FSAL SUMMARY NOTES
LECTURES 1-15
MOST IMPORTANT KEY POINTS
**These are key points taken from Prof. Naude’s PowerPoint presentations and based on text from “FRESH
PERSPECTIVES: INTRODUCTION TO SOUTH AFRICAN LAW BY MEINTJIES-VAN DER WALT”.
SOME parts are directly quoted, others have been simplified by me. I do not take credit for any knowledge
expressed in this document, only the summary of notes and easy access to key points that I found important**
Bibliography
- Naude, Barnard. “FSAL Lecture [1-15]” 24 Apr. 21
- Meintjies, der Walt. Introduction to South African Law. 3rd edition, Pearson Education South Africa, 2019.
Lecture 1 and 2
Monarchy: king has sovereignty make the law and enforce it
when laws not followed: negative consequences are called
sanctions.
Democracy: law is made ‘by the people, for the people and must
therefore be obeyed by the people’ (5).
law has territorial jurisdiction:
applies in a particular location in the place where those individuals
are located.
equality before the law as the first principle of the rule of law
Peace and order are therefore the law’s primary aims.
1
, - Functions of law
- “Setting pre-existing, impartial rules, based on criteria that can be
used to judge and settle conflicts.
- Protecting the rights and freedoms of the individual and groups.
- Facilitating or making change possible.
- Providing a mechanism to legitimize actions by the state.
- Protecting and preserving the legal system.
- Providing conduct to save society
- Providing institutions and procedures to settle disputes”
(slide 22)
Positivism vs natural law
Natural law:
- Follow a morality against which all law must be measured for its
validity.
- valuesaresaidtobe‘natural’,that is eternal or universal.
- E.g. ten commandments
- Human rights
Positivism
2
, - values not relevant for determining a law’s validity.
- e.g. according to positivism, killing another person is only a crime
if the law there says it is one
- laws are only laws when they have been declared to be so.
Lecture 3
Colonialism
1. SA Law: each colony in the British empire used, adapted and
developed the British endowment [i.e. the British system of
government and law] in different ways’.
- endorsing segregation through the ‘separate but equal' doctrine, the
South African courts were ‘nearly four decades behind the United
States Supreme Court’.
- In the South Africa of this time, all white knowledge was derived
from outside – African ideas and law ‘were deemed to be either
non-existent or uncivilised’.
- Used Roman and Renaissance legal texts to make law
- These texts were then treated as though they embodied the inherent
rationality of law and so this rationality was located in Europe and
not in Africa.
- Seen by racist state that white law contained the core of historical
rationality, not simply the commands of the advantaged.
3
LECTURES 1-15
MOST IMPORTANT KEY POINTS
**These are key points taken from Prof. Naude’s PowerPoint presentations and based on text from “FRESH
PERSPECTIVES: INTRODUCTION TO SOUTH AFRICAN LAW BY MEINTJIES-VAN DER WALT”.
SOME parts are directly quoted, others have been simplified by me. I do not take credit for any knowledge
expressed in this document, only the summary of notes and easy access to key points that I found important**
Bibliography
- Naude, Barnard. “FSAL Lecture [1-15]” 24 Apr. 21
- Meintjies, der Walt. Introduction to South African Law. 3rd edition, Pearson Education South Africa, 2019.
Lecture 1 and 2
Monarchy: king has sovereignty make the law and enforce it
when laws not followed: negative consequences are called
sanctions.
Democracy: law is made ‘by the people, for the people and must
therefore be obeyed by the people’ (5).
law has territorial jurisdiction:
applies in a particular location in the place where those individuals
are located.
equality before the law as the first principle of the rule of law
Peace and order are therefore the law’s primary aims.
1
, - Functions of law
- “Setting pre-existing, impartial rules, based on criteria that can be
used to judge and settle conflicts.
- Protecting the rights and freedoms of the individual and groups.
- Facilitating or making change possible.
- Providing a mechanism to legitimize actions by the state.
- Protecting and preserving the legal system.
- Providing conduct to save society
- Providing institutions and procedures to settle disputes”
(slide 22)
Positivism vs natural law
Natural law:
- Follow a morality against which all law must be measured for its
validity.
- valuesaresaidtobe‘natural’,that is eternal or universal.
- E.g. ten commandments
- Human rights
Positivism
2
, - values not relevant for determining a law’s validity.
- e.g. according to positivism, killing another person is only a crime
if the law there says it is one
- laws are only laws when they have been declared to be so.
Lecture 3
Colonialism
1. SA Law: each colony in the British empire used, adapted and
developed the British endowment [i.e. the British system of
government and law] in different ways’.
- endorsing segregation through the ‘separate but equal' doctrine, the
South African courts were ‘nearly four decades behind the United
States Supreme Court’.
- In the South Africa of this time, all white knowledge was derived
from outside – African ideas and law ‘were deemed to be either
non-existent or uncivilised’.
- Used Roman and Renaissance legal texts to make law
- These texts were then treated as though they embodied the inherent
rationality of law and so this rationality was located in Europe and
not in Africa.
- Seen by racist state that white law contained the core of historical
rationality, not simply the commands of the advantaged.
3
