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Unit 1 Introduction (1)

The document introduces the concept of law, defining it as a set of rules created by an authority to maintain order and regulate interactions within society. It discusses the relationship between law, morality, and shared societal values, emphasizing the importance of the law reflecting these values. Additionally, it contrasts legal positivism and natural law, highlighting their implications for justice and the enforcement of laws.

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11 views

Unit 1 Introduction (1)

The document introduces the concept of law, defining it as a set of rules created by an authority to maintain order and regulate interactions within society. It discusses the relationship between law, morality, and shared societal values, emphasizing the importance of the law reflecting these values. Additionally, it contrasts legal positivism and natural law, highlighting their implications for justice and the enforcement of laws.

Uploaded by

sethu.mahlangu300
Copyright
© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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UNIT 1: INTRODUCTION

Textbook: Chapter 1
What are you
going to study?
….”possibly
a great
catch….”

Law
What is the law?
Why do we
need the law?
What is law?
A set of rules ‐made by an institution with authority
to make these rules ‐to “organize” a group of people.
Social contract

Law
• regulates interaction;
• determines what is acceptable and permissible;
is, therefore, prescriptive

• Why? To maintain order


How did the
law come into
existence?
Need for order/peace /security

Power structure develop (government)

Make rules (social contract /legislation)

Enforce
Voluntary submission to authorities
SOSIAL CONTRACT = MORE THAN RULES

• Economic values
(Capitalism or socialism)
• Political values
(Democratic of one party state)
• Social values
(Equality or class differences)
• Moral values
(Conservative or permissive)

SHARED VALUES ARE THE


WHAT ARE THE
SHARED VALUES OF THE
SOUTH AFRICAN LEGAL SYTEM?
Freedom
Equality
Human dignity
Enshrined in the
1996
Constitution
So, the functions of law are
Ensuring order in relationships and interactions
among people and between people and things

Basically, “to combine and balance the


conflicting ideas of freedom and order”
(Meintjes‐Van der Walt et al.)
How do we
enforce the
law?
SANCTIONS

PRIVATE L AW
L AW
L I C
CONS B
TITUT PU
IONA
LAW? L
SUMMARY …

• The law consists of legal rules which regulates


human interaction.
• It structures society to ensure certainty.
• Rule are enforced by state institutions.
• Sanctions follow non-compliance.
• The law should reflect the shared values of the
society it represents.
Morality?
The Law and Morality
• The law – distinguishes between right and
wrong….

• Other normative rules??


• Religion
• Individual morality
• Community mores
Abortion

o n s h i p
Relati
Individual morality

Prostitutio Community
n Law
mores

Live together before Religion


marriage Euthanasia
LAW AND JUSTICE

Legal Positivism vs Natural law

• Legal positivism
• The law is that which is (all rules that are given
positive content).
• It is irrelevant whether law is just and fair.
Legal Positivism
• Law and morality are separated.
• Law is also detached from politics and
economics.
• Judges can be absolutely objective when
applying the law.
• Thus judges only apply (speak) the law; they do
not create law.
• Thus the function of the court is:
• “Ius dicere, non facere.”
In SA the strong positivistic approach led to the
apartheid legislation. The positivistic theory was
replaced by the constitutional dispensation.
It resulted in a set of norms to test all actions of the
state.
NATURAL-LAW
• Law has a moral dimension
• Includes what SHOULD BE
• Characterised by moral code – higher norms
• Unjust law= no law
• Found in human nature
– Dignity
– Equality
• Laws of God - source
• Determined by human reason
NATURAL-LAW
• Universally applicable – all times, places
• No legislature necessary to determine it. Eg?
• Slavery
• Should one obey unfair laws?
• Civil disobedience- violent / non-violent
• Minimum sentences – judges in USA against
its application.
Different views exist…
Legal positivism: Is to be found in the will of the
legislator. Determined by time and place.
Natural law:
Is to be found in the common reason of mankind.
Are common to all nations.
Regarded as the ideal as opposed
to the laws of a state.

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