Law: Concepts and Normative Rules

• The study notes cover the introduction to law
• The recommended reading material is the “Legal Principles of Contracts and Commercial Law” by M.A. Fouché; 8th or 9th Edition, chapters 1, 2, and 3

Concept of Law

• "Law," in a broad sense, refers to a set of rules
• Law includes descriptive and prescriptive laws/rules

Descriptive Laws/Rules (Rules of Nature)

• Describe how objects behave in nature
• Discovered through the scientific method or reason (logic)
• Example: Throwing something up, it comes down

Normative Rules

• Prescribe how persons should behave in private or in public
• Can be revealed by a Deity (God) or constructed by autonomous human beings
• This study focuses on normative rules
• Questions to ask include: Where do the rules come from? Who do the rules apply to: Who enforces the rules? What is the sanction for breaking the rules?
• All normative rules have a source in rational, volitional, moral personal authority
• Authority is either a Deity or autonomous human beings
• There is no third option
• Can be devided into ethics and legal rules

Division of Normative Rules

• Ethics: A branch of philosophy dealing with moral values, which can be further divided into individual and group morals
• Legal rules

Individual Morals

• Prescribed/revealed by God or constructed by the individual themselves
• Enforced by the individual's conscience
• Sanctioned with feelings of guilt/remorse
• Example: "It is morally evil to lie, steal, or murder, and to discriminate on the basis of race"

Group Morals

• Prescribed/revealed by God or constructed by the autonomous members of a group
• Apply to group members
• Enforced by the group acting collectively
• Transgression is sanctioned with rejection from the group
• Example: "It is morally evil to lie, steal or murder, and to discriminate on the basis of race"
• The law aims to prohibit evil and promote good

Foundational Values in South Africa

• Enshrined in the Constitution; expressed in the Bill of Rights
• Values include human dignity, equality before the law, and freedoms
• Freedom of religion/belief entails the right to hold, profess, and practice religion/belief

Legal Rules

• Prescribed by the state
• Apply to people within the jurisdiction of the Republic of South Africa
• Enforced by the state
• Transgression is sanctioned with civil or criminal penalties
• Example: Common law crimes (perjury, theft, murder)
• Individuals can create legally enforceable rules through contracts
• Simply referred to as "the law" and determine the rights, duties, and powers of persons in society

Sources of Law

• Seven sources include common law, legislation, judicial precedent, customary law, foreign law, international law, and textbooks
• Sources can be "authoritative" or "persuasive"
• Authoritative sources must be followed by courts, while persuasive sources may be followed

Authoritative Sources

• Common law (old authorities)
• Legislation (statute law)
• Judicial precedent (judgments of the courts)
  • Jurisdiction is the authority to adjudicate a matter
  • Example questions might include what constitutes consensus for civil cases or intent for criminal cases
  • Ratio decidendi (reason in law for the decision) - key for understanding precedents
  • Orbiter dictum (remark in passing), not binding
  • Stare decisis, lower courts must stand by higher court's decisions
• Customary law (customs)
  • Must be reasonable, exist for a long time, be recognized by the community, and not contradict existing law
• Binding international law

Persuasive Sources

• Foreign law (e.g., Zimbabwe or Canada)
• Textbooks
• Non-binding international law

Division of the Law

• Legal rules study begins with law of contract, fitting into a larger legal system
• Traditionally divided into international and national Law

International Law

• May be divided between Public and Private
• Public International Law regulates the relationship between different states (e.g., South Africa and Botswana)
• Includes legal rules for regulating the boundaries of states, the territorial waters, and the airspace of states
• Private International Law regulates the relationship between citizens of different countries

National Law

• Refers to the law of a specific country (e.g., South Africa)
• Can be divided into Substantive and Procedural law

Substantive Law

• Defines the rights and duties of the state and of persons
• Subdivided into Public and Private Law
• Public law regulates the relationship between persons (legal subjects) and the state
• Includes constitutional, administrative, criminal, and tax law
• Private law regulates the relationship between persons in society
• Includes the law of persons, family law, the law of things, the law of succession, mercantile law, and the law of obligations
• The law of obligations includes contract law, the law of delict, the law of enrichment, and other sources

Procedural Law

• Enforces the substantive law
• Divided into Criminal Procedure and Civil Procedure which determines the procedures which must be followed when enforcing criminal or civil law

Aspects of Civil Law

• The law of evidence determines what facts must be proved in a court case and how
• The law of interpretation of statutes interprets legal documents

Enforcement of the Law - Courts

• Superior and Lower Courts of law in South Africa
• Superior Courts include Constitutional Court (CC), Supreme Court of Appeal (SCA), and High Courts (HC)
• Lower Courts include: Magistrate's Court and Small Claims Courts

Enforcement of the Law - Court Cases

• Two types: civil and criminal cases
• Civil Cases: Someone sues in order for the court to decide who speaks the truth
• Parties are called the plaintiff and defendant or applicant and respondent defendant
• Decided on a balance of probabilities – which version is more probable
• Criminal Cases: The SAPS arrests for a crime.
• Parties are the State and the Accused
• The State prosecutes
• Criminal cases are decided on beyond reasonable doubt
• If there exists reasonable doubt whether the accused committed the crime, the accused must be found innocent
• All accused persons are innocent until proven guilty
• It is better to let the guilty go free than to wrongly convict the innocent