ILW1036 STUDY NOTES
HUMAIRA KHAN ©
Q: What is “the law”?
A: The law is all encompassing; it entails many facets of everyday life. It governs our
behaviour in the form of legal norms. It is to be obeyed at all times by all members of
society, if one fails to comply with the law, punishment is administered, be it as a jail
sentence or remunerations for damages caused. The law is made, governed and
enforced by state organs.
The law is divided into two sections namely, private law and public law.
Private law, deals with the relationship between individual citizens whereas public
law deals with the relationship between the state and the individual.
The divisions of the law can also be interpreted as Formal (Procedural) law and
Substantive law. The procedures that must be followed in legal proceedings are
ruled by formal law. Substantive law is that which determines the content and the
meaning of different legal rules. The different normative systems and the law have
strong links to each other. For example, religion and law overlap in many aspects as
the Western legal tradition is strongly influenced by canon law. Discrepancies
however, do appear as some religious boundaries cannot be enforced by law,
example adultery. Personal morality is not enforced by the law unless it coincided
with legal principles. This is due to the fact that personal morals are based on the
character of the individual. Community mores however, are the collective morals of
the members that make up the community. As with personal ethics, these norms are
only enforceable when it coincides with the legal norms. As communities differ, the
accepted behaviour in each community differs according to the residents.
Justice is equality before the law. In this respect, some arguments can be made that
the law is unjust or just. In regard to Formal law, there are basic requirements that
formal law must comply with to achieve justice. These requirements are that the
rules must be explicitly laid down to show how people must be treated in specific
cases. These rules must apply to all which fall under the same circumstances and
this rule must be implied impartially by an unbiased judge.
Substantive justice however, remedies some cases in which a party may feel that the
result was unjust. Substantive justice concerns the content of the rule and not the
way on which it is applied. In this way, formal law is that part of the law which
regulates the enforcements of substantive law.
1
, Law is also a system of rights. Every rights involves a relationship that is made up of
two parts, the relationship between a legal subject and the legal object, and the
relationship between the legal subject which is the holder of the right and other legal
subjects (they must respect your rights).
A legal subject is anyone who is subject to the legal norms and who also may be the
bearer of rights and duties. A legal object is an object to which economical value
may be attached, be it a car or a person’s good name.
There are four classes of rights, namely real rights, personality rights,
intellectual/immaterial property rights and personal rights.
a) Real rights are rights to physical, material things, eg a car. Real rights are
called rights of ownership, rights of pledge or rights of servitude etc. Rights of
ownership give the owner the right of Ius utendi, fruendi and abutendi. A right
of pledge is when an object is used as collateral (mancipatio cum fiducia,
pignus and hypothec), in this respect, the right to the pledged thing is limited
as it cannot be used or enjoyed until the debt is paid. Rights of servitude are
for example, servitudes of iter give the right to walk over the land of another.
b) Personality rights are the rights that each one of us has to parts of our
personality. Eg the right to physical integrity, the right to good name and
reputation and the right to honour. (actio iniuriarum)
c) Intellectual property rights relate to the creations of the human mind.
Copyright and Patents protect this right.
d) Personal rights is the right to performance. It may be a claim, delivery,
payment or services.
Roman-Dutch law and its origins:
a) The Roman era spanned across 753BC-476AD. The height of the Roman
Empire was during the second half and first two centuries AD. It was during
this period that Roman culture, law and development reached its peak. The
Roman law administered in this period is known as classical Roman law.
However, in the 4th century the Roman Empire split into the Western Roman
Empire where Rome was the capital and the Eastern Roman Empire where
Constantinople was the capital. It was at this point that the decline of the
Roman Empire began. Gradually, the Germanic Tribes began to infiltrate the
Western Roman Empire and in 476AD when Rome was overthrown, a
Germanic ruler took to the throne. With this he brought over Germanic laws
2
HUMAIRA KHAN ©
Q: What is “the law”?
A: The law is all encompassing; it entails many facets of everyday life. It governs our
behaviour in the form of legal norms. It is to be obeyed at all times by all members of
society, if one fails to comply with the law, punishment is administered, be it as a jail
sentence or remunerations for damages caused. The law is made, governed and
enforced by state organs.
The law is divided into two sections namely, private law and public law.
Private law, deals with the relationship between individual citizens whereas public
law deals with the relationship between the state and the individual.
The divisions of the law can also be interpreted as Formal (Procedural) law and
Substantive law. The procedures that must be followed in legal proceedings are
ruled by formal law. Substantive law is that which determines the content and the
meaning of different legal rules. The different normative systems and the law have
strong links to each other. For example, religion and law overlap in many aspects as
the Western legal tradition is strongly influenced by canon law. Discrepancies
however, do appear as some religious boundaries cannot be enforced by law,
example adultery. Personal morality is not enforced by the law unless it coincided
with legal principles. This is due to the fact that personal morals are based on the
character of the individual. Community mores however, are the collective morals of
the members that make up the community. As with personal ethics, these norms are
only enforceable when it coincides with the legal norms. As communities differ, the
accepted behaviour in each community differs according to the residents.
Justice is equality before the law. In this respect, some arguments can be made that
the law is unjust or just. In regard to Formal law, there are basic requirements that
formal law must comply with to achieve justice. These requirements are that the
rules must be explicitly laid down to show how people must be treated in specific
cases. These rules must apply to all which fall under the same circumstances and
this rule must be implied impartially by an unbiased judge.
Substantive justice however, remedies some cases in which a party may feel that the
result was unjust. Substantive justice concerns the content of the rule and not the
way on which it is applied. In this way, formal law is that part of the law which
regulates the enforcements of substantive law.
1
, Law is also a system of rights. Every rights involves a relationship that is made up of
two parts, the relationship between a legal subject and the legal object, and the
relationship between the legal subject which is the holder of the right and other legal
subjects (they must respect your rights).
A legal subject is anyone who is subject to the legal norms and who also may be the
bearer of rights and duties. A legal object is an object to which economical value
may be attached, be it a car or a person’s good name.
There are four classes of rights, namely real rights, personality rights,
intellectual/immaterial property rights and personal rights.
a) Real rights are rights to physical, material things, eg a car. Real rights are
called rights of ownership, rights of pledge or rights of servitude etc. Rights of
ownership give the owner the right of Ius utendi, fruendi and abutendi. A right
of pledge is when an object is used as collateral (mancipatio cum fiducia,
pignus and hypothec), in this respect, the right to the pledged thing is limited
as it cannot be used or enjoyed until the debt is paid. Rights of servitude are
for example, servitudes of iter give the right to walk over the land of another.
b) Personality rights are the rights that each one of us has to parts of our
personality. Eg the right to physical integrity, the right to good name and
reputation and the right to honour. (actio iniuriarum)
c) Intellectual property rights relate to the creations of the human mind.
Copyright and Patents protect this right.
d) Personal rights is the right to performance. It may be a claim, delivery,
payment or services.
Roman-Dutch law and its origins:
a) The Roman era spanned across 753BC-476AD. The height of the Roman
Empire was during the second half and first two centuries AD. It was during
this period that Roman culture, law and development reached its peak. The
Roman law administered in this period is known as classical Roman law.
However, in the 4th century the Roman Empire split into the Western Roman
Empire where Rome was the capital and the Eastern Roman Empire where
Constantinople was the capital. It was at this point that the decline of the
Roman Empire began. Gradually, the Germanic Tribes began to infiltrate the
Western Roman Empire and in 476AD when Rome was overthrown, a
Germanic ruler took to the throne. With this he brought over Germanic laws
2
