Chapter 3: Legal Pluralism

Question 1

What is Legal positivism?

Answer 1

Based on the idea that law can be found in tangible sources, such as legislation and court precedents, that can be verified scientifically or logically.

Question 2

What is Austin’s theory of law?

Answer 2

It is a command of the sovereign enforced through threat of punishment.

Question 3

Explain the Sources Thesis

Answer 3

The pedigree of rules, that is, their source, determines their status as law.

Question 4

Explain the rule of recognition

Answer 4

The ultimate secondary rule to which all rules and the exercise of public power must conform.

Question 5

Is there room in legal positivism for customary law?

Answer 5

Customary law, it is law in its own right whether or not it recognised by the state, since it derives its legitimacy directly from the community in which it applies.

Question 6

What does the ‘Rule of Law’ mean?

Answer 6

The supremacy of the law.
Any law or conduct found to be inconsistent with it must be declared null and void.

Question 7

What are the objectives of the ‘Rule of Law’?

Answer 7

• Separartion of powers between the three arms of state.
• Equality before the law
• Right to fair trial
• Legality

Question 8

What does ‘Legality’ mean?

Answer 8

It refers to the lawfulness.

Question 9

What does legality require of law to be at all times?

Answer 9

• Clear
• Specific
• Certain
• Precise
• Available and easily accessible

Question 10

What does legal centralism entail?

Answer 10

Law is and should be the law of the state, uniform for all persons, exclusive of all other law, administered by a single set of state institutions.

The State tis therefore the focus as the only source of legitimising authority in what is true law.

Also sees the state as having a monopoly over the creation and administration of law.

Question 11

What is legal pluralism?

Answer 11

Seeks to decentralise state law and draw attention to and develop understanding of the multiple legal systems that exist officially and unofficially within a single legal order.

Question 12

What is the difference between Legal Pluralism and Legal Centralism?

Answer 12

Legal Pluralism is the fact.
Legal Centralism is a myth, an ideal, a claim, an illusion.

Question 13

What is Weak Legal Pluralism?

Answer 13

• Law that is made by the state.
• The recognition and regulation by the state of a plurality of legal orders or systems.
• This law is also sanctioned by the state
• This is law that is found in court cases and legislation among other things.
• An example would be official customary law

Question 14

What does Section 211(3) of the Constitution and Section1(1) of the Law of Evidence Amendment Act entail?

Answer 14

It states that Weak legal pluralism includes all customary law which is readily ascertainable with sufficient certainty, not in conflict with the Constitution.

Question 15

What are the limits to Section 1(1) of the Law of Evidence Amendment Act?

Answer 15

1. Ascertainable with sufficient certainty - not necessarily authoritative texts, but also non-written modes of ascertainment.
2. Certain legislation allows for the application of customary law without explicitly defining the specifics of the applicable customary law.

Question 16

What is ‘Deep legal pluralism’?

Answer 16

• Strong form of legal pluralism
• Recognises multiple normative orders may co-exist even without belonging to a single unified state system or emanating from the same source of authority.
• State does not play a role in the making of the law
• Legal subjects are the ones that lead incrafting the law.
• E.g. : Living Customary Law