Module 4

Question 1

What is the law?

Answer 1

The law is a system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by imposing penalties

Question 2

What are some characteristics of law?

Answer 2

Law is made for and by people, it is neither elevated above criticism. The law is constantly being recreated. Law presupposes a society. Law is rules laid down to facilitate peaceful and productive interaction between people.

Question 3

What is the rule of law?

Answer 3

The rule of law is a key feature to justice in any democracy. Democracy is a system of rule through the application of just law not ruled by arbitrary decisions of individuals.

Question 4

What are the principles of the rule of law?

Answer 4

• It must apply equally to all people within the country, everyone should be equal before the law.
• No one should be exempt form the rule of law
• Adherence to the rule of law should protect the rights within the constitution
• The rule of law limits the powers of government, they cannot act in an arbitrary manner and only within the bounds of law

Question 5

What is the purpose of the separation of powers in the judiciary?

Answer 5

The separation of powers demands that the judiciary is separate from the government. The judiciary is therefore independent and can operate without fear, favour or prejudice. The proceedings should be fair, where the facts of both sides are heard and the ruling is only based on facts of law.

Question 6

How can the rule of law be protected?

Answer 6

The rule of law can only be protected where an impartial judiciary applies the law fairly. This is through independent, fair and public and transparent court process

Question 7

Why should the rule of law be upheld?

Answer 7

• Respect of the rule of law is an important requirement to safeguard justice within a democracy
• It ensures that individuals actions are in line with the country’s laws
• It ensures that people in power don’t make decisions in an arbitrary or personal manner
• It protects us by ensuring it applies equally to everyone and ensures no one has absolute power in our lives
• Upholding the rule of law can lead to prosperity, peace, freedom and justice in our country

Question 8

How can the rule of law be effective?

Answer 8

The rule of law can only be effective when courts act in an independent, fair, public and transparent manner

Question 9

Who are the philosophers of law?

Answer 9

• Thomas Hobbes- individualistic and self interest, this argument dependence is based on slavery.
• John Locke - self regulation through social contracts and allows governance through submission to the state
• John Rawls - social contracts that are just to all

Question 10

What is philosophers John Rawls philosophy?

Answer 10

Philosopher John Rawls suggests that we should imagine we sit behind a veil of ignorance that keeps us from knowing who we are and identifying with our personal circumstances. By being ignorant of our circumstances we can more objectively consider how societies should operate. Approaching society this way prompts fairness, which Rawls believes is the essence of justice

Question 11

What are the two principles that support Rawls veil of ignorance?

Answer 11

• Liberty principle - The social contract should try to ensure that everyone enjoys the maximum liberty possible without intruding upon the freedom of others
• Difference principle - The social contract should guarantee that everyone has an equal opportunity to prosper, if there are any differences in the contract it should help those worse off and all advantages should be available to everyone

Question 12

What is philosophers John Lockes philosophy?

Answer 12

Philosopher John Locke is an English philosopher of the seventeenth century and his view is that humans are governed from the beginning by reason and live good and stable lives. Still life remained uncertain, full of threats and conflicts. Therefore people enter into a social contract, the state is allowed to make laws and to enforce them.

Question 13

What is philosophers Thomas Hobbs philosophy?

Answer 13

Philosopher Thomas Hobes is an English philosopher of the seventeenth century and regards humans in their original state as people living without rules. Each individual is only a slave to desire and self-interest and without laws people keep on destroying each other. But reason leads humankind to realise that it is in its self-interest not to sustain such a lifestyle. Fear of their own destruction makes it possible for individuals to accept the authority of the ruler

Question 14

What is the western understanding of law?

Answer 14

John Rawls, John Locke and Thomas Hobbes’ arguments are in line with the western justification of what the law is. They get people to regulate themselves and see their is something to adhere to. The Western understanding of social contract ultimately requires two things: separated individuals in the original position and an imagined agreement.

Question 15

What is the African understanding of law?

Answer 15

An African approach of understanding law’s existence departs from Western requirements. The belief is that human beings are born into a world of ethical relations and obligations where we owe duties to other people and they owe duties to us. Individuals are part of a community and there is recognition that all of us must respect each other’s dignity by virtue of our common humanity and ubuntu.

Question 16

How can law approach different social contracts?

Answer 16

• Social contracts in an African approach there are duties owed and a world is intertwined. This gives rise to ubuntu where there is common approach and community
• Social contracts in a Western approach leave individuals in their original position and is a fictitious agreement

Question 17

What are the characteristics of the law?

Answer 17

• It consists of a body of rules and principles and regulates human interaction
• It orders society and gives some degree of certainty
• The rules are often applied or interpreted by institutions of state and they are enforced by employees of the state.
• The content of the law depends on the history

Question 18

What are shared values in relation to law?

Answer 18

Shared values help us make the primary sources of law The shared values such as economic values, political values, social values, moral values. The law has to reflect the majority of the shared values of the population to be legitimate in its purpose and act.

Question 19

What are the shared values enshrined in the Constitution?

Answer 19

• Human dignity, the achievement of equality and the advancement of human rights and freedoms.
• Non-racialism and non-sexism.
• Supremacy of the constitution and the rule of law.
• Universal adult suffrage (ability to vote), a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Question 20

How does liberalism relate to law?

Answer 20

Liberalism could think of law as a tool that ensures that the states power is limited and that individuals are protected from various kinds of abuse.

Question 21

How do Marxists think of law?

Answer 21

Marxists are often skeptical of law and might define it as an illegitimate system, with rules that protect the rich and exploit the poor.

Question 22

How does feminist think of law?

Answer 22

Feminists sometimes think of law as a patriarchal construct that largely serves to benefit men

Question 23

How does critical race theorist think of law?

Answer 23

Critical race theorists are committed to exposing the structural and patent racism inherent to law.

Question 24

What is morality?

Answer 24

Morality is the difference between what is good and what is bad.

Question 25

What are normative systems?

Answer 25

Normative systems determines the relationship and conduct between law and morality

Question 26

What are normative systems determine the relationship and conduct between law and morality in relation to?

Answer 26

• Religion- is the relationship reconcilable or irreconcilable
• Individual morality- is the relationship an individual beliefs or a conscience
• Community morals- collective morals or autonomous decisions

Question 27

How does religion relate to law?

Answer 27

There are many similarities between law and religion. The Western legal tradition is strongly influenced by Christian thought. However there are differences and these normative systems do not overlap completely. There are certain aspects of the South African law that favour the Christian religion.

Question 28

What is the relationship between religion and law?

Answer 28

• Some people are in the opinion that religion and law should be mutually exclusive. This is the secular approach to law. To them religion is personal matter, only concerned with the individuals destiny after death. It is not the task of the state to enforce religious norms or convictions on its citizens
• Some people are accepted that religion and law should have the same content.

Question 29

What is individual mortality?

Answer 29

Individual morality is every individual’s ideal self-image. This concerns a private conflict between an individual and her conscience.

Question 30

What are community mores and how does it relate to law?

Answer 30

Community mores are the norms of a whole community or group within that community. They are collective morals. They are not private matters concerning only a specific individual. The sanctions for non-compliance are varying degrees of disapproval by other members in society. The law does not always take cognizance of community mores

Question 31

What is philosopher John Stuart Mill philosophy of law?

Answer 31

Philosopher John Stuart Mill states that the force can only be exercised over an individual if harm to others can be prevented. The state cannot interfere merely to further the physical or moral good of the individual. The law must only create a climate in which autonomous decision-making is possible.

Question 32

How is law paternalistic?

Answer 32

The law is described as paternalistic if it prescribes good conduct and morality like an omniscient father. The law is paternalistic in regard to children because they do not have the capability to understand the consequences of their deeds or to make informed choices. But the law regards adults as having sufficient insight and knowledge to make free choices.

Question 33

What is justice?

Answer 33

Justice is one of the most important political ideals that lie at the heart of constitutional democracy. Justice means right or law. It is used interchangeably with the word fairness. Justice is often depicted as a blind person as we want it to be blind to stereotypes and opinions.

Question 34

What is distributive justice?

Answer 34

Distributive justice means that there must be an equal distribution among equals. It is about restoring inequality

Question 35

What is corrective justice?

Answer 35

Corrective justice aims at restoring inequalities. Corrective justice is trying to get rehabilitated.

Question 36

What is equality in justice?

Answer 36

Equality is prompting justice, impartiality and fairness within the procedure processes and distribution of resources by institutions and systems

Question 37

What is equity in justice?

Answer 37

Equity prompts social justice. It considers barriers and removes them. Equity is not the same as equality. Equity is providing everyone with what they need to have access to fix an issue. Equity varies based on circumstances

Question 38

What is procedural law?

Answer 38

Procedural law consists of the legal rules and processes according to which court reaches a decision or solution.

Question 39

How does our legal system work towards formal justice?

Answer 39

Our legal process strives towards formal justice by the idea that like cases must be treated alike and an accused person as innocent until proven guilty.

Question 40

What is substantive law?

Answer 40

Substantive law consists of the material legal rules

Question 41

What is formal justice?

Answer 41

Formal justice looks at precedence’s and takes into account the audi alteram partem principles. This requires both sides to be heard and a person must appear before court within a reasonable time and that no force or undue influence may be used to induce an accused person to confess to a crime.

Question 42

What is the view of legal positivism?

Answer 42

Legal positivism is the law which is and not ought to be. Their is irrelevant whether the law is unfair or just. Judges only speak the law they don’t make the law. Law is what is set down in statute books, in rules and in court decisions, it is only those rules that are given positive force of law that can be regarded as law. The court’s function was not to strive towards fairness but to apply Acts of Parliament, irrespective of social, political and economic implications.

Question 43

What is ius dicere non facere?

Answer 43

ius dicere non facere means the judges speak the law they do not create the law

Question 44

What is natural law?

Answer 44

Natural law is norms based on the harmony of human nature and reasoning. Law has a moral dimension. There is a moral code or set of moral principles that exist irrespective of human interaction or positive law.

Question 44

What is the assumption of legal positivism?

Answer 44

Legal positivism places the most emphasis on the formation of legal rules. Legal positivism is based on the assumption that law and morality can be distinguished and separated.

Question 45

What is the view of natural law?

Answer 45

Natural law is Eurocentric and based on human nature. It believes positive law conflicts with these norms; it’s unjust and an unjust law is no law at all. The legality of legal rules for natural lawyers depends on the moral content of the laws. Resistance against law is known as passive disobedience or civil disobedience

Question 46

What was the philosopher Fuller philosophy of law?

Answer 46

Fuller an American philosopher states the minimum requirements of morality have to be present in the legal process. The law must be certain and clear, not retrospective and of relatively constant nature. Here the humanity of judges is emphasised and the moral implications of choice are highlighted.

Question 47

Is the constitution natural or positivism law?

Answer 47

The Constitution is regarded as an embodiment of natural law because a law that is in conflict with the Constitution is invalid once a court declares that to be the case.

Question 48

What is legal certainty?

Answer 48

In legal certainty the law is predictable, that it will be applied consistently, it is fixed and has certain content/rules/regulations. We look at legal certainty based on the language, the changing values and the Judicial discretion in legal matters.

Question 49

What is judicial discretion mean?

Answer 49

Judicial discretion, the interpretation of words and norms implies that judges have a discretion in applying law. The discretion inevitably highlights subjective prejudices and attitudes. Judicial subjectivity appears in cases where no fixed sentence is prescribed.

Question 50

How can community values be changed into laws?

Answer 50

Parliament as a democratically elected representative of the community has a more legitimate basis to convert changing community values into law.

Question 51

What is judicial activism?

Answer 51

Judicial activist judges use their discretion creatively to interpret the law in order to effect social change

Question 52

What is judicial resistrant?

Answer 52

Judicial differential/restraint judges derive from a legal positive outlook. Judicial restraint limits the exercises of his discretion and by deferring to executive or legislature often allowing them to effect social change

Question 53

What is a legal realist?

Answer 53

Legal realists regarded law not as something abstract but as court’s decision in concrete cases. This is what is written down in statues books or in legal rules in not sufficient to explain what the law is. The law is sceptical about rules and claims to objectivity.

Question 54

What is legal feminism and what is the ideology behind it?

Answer 54

Legal feminism is an ideology of patriarchy that states that the law is a socio-economic area that is male dominated. They believe the law is not equal for women and that male objectives are underlaid in the law while women objectives are not. This is also the ideology of homemaking and nurturing that since industrial revolution/economic boom mining created the gender roles which multiplied to management or business operation and therefore male leadership overtime became a stronghold and developed to patriarchy.

Question 55

What does legal feminism want?

Answer 55

Legal feminism is that women want equal rights and opportunities professionally in workplaces, to be active players in the business and any other professional fields. The legal profession was until recently exclusively male dominated. The first South African woman was admitted as an attorney in 1926.

Question 56

What does Judge Cahns state?

Answer 56

Judge Cahn stated that the ethics of care and justice and empathy should be used as a guide when dealing with legal feminism.

Question 57

What does Judge Coombs state?

Answer 57

Judge Coombs stated that we should adopt a feminist approach when dealing with legal feminism.

Question 58

What is critical legal studies?

Answer 58

Critical legal studies deal with critical race theory. This theory criticises the political bias of the law and this approach focuses attention prominently on the role of race in legal practice and legal interpretation. The racial prejudice and structural advantage in neutral legal rules and concepts such as reasonableness, neutrality, equality and in the application of the criminal system.

Question 59

What did judge Calmore?

Answer 59

Judge Calmore stated that we need to seek to be humanitarians by liberating the oppressed and that the racial race is poison

Question 60

What are the two principles of the critical race theory?

Answer 60

• The centrality of racism is that racism is a normalised and ingrained feature of social order which appears often in nuanced and covert ways
• The white supremacy does not refer to rightwing extremist racist hate groups that consciously promote white domination, but rather denotes a system in which whites maintain overwhelming control and power

Question 61

What are the theoretical statements of what Critical Race Theory is?

Answer 61

• Critique of liberalism
• Anti-essentialism
• Intersectionality
• Structural determinism
• Social science insight, historical analysis and multidisciplinary thinking
• Storytelling

Question 62

What are critical legal studies scholars stating?

Answer 62

Critical legal studies are scholars that have highlighted the political nature of law to them, law is not distinct from and above the power play in society but a part of it. Law is an instrument used to maintain the existing power relations in society.

Question 63

What are non-positivists?

Answer 63

The non-positivists regard law as part and parcel of the socio-political environment. The most important question for them always is whether the law is fair and just. They do not believe in the absolute objectivity of the judge.

Question 64

What are positivists?

Answer 64

Positivists regard law as something detached from politics and economics. They apply law as they find it and do not ask whether it is just or fair. They believe a judge, when applying the law, can be absolutely objective and can remain impartial and unbiased.