?
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What is the comparison made in the Constitutional Court's ruling regarding the harmful effects of cannabis?
What is the comparison made in the Constitutional Court's ruling regarding the harmful effects of cannabis?
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What is the significance of the case Minister of Justice and Constitutional Development v Prince (Doctors for Life International Inc Amicus Curiae)?
What is the significance of the case Minister of Justice and Constitutional Development v Prince (Doctors for Life International Inc Amicus Curiae)?
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Study Notes
The Notion of Law
- Rule of law: government makes rules and citizens must abide by them; no one is above the law
- Social contract: individuals enter into a contract with the state, submitting to its authority in exchange for protection and stability
Western Approach
- John Locke's idea of a social contract is based on reason, where individuals enter into a contract to ensure stability and protection
- John Rawls' idea of a social contract is based on ignorance, where individuals in an original position agree on principles of justice without knowledge of their social position
African Perspective
- Human beings are born into a community with ethical relations and obligations
- Ubuntu: a person is a person because of other persons; emphasizing communal relations and interdependence
- Judge Langa: ubuntu recognizes the status of a person as a human being, entitled to unconditional respect, dignity, and value
What is Law?
- Characteristics of law: rules and principles, provides certainty among citizens, and is applied by the state
- Example: traffic laws and fines
Relationship between Law and Other Norms
- Similarities between law and religion: content of religious and legal rules can be the same; both are studied by interpreting texts
- Differences between law and religion: not all religious rules are laws, and not all laws are religious rules
- Case law:
- Amod v Multilateral Motor Vehicle Accidents Fund: recognized Muslim marriages for legal protection
- Christian Education South Africa v Minister of Education: freedom of religion vs. prohibition of corporal punishment in schools
- Prince cases: freedom of religion, privacy, and the use of cannabis
Community Mores
- Norms of a whole community or group, often influenced by religious convictions
- Different communities may have different mores
Natural Law
- Laws in harmony with the laws of nature and human reason
- Contains a moral code or dimension, with higher norms that should apply universally
Law and Certainty
- Certainty of the law is an invaluable characteristic
- Stare decisis principle: a decision of a court should be followed by a later court where the facts are substantially the same
- Challenges to legal certainty: language, changing values, and judicial discretion
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Description
Explore the concept of law, including its importance and basics. Based on chapters from Beginner's Guide for Law Students and Introduction to Law and Legal Skills in South Africa.