South African Law: Historical & Philosophical Basis

• Study Unit 1 explores the historical and philosophical perspectives of the notion of law.
• The learning outcomes include explaining the importance of legal history, defining the concept of law, and understanding the interaction between law, justice, and other norms.
• The role of Ubuntu and basic debates in legal philosophy like natural law vs. positivism are also key areas of study.

South African Legal System Components

• The South African legal system comprises indigenous, Western, and universal components.
• Indigenous African law, Roman-Dutch law, and English law make up this system.
• Human Rights Law contributes to the Universal Componenet.

Roman Law Evolution

• Roman law evolved through different periods with distinct governing bodies and legal sources.
• The Monarchy was ruled by a King and used Customary Law.
• The Republic was ruled by Consuls and magistrates and used enactments of the Senate and Edicts of Praetors
• The Empire was ruled by a King and used Jurists, writings of Jurists, the Statute of Citation, and Corpus luris Civilis
• Glossators wrote explanatory notes (glosses) on Roman law texts after the fall of the Roman Empire and taught Roman law.
• Commentators focused more on the practical aspects of the law and gave opinions.

Legal History

• Legal history explains why the present legal system is the way it is and improves understanding of modern law.
• Understanding legal history facilitates necessary changes in the law as society evolves over time.
• South African law includes common law which is a living law, along with customary law and customs.
• Influences of Roman-Dutch Law, Customary Law, and Common Law are evident in South African law.
• Legal history provides an understanding of the present character of South African law.

Pluralistic Nature of South African Law

• African people introduced indigenous or customary law, which played an important role.
• Customary law consists of customs passed down through generations and regulates relationships between individuals.
• It is communal and adaptable but was not historically recorded.
• The Netherlands colonized the Cape in 1652, leading to the Dutch enforcing their laws on indigenous people
• Dutch colonists lived according to Roman-Dutch law, which was based on Roman Law.
• The official sources of law included Roman-Dutch law of Holland, Batavian Placaaten, and Statutes of India.
• In 1806, English colonization began in South Africa which led to English law exerting influence mainly through laws and case law.
• Unlike the Dutch, some British colonies recognized customary law.
• The Black Administration Act 38 of 1927 allowed customary law and a special court system for black people.
• Most special courts were abolished in the 1980s; pluralism exists within the legal system.
• The SA Government enforced Apartheid laws from 1948, which were passed by Parliament.
• Parliamentary sovereignty was the basis of the system which allowed Parliament to enact and change laws.
• South Africa is currently in a transformative democratic era governed by a Constitution.

Western and African Perspectives on Law

• From a Western perspective the government makes the rules, and citizens have to abide by it, with no one above the law.
• Law is described as a social contract individuals enter into.
• Some philosophers believed that a social contract is entered into that is based on fear
• This is where people give up their inherent unlimited freedom in order to coexist.
• Other philosophers believed it was based on the fact that individual will enter into a social contract whereby they submit themselves to the authority of the State.
• The Western understanding relies on the concept of separate individuals in an original position entering an imaginary agreement
• From an African perspective, the social contract does not exist.
• Human beings are born into a world of ethical relations and have duties to others.
• Ubuntu is a concept that emphasizes our common humanity, where a person is a person because of other persons which has been referenced in legal cases.
• The concept of ubuntu is relevant to uphold values, it emphasizes communality and interdependence

The Concept of Law

• Characteristics of law include rules, principles, a degree of certainty, and State application.
• The government, legislature, executive, and judiciary are responsible for the law.
• Core values in any legal system are driven by ideology and value systems.
• A legitimacy crisis may occur if legal rules do not reflect current societal values.
• South African law sources include the Constitution, legislation, customary law, common law, custom, case law, and international law.
• The law can be defined as a set of norms designed to regulate society along peaceful and orderly lines.

Relationship Between Law and Other Norms

• Law is a set of norms distinguishing good from bad.
• A norm regulates human conduct and are viewed as a standard of human behavior.
• Three different normative systems are religion, individual morality, and community mores.
• Religion determines the relationship between an individual and a Supreme Being.
• Law and religion are viewed as a personal matter by some.
• Similiarities exist between law and and religion whereby religious legal rules are often the same.
• Morality (ethical norms) refers to the standards of behaviour that EACH PERSON SETS FOR HIMSELF OR HERSELF
• However, individual morality, as such, is not enforced by the law unless it coincides with a legal norm.
• A community's norms are collective morals.
• The origin of some community mores may be found in that community's religious convictions.
• Law and community mores may coincide or be the same.

Role of Paternalism

• Paternalism involves the extent to which the law adopts an attitude to prescribe what is best based on community attitudes.
• The law being like a parent is regulatory with one's best interests at heart.

Theories, Law and Justice

• Justice is regarded as an ideal of any legal system however the justness of legal rules have been questioned throughout history.
• Procedural (formal) justice includes the rules that determine how court cases are decided aka procedural law.
• Substantive (material) justice concerns the content of the rule, and not the way in which it is applied.
• Substantive or material law is that part of the law which determines the content and the meaning of the different legal rules.
• Positivist lawyers take the law as it is and do not question what it ought to be.
• Natural law refers to laws which are in harmony with the laws of nature and human reason.
• A characteristic of this approach is it contains a moral code or dimension.
• Legal certainty informs the "stare decisis" principle.
• "Stare decisis" principle requires a decision of a court should be followed by a later court where the facts are substantially the same.
• Legal certainty means that the law is predictable, will be applied consistently, and has a fixed and certain content.
• The interpretation of words and norms implies that judges have a discretion in applying the law.
• The CHANGING VALUES OF A COMMUNITY and even technological advances must be considered.
• Judicial activism is where judges use their discretion creatively in order to interpret the law in a manner that affects social change.
• Judicial deference is where judges curtail their discretion by deferring to the executive or legislature, allowing the government or parliament to rather effect social change.