ILW1501 Exam Summary Notes.

ILW1501 Exam Summary Notes. Introduction To Law. Explain what the ‘law’ is:  The law governs behaviour/conduct,  Should be obeyed by all of society and  Is enforced by state organs  By ignoring or disobeying the law we may be prosecuted and punished or ordered to pay compensation for damage or injury Two methods used to divide SA law into two main divisions: 1. SA law can be divided into the two main divisions of public law and private law Public Law: Deals with the relationship between the state and individuals Private Law:Deals with the relationship between individuals and other individuals 2. SA law can be divided into two main divisions of formal (procedural) and substantive (material) law. The Law Public Law Individual(s) State Private Law Individual(s)  Individual(s) The Law Formal/Procedural Law Deals with the procedures that must be followed in legal proceedings (rules, conduct, evidence) Substantive/Material Law Determines the content & meaning of the different legal rules Downloaded by: ToniHasenjager | Distribution of this document is illegal S - The study-notes marketplace THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 2 Normative systems that rule/govern human behaviour: To whom do the rules apply? Sanction for noncompliance Enforcer of sanction The Law Norms which the whole community regards as binding and must be obeyed *Prosecution or punishment *Compensation to an injured party State organ Religion A set of rules in accordance with the people who practice that religion Every religion has its own sanction or punishment Each separate religion Individual morality Norms/standards that every individual sets for himself The sanction is personal and selfimposed The individual Community mores (collective morals) Norms of a whole community or group within that community Varying degrees of disapproval/rejection / discrimination by other members of the community The Community Justice: Equality before the law. SA Law makes two distinctions: Formal Justice Substantive Justice Deals with the procedures that must be followed in legal proceedings (rules, conduct, evidence) Concerns the content of the rule and not the way in which it is applied. Downloaded by: ToniHasenjager | Distribution of this document is illegal S - The study-notes marketplace THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 3 Basic requirements that must be met for formal justice to be achieved:  There must be explicit rules laid down to show how people must be treated in specific cases  The rules must apply generally (all people in the group under the same circumstances)  The rules must be applied impartially by a legal institution (judge may not be biased) Here the content of the rule is looked at to determine whether it is just and fair. Examples: The apartheid rules were specific, applied to all and were applied impartially – however, the content of the rules were unjust and therefore justice was not served Study Unit 2: Law and Rights Understanding the difference between the concepts ‘law’ and ‘rights’ A legal subject is anyone who is subject to the norms of the law and who also may be the bearer of rights and duties. A legal object may be anything that is of economic value to people (cost, usefulness, scarcity). Every right concerns a relationship made up of two parts: 1. A relationship between a legal subject and the object of the right (person  object); 2. A relationship between the legal subject who is the holder of the right, and other legal subjects (person  person) Downloaded by: ToniHasenjager | Distribution of this document is illegal S - The study-notes marketplace THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 4 To legal objects 4 types of rights Real Rights rights of ownership: owner’s power to freely use, alienate and destroy his property rights of pledge: when we pledge something (give a movable thing as security for a dept) rights of servitude: example the right of way one person has been given over another’s land Personality Rights The rights each one has to parts of his/her personality. The right to physical integrity, the right to your good name/reputation, the right to honour Intellectual Property Rights Relates to the creations of the human mind. A work of art, an invention, a trade mark, copyright. Personal Rights A personal right is a right to performance. Also called a claim. Delivery, payment, service. Action of doing or not doing something Against legal subjects Downloaded by: ToniHasenjager | Distribution of this document is illegal S - The study-notes marketplace THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 5 The connection between Law and Rights The content of a right is limited Law and Right are connected because it is the rules of the law that decide on what the powers of the holder of the right are and what the limits to the content of the right is. When a legal subject has a right the other legal subjects have a duty. Their always has to be that balance If this balance did not exist , the law would have no meaning. Study Unit 3 The history of our Law-a three layered cake First Layer: Roman law becomes Roman-Dutch Law  Latin is the language of the Roman empire , and the most important thing the Roman empire gave us which lasted till today is their legal system.  The history of Rome started 753BC and ended 476AD  When the Roman empire was at its height during the second half of the first century BC and for the first two centuries AD it became the master of all the people around the Mediterranean sea. The Roman law that was applied in this period is usually referred to as “classical Roman Law”  At the end of the fourth century AD , the Roman empire split into two parts: Western Roman empire(Rome as its capital) and Eastern Roman Empire also known as Byzantium and now a days called Istanbul as its capital. After this period Roman law began to decline.  Various Germanic tribes from Northern Europe gradually took over the Western Roman empire and in 476 AD a Germanic ruler took the throne of Downloaded by: ToniHasenjager | Distribution of this document is illegal S - The study-notes marketplace THE EXPERT IN ANYTHING WAS ONCE A BEGINNER 6 Rome, as a result Germanic customs replaced Roman customs and Roman law became weaker yet it remained alive.  Germanic rulers allowed there Roman subjects to be governed by Roman law however this was not pure Roman law but thus Roman law which was influenced by Germanic Law  Old classical Roman law survived more successfully in the eastern Roman empire. The emperor of the Easter Roman empire in the sixth century was called Justinian, he wanted to bring order to the legal system.  He decided to codify Roman law as a whole, this collection of Roman law by Justinian was called the Corpus Iris Civilis. By codifying the Roman law Justinian kept Roman Law alive and made it possible for Roman Law to be received in Europe in the 12th century AD  In the 12th century their became a new interest in Roman Law, the University of Bologna in Italy studies these laws and in later centuries that the reception of Roman law took place in the Netherlands, this is what caused the creation of Roman Dutch Law  Some of the most important Roman-Dutch Jurist are Hugo de Groot and Johannes Voet. Their writings today are still used as reference in our courts. Second Layer: Roman-Dutch Law comes to the cape  In the early days of the business of the Dutch East India Company at the Cape, the affairs of the Cape were regulated in terms of the artyckelbrief .  The artyckelbrief was a document that set out the rules and regulations governing the service of those employees of the Company who were on official duty in the Company’s overseas territories.  Only later that when the Cape became a settlement that the lives of the people living there were governed by legislation or Placaeten  Placaeten were like posters that were stuck on the walls of public places.  Roman-Dutch law still today forms the backbone of most of our law  Our Roman-Dutch legal system makes it easy for modern South African lawyers to communicate and interact with lawyers in many countries across the world.