Topic 3

Question 1

why are the foundational values important

Answer 1

1. illumines social settings in which
   indigenous law emerged and explains why
   it struggles to fit with modern conditions
2. enhances scholarly understanding of the
   relationship between values and laws
3. offer a nuanced approach to the adaptive
   interaction of laws in post-colonial
   settings

Question 2

what are the 2 elements that laws are composed of

Answer 2

1. social behaviour

2. sense of obligation

Question 3

what holds the the two elements of law together

Answer 3

values

Question 4

Are all social behaviours law?

Answer 4

All laws express social behaviour but not all social behaviour is law

Question 5

What gives social obligation the character of law

Answer 5

a sense of obligation

Question 6

What does a sense of obligation flow from

Answer 6

Normative value = the purpose of social behaviour –> the how and why social behaviour arises , operates and changes

Question 7

What is the definition of a value

Answer 7

Individual or collective beliefs
which people hold about 
what is wrong or right / useful and useless
what is appropriate and condemnable 
in society/ social behaviour

Question 8

What other role does the law serve other than its primary regulatory function

Answer 8

the law serves as a repository of values and expression of values

Question 9

what are 5 indigenous law values

Answer 9

1. Best interest of family and duty of care for dependants
2. Preservation of the ancestral home
3. Ubuntu
4. Family involvement in marriage
5. fair trade

Question 10

What are indigenous values shaped by

Answer 10

the social settings in which the norms emerged

Question 11

what are the social settings in which the law emerged marked by

Answer 11

communality

Question 12

for what 2 reasons are social settings marked by communality

Answer 12

1. defence against wild animals, bandits and slave raiders

2. agriculture in which wealth was produced communally organised by a historical figure

Question 13

Explain best interest of the family and duty of care to dependants

Answer 13

Male primogeniture: the male operates with best interest of family as foundational value of inheritance
- inherits properties of deceased person as well as their social status and responsibilities to maintain the dependants

Question 14

Explain preservation of the ancestral home

Answer 14

important cultural and spiritual symbol that demands respect and preservation

There is a connection between the material world and spiritual world and a reverence for ancestral spirits.

Question 15

translate motho ke motho ka batho ba bang

Answer 15

a person is a person because of or through other people - ubuntu

Question 16

translate umuntu nguumtu ngabantu

Answer 16

a person is a person because of or through other people - ubuntu

Question 17

explain ubuntu

Answer 17

a foundational value of social organisation because it seeks the general welfare of the group

Question 18

where can we find evidence of ubuntu in traditional governance in SA

Answer 18

1. Imbizos

2. Indabas

Question 19

What is an Imbizo

Answer 19

An imbizo is a national gathering convened by traditional leaders to solicit public views on issues of general concern

Question 20

what is an indaba

Answer 20

democracy by consensus

Question 21

how do imbizos and indabas work together

Answer 21

after opinions are expressed in imbixo , decisions are reached via indaba that is a consensus of community members

Question 22

Explain family involvement in marriage

Answer 22

Marriage confers social legitimacy in african communities.
It is founded on the family
Centres on social harmony that shapes the desire of a couple to marry

Question 23

what socio economic changes are affecting family involvement in marriage

Answer 23

Reduction:

• in polygynous marriages
• promotion of nuclear family
• increased age of marriage
• rising freedom of courtship and spousal choice
• cohabitation and double marriage

Question 24

explain fair trade

Answer 24

• fair trade existed in trade pre colonial times

- fairness is an english approximation of an indigenous principle with strong metaphysical roots

Question 25

what does fair trade mark

Answer 25

” a tropical african spirit”

“access to land and resources to those who need and can use it and no one should starve for special want of it”

Question 26

what do diala and Kangwa argue

Answer 26

most indigenous laws have transformed into customary laws through people’s adaptations to legal, economic , religious and globalisation fuelled challenges in intersecting social fields.

Question 27

what does the diala and kangwa article offer

Answer 27

foundational values of indigenous laws are building blocks of constitutionalism and legal integration in the continent

Question 28

what do diala and kangwa conclude

Answer 28

african constitutions should spearhead integration of customary law with state law by adopting the foundational values of indigenous laws as constitutional principles