The Notion of Law: Historical & Philosophical Views

• Study Unit 1 covers the historical and philosophical perspectives of the notion of law
• Key resources include Kleyn D & Viljoen F et al, Beginner's Guide for Law Students (2018), Madlingozi T and Field TL et al, Introduction to Law and Legal Skills in South Africa (2021), S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) and Sipho Nkosi, ‘Ubuntu and South African Law: Its Juridical Transformative Impact' 33 South African Public Law (2018).

Learning Outcomes

• Explain the importance of legal history
• Define the concept of law
• Explain the interaction between law, justice, and other norms
• Discuss debates in legal philosophy, like natural law vs positivism, and African jurisprudence
• Understand the role of Ubuntu

SA Legal System

• South African Legal System has the following componenets:
  • Indigenous Component
  • Western Component
  • Universal Component
• The Indigenous Component consists of Indigenous African Law
• The Western Component consists of Roman-Dutch Law and English Law
• The Universal Component consists of Human Rights Law
• Roman Law was received in Western Europe and formed Roman-Dutch Law
• South Africa's legal system is comprised of English Law, Customary Law, and Human Rights Law derived from South African Law

Roman Legal History

• Consists of the Monarchy with a King
• Then the Republic with Consules (Magistrates) and Praetor (Judge)
• Followed by the Empire with a King and Jurists (Lawyers)
• Customary Law (Ius Civile) and the Enactments of the Senate and Edicts of the Praetors (The XII Tables)
• Writings of Jurists, Statute of Citation, Corpus luris Civilis (Justinian's Codification)

Glossators

• Were the first school of legal thought after the fall of the Roman Empire
• Glossators primarily taught Roman Law to their students.
• They wrote explanatory notes, known as glosses, in the margins and between the lines of legal texts

Commentators

• Highlighted the needs of practice became more important to legal scholars
• Commentators were concerned with practical aspects of the law rather than substantive Roman law.
• Commentators provided commentary that would make distinctions and raise new questions

Legal History

• Explains the present character of law by providing context and reasons for the law's current state
• Understanding legal history facilitates necessary change in the law, enabling the legal system to adapt to societal changes
• Legal history is living law, exemplified by the continuous application of common law and customary law in South African courts
• It links South Africa to the law of other countries, showing influences of other legal systems in SA law

Pluralistic Nature of South African Law

• Customary Law (African culture):
• African people inhabited South Africa first and developed their own African legal systems
• Indigenous or customary law played a significant role in the SA legal system
• The development of these customary laws is not well-documented
• Customary law is characterized by customs passed down through generations, adaptability to current situations, regulation of relationships between individuals, and a communal or group-oriented system
• Western Influence (Dutch):
• The Netherlands colonized the Cape in 1652
• Dutch did not recognize the rights of Indigenous people
• Dutch enforced laws on the indigenous people, those laws became part of South African law
• Dutch colonists lived according to Roman-Dutch law
• Roman-Dutch rule included the Roman-Dutch law of Holland, the Batavian Placaaten, and the Statutes of India
• Roman-Dutch law was imposed on African people based on Roman Law
• Western Influence (English):
• English colonization began in 1806
• English decided not to abolish Roman-Dutch law
• English law influenced the SA legal system through acts, case law, and evidence
• English Criminal Procedure, Civil Procedure, and evidence was received through legislation
• SA courts applied English court decisions
• Although the Dutch did not recognise customary law, some of the British colonies in South Africa did

The Black Administration Act 38 of 1927

• Enacted and allowed the application of customary law and provided for a special court system for black people.
• Most of these special courts were abolished in the 1980s.
• Pluralism (existence of multiple legal systems) exists within our legal system.

Apartheid

• Has its roots in colonial history
• From 1948 the SA Government enforced Apartheid laws passed by Parliament
• SA did not follow the separation of powers model, it was based on parliamentary sovereignty
• Parliamentary sovereignty allowed Parliament to enact laws that could not be challenged by the courts
• South Africa is a transformative democratic era governed by a Constitution

Why do we have law?

• Western Approach: Key aspects include:
• Rule of Law, meaning the government makes rules everyone must follow
• No one is above the law
• Law is a social contract individuals enter into
• Thomas Hobbes:
• Argues that individuals enter into a social contract based on FEAR
  • Human beings in their natural state live without rules
  • Without laws, people will destroy each other and live in fear
  • A social contract is entered into, whereby each person gives up their inherent unlimited freedom in order to make co-existence possible
• John Locke:
• John Locke's social contract is based on REASON
  • Human beings are governed by their own reason and live good and stable lives through it
  • However, life is uncertain and conflict arises
  • Through reason, people will enter into a social contract whereby they submit themselves to the authority of the State
  • The State can make and enforce rules in cases of conflict
• Western understanding of a social contract relies on the following key concepts:
  • Separated individuals in the original position
  • An imaginary/fictitious agreement between those individuals
• African Perspective: Key aspects include:
  • The social contract does not exist from an African Perspective
  • Human beings are born into a world of ethical relations and obligations
• Ubuntu: Key aspects include:
  • Can never really escape from the community in which you were born into
  • We must all respect one another's dignity by virtue of our common humanity
  • A person is a person because of other persons

S v Makwanyane 1995 (3) SA 391 (CC)

• Two accused were convicted on counts of murder, attempted murder, and robbery
• Sentenced to death but appealed
• Appellate Division dismissed appeals
• Issue: Whether the death penalty prescribed by the Criminal Procedure Act No 51 of 1977 was consistent with the Republic of South Africa Constitution, 1993
• Judge Langa: Ubuntu is relevant to the values we need to uphold, emphasizing communality and interdependence

Sipho Nkosi

• Argues that lawyers are now constantly relying on ubuntu when drawing up their pleadings and crafting their arguments
• Judges continue to infuse the core values of ubuntu when interpreting the laws of the country
• Ubuntu also played a huge part in the creation of the Truth and Reconciliation Commission in 1996

What is Law?

• Characteristics of the law include rules and principles that provide certainty and are applied by the State.
• Different branches are responsible for various functions related to law
  • Legislature (parliament) creates laws
  • Executive State (police, prison authorities etc.) enforces laws
  • Judiciary (courts) applies laws
• Any legal system is driven by ideology/value systems.
• In a democracy, laws should reflect society's cultural beliefs
• A legitimacy crisis may occur if legal rules do not reflect current values

Definition of the Law

• No single definition of the law, the law is that set of norms designed to regulate society along peaceful and orderly lines
• Sources of South African law include the Constitution, legislation, customary law, common law, custom, case law, international law, and international conventions

Relationship Between Law and Other Norms

• Religious norms, ethical norms, and moral norms.
• The law is a set of norms distinguishing good from bad
• A norm is a rule that regulates human conduct
• Three different normative systems: religion, individual morality (ethical norms); community mores
• Religion determines the relationship between an individual and a Supreme Being
• Every religion has a code (a set of rules) in accordance with which the people who practice that particular religion, live
• Some people are of the opinion that religion and law should be mutually exclusive
• Religion and law should have the same content. Thus, divine laws and sanctions are implemented within the governance of the State, since there is no separation between religion and State (African legal philosophy, Islamic States).
• Similarities between law and religion:
  • Content of religious and legal rules are often the same
  • Both religion and law are studied by interpreting religious texts
  • Adultery is a religious sin in RSA but not a crime in RSA

Amod v Multilateral Motor Vehicle Accidents Fund

• Before this case, Muslim marriages (Nikkah) were not legally protected unless formally registered
• As a result of this case, recognition was given to Muslim marriages in order to allow for the claiming of a loss of maintenance

Christian Education South Africa v Minister of Education

• Section 10 of the South African Schools Act 84 of 1996 prohibits corporal punishment in schools, challenged by a group of Christians arguing for biblical instruction allowing it
• The Constitutional Court held that a child's constitutional right to dignity trumped religious freedom
• Refers to the norms or standards of behaviour that Each Person sets for himself or herself

Individual Morality

• Examples of these are the following: Being Honest, Not Drinking too Much, Not Telling Lies
• Law does not always consider this conscience/internal conflict
• A person's individual morality may coincide with certain legal rules
• Individual morality is not enforced by the law unless it coincides with a legal norm.

Prince v President of the Law Society, Cape of Good Hope, and others 2002 (2) SA 794 (CC)

• Prince, a Rastafarian, used cannabis for religious ceremonies, but its use was illegal.
• He was deemed unfit to be an attorney due to prior convictions. The court found his freedom of religion had been infringed
• His Western Cape High Court right to freedom of religion had been infringed, but was still justified in terms of s36 of the Constitution

Community Mores

• Norms of a whole community or group, referred to as collective morals
• These are not private matters concerning a specific individual
• The mores (morals) of different communities may differ
• Difficult to determine community mores due to the nature of differences in upbringing and belief.

The Role of Paternalism

• The Law is described as paternalistic - Like a Parent – regulatory with your best interests at heart
• Children may not be allowed to conclude a contract on their own
• Persons over a certain age may not adopt a child
• the Interests of the child concept that allows courts to make decisions on behalf of a child or against the wishes of the parents

Theories About The Law And The Role Of Justice

• Justice is regarded as an ideal of any legal system
• Sometimes, the strict application of the law will lead to injustice rather than justice
• Procedural law and substantive law are analyzed to understand the relationship between law and justice

Procedural (Formal) Justice

• Rules that determine how court cases are decided are contained in procedural law
• The part of the law dealing with procedures must be followed in legal proceedings
• Example: Police should have a search warrant when searching a vehicle at a roadblock

Substantive (Material) Justice

• Concerns the content of the rule, and not the way in which it is applied
• Substantive or material law determines the content and meaning of legal rules
• There is a connection between formal (or procedural) law and substantive (or material) law

Positive Law (Legal Positivism)

• Positivist lawyers take the Law As It Is and do not question what it ought to be
• The fairness or justness of the law is irrelevant
• Morality and law are distinctly separated from each other
• Law is laid down in statutes, rules, and court decisions

Natural Law

• Refers to laws in harmony Legal positivism is in direct contrast with the laws of nature/human reason
• The approach states that what the law ought to be, Contains a moral code or dimension
• Positive law in conflict with these higher norms is regarded as unjust

Law and Certainty

• Informs the Stare Decisis principle
• The Stare Decisis principle requires that 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, applied consistently, and has a fixed and certain content
• Factors such as language, changing values, and judicial discretion make legal certainty an illusion

Language

• Legal rules are cast in language
• Language must be interpreted
• Interpretation can differ from person to person

Changing Values

• Law must adapt to changing circumstances in order to remain effective
• Changing values of a community must be considered

Judicial Discretion

• Interpretation of words and norms implies that judges have a discretion in applying the law
• Judicial officers usually take one of two approaches: judicial activism and deference
• Judicial Activism is where judges use their discretion creatively in order to interpret the law
• Judicial Deference judges curtail their discretion by deferring to the executive or legislature