Introduction to Law
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Questions and Answers

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?

Interdependence and communality among community members, recognizing each person's dignity and worth.

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?

<p>Lawyers have incorporated Ubuntu when crafting arguments, and judges have infused its core values when interpreting laws, creating new remedies and procedures.</p> Signup and view all the answers

What was a significant impact of Ubuntu in South Africa's history?

<p>Ubuntu played a key role in the creation of the Truth and Reconciliation Commission in 1996.</p> Signup and view all the answers

What are some key characteristics of law, according to Kleyn & Viljoen?

<p>Law includes rules and principles, provides certainty among citizens, and is applied by the State.</p> Signup and view all the answers

Who is responsible for the law, according to the text?

<p>The Government is responsible for the law.</p> Signup and view all the answers

What consequence might you face if you break the law, such as speeding?

<p>You might receive a traffic fine, issued by the State.</p> Signup and view all the answers

What is the concept of a SOCIAL CONTRACT in the western approach to law?

<p>A social contract is an agreement between individuals to submit themselves to the authority of the State, which makes and enforces rules in cases of conflict.</p> Signup and view all the answers

According to John Locke, what is the basis of his idea of a social contract?

<p>Reason.</p> Signup and view all the answers

What is the main difference between John Locke's and John Rawls' ideas of a social contract?

<p>John Locke's idea is based on reason, while John Rawls' idea is based on ignorance.</p> Signup and view all the answers

What is the role of the State in the social contract according to John Locke?

<p>The State makes and enforces rules in cases of conflict.</p> Signup and view all the answers

What is the significance of the 'original position' in John Rawls' idea of a social contract?

<p>It is a position where everyone is ignorant of their specific position in society.</p> Signup and view all the answers

What is the outcome of the social contract according to John Rawls?

<p>A social contract that is most just to all in society.</p> Signup and view all the answers

What is the significance of the 'rule of law' in the western approach to law?

<p>No one is above the law, and government makes rules that citizens must abide by.</p> Signup and view all the answers

What is the relationship between law and other norms in the western approach?

<p>Law is influenced by religious, ethical, and moral norms.</p> Signup and view all the answers

In which legal philosophy is there no separation between religion and state?

<p>African legal philosophy and Islamic States</p> Signup and view all the answers

What is a similarity between law and religion in the Western legal tradition?

<p>The content of religious and legal rules are often the same.</p> Signup and view all the answers

How are religious and legal rules often studied?

<p>By interpreting religious texts.</p> Signup and view all the answers

What is an example of a religious sin that is not a crime in RSA?

<p>Adultery</p> Signup and view all the answers

What was the outcome of the Amod v Multilateral Motor Vehicle Accidents Fund case in 1999?

<p>Recognition of Muslim marriages for legal protection.</p> Signup and view all the answers

What was the Christian Education South Africa v Minister of Education case about in 2004?

<p>Challenge to the prohibition of corporal punishment in schools on the grounds of limiting constitutional right to freedom of religion.</p> Signup and view all the answers

What right did the Christian group claim was limited by the prohibition of corporal punishment in schools?

<p>Freedom of religion</p> Signup and view all the answers

What was the significance of the Amod v Multilateral Motor Vehicle Accidents Fund case in terms of legal protection?

<p>Recognition of Muslim marriages for claiming loss of maintenance.</p> Signup and view all the answers

What is the main distinction between morality and law?

<p>Morality and law are distinctly separated from each other, with law being set down in statutes, rules, and court decisions.</p> Signup and view all the answers

What is the characteristic feature of natural law?

<p>Containing a moral code or dimension.</p> Signup and view all the answers

What is the 'stare decisis' principle?

<p>The principle that a decision of a court should be followed by a later court where the facts are substantially the same.</p> Signup and view all the answers

What does legal certainty imply?

<p>That the law is predictable, consistently applied, and has a fixed and certain content.</p> Signup and view all the answers

Why does language create a challenge for legal certainty?

<p>Because words do not have fixed and simple meanings, and interpretation can differ from person to person.</p> Signup and view all the answers

Why must law adapt to changing circumstances?

<p>To remain effective, law must adapt to changing values, technological advances, and community values.</p> Signup and view all the answers

What is the significance of 'higher norms' in natural law?

<p>They are universal norms that ought to be applicable, even if positive law is in conflict with them.</p> Signup and view all the answers

What undermines the ideal of legal certainty?

<p>Factors such as language, changing values, and judicial discretion.</p> Signup and view all the answers

Why did Prince not qualify for admission as an attorney?

<p>Because he was deemed not to be a fit and proper person due to his use of cannabis.</p> Signup and view all the answers

What was the basis of Prince's case against the government?

<p>An infringement of his right to privacy.</p> Signup and view all the answers

What was the outcome of the Constitutional Court's ruling on Prince's case?

<p>The legislation was declared invalid, allowing for the lawful use of cannabis under certain conditions.</p> Signup and view all the answers

What is the term used to describe the norms of a whole community or group?

<p>Community mores.</p> Signup and view all the answers

What may be the origin of some community mores?

<p>Religious convictions.</p> Signup and view all the answers

Why was Prince's freedom of religion deemed infringed but justified?

<p>Due to the difficulties associated with policing the use of cannabis.</p> Signup and view all the answers

What is the comparison made in the Constitutional Court's ruling regarding the harmful effects of cannabis?

<p>Using cannabis is probably not as harmful as consuming alcohol.</p> Signup and view all the answers

What is the significance of the case Minister of Justice and Constitutional Development v Prince (Doctors for Life International Inc Amicus Curiae)?

<p>It illustrates the potential conflict or clash between law and an individual's moral, religious, and cultural views and the values of the society.</p> Signup and view all the answers

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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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.

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