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THE LAW Cheat Sheet (DRAFT) by

Defining the law and the notion of the social contract whilst also formulating an African philosophical critique of the social contract. This will include a discussion of positivism and natural law.

This is a draft cheat sheet. It is a work in progress and is not finished yet.

QUESTIONS ON THE NATURE OF LAW

Law is made for and by the people.
It is not cast in stone and it isn't elevated above criticism. It is also being constantly created.
"It is thus not a completed monument from which you must only lift a veil, but rather an unfinished statue which you must help comple­te."­

WHY DO WE HAVE THE LAW

Much has been written philos­oph­ically about why we have laws and what 'the law' is.
In general, there is no single or correct answer to this question.
We do know that the law presup­poses a SOCIETY.
E.G. one person: no need for rules or laws.
two persons: certain rules will have to be laid down to facilitate peaceful and productive intera­ction between the two people - more than one person will have a claim to existing resources.
group of people: cannot necess­arily agree on rules among themselves on a continuous basis. A need then arises for some kind of structure of authority or government that will make rules for the whole society.
N.B. adherence to these rules has come be known as 'the RULE OF LAW'
How do we justify the RULE OF LAW? - philos­ophers sometimes find the justif­ication for these rules and authority (the rule of law) in the idea of a SOCIAL CONTRACT into which people have entered.

THE SOCIAL CONTRACT: HOBBES

THOMAS HOBBES (1588-­1679) was an English philos­opher.
- best known for his 1651 book Leviathan, in which he expounds on the influe­ntial formul­ation of the social contract theory. In addition to political philos­ophy, Hobbes contri­buted to a diverse array of other fields, including history, jurisp­rud­ence, geometry, theology, and ethics, as well as philosophy in general. He is considered to be one of the founders of modern political philosophy
What would a society without law look like?
According to Hobbes, it would be a state of nature. In such a state, humans act in self-i­nterest and are ruled by instinct and freedom.
Chaos will reign until reason leads people to realise that such a state is unsust­ainable - groups of people realise that if they do not order society, they would exist in a state of uncert­ainty.
Therefore: people decide to enter into a SOCIAL CONTRACT - each person gives up their unlimited freedom in order to have a peaceful co-exi­stence.
In exchange for sacrif­icing unlimited freedom in a state of nature, they receive the guarantee of protection and order from their leaders.
Fear of their own destru­ction makes it possible for indivi­duals to accept the authority of their ruler(gover­nme­nt/­state). The ruler lays down the legal rules that people must follow and they've agreed to.
According to some thinkers, it is only once such a society comes into being that we can start talking about the concepts of civili­sation and the law.

THE SOCIAL CONTRACT: LOCKE

JOHN LOCKE (1632-­1704) was an English philos­opher and physician, widely regarded as one of the most influe­ntial of Enligh­tenment thinkers and commonly known as the 'father of liberi­alism'.
He is equally important to SOCIAL CONTRACT THEORY. His work greatly affected the develo­pment of episte­mology and political philos­ophy.
His writings influenced Volataire and Jean-J­acques Rousseau, and many Scottish Enligh­tenment thinkers, as well as the *American revolu­tio­naries.
His contri­butions to classical republ­icanism and liberal theory are reflected in the United States' *Decla­ration of Indepe­ndence.
Intern­ati­onally, Locke's politi­cal­-legal principles continue to have a profound influence on the theory and practice of limited repres­ent­ative government and the protection of basic rights and freedoms under the RULE OF LAW.
Locke took a more optimistic view of the human nature than Hobbes' state of nature.
According to Locke, the original condition is NOT one of a state of nature (that is chaotic and ruled by self-i­nte­rest), as humans are governed from the beginning by reason and the aim to live peaceful and stable lives.
In a natural state, all people are equal and indepe­ndent, and everyone has a natural right to defend his "­life, health, liberty, or posses­sio­ns."­
HOWEVER - without fixed and ascert­ainable rules that can be applied impart­ially, conflicts cannot be resolved. As such, people enter into a social contract whereby they submit to the authority of the state. The state is allowed to make and enforce rules.
Like Hobbes, Locke thus assumed that the sole right to defend in the state of nature or the natural state was not enough, and people therefore establ­ished a civil society to resolve conflicts in a civil way with help from a govern­ment.

THE SOCIAL CONTRACT: RAWLS

JOHN RAWLS (1921-­2002) was an American political philos­opher in the liberal tradit­ion.**
His theory of justice as fairness describes a society of free citizens holding basic rights and cooper­ating within an egalit­arian economic system. His theory of political liberalism explores the legitimate use if political power in a democracy and envisions how civic unity might endure despite the diversity of worldviews that free instit­utions allow.
His writings on the law of people sets out a liberal foreign policy that aims to create a perman­ently peaceful and tolerant intern­ati­onal.
Rawls built on SOCIAL CONTRACT THEORY but deviated from it.
- He used a hypoth­etical position of people (the parties to the social contract) behind a 'veil of ignorance' to explain the acceptance of a just theory.
Behind the veil, everyone is ignorant of their specific position in society, not knowing their talents, gender, language, or economic position.
Because they are in this 'original position', people would agree to terms in the social contract that are MOST JUST to all in society.

AFRICAN PHILOS­OPHICAL CRITIQUE OF SOCIAL CONTRACT

THE SOCIAL CONTRACT THEORY originated in Western philos­ophical concep­tions.
Different societies have different justif­ica­tions for the law's existence.
The African philos­ophical conception of the law emphasises that the social contract requires 2 things:
(1) Separated indivi­duals in the original position, and
(2) An imagined agreement between those indivi­duals
An African unders­tanding of the law deviates from both of these requir­ements.
Rather, 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 important; but they cannot escape the fact that they are born into a community from which they can never be truly separated.
It involves a recogn­ition (not of an agreement with a rule or state) that all of us must respect one another's dignity* by virtue of our common humanity.
UBUNTU - I am because you are/ a person is a person because of other persons.
  

CHARAC­TER­ISTICS OF THE LAW

We can discern that the following appears the charac­ter­istics of the law:
- Body of Rules and Principles facili­tating and regulating human intera­ction.
- It orders society and gives some degree of certainty.
- The rules are often applied or interp­reted by instit­utions of state (autho­rity).
- The contents of the law depends on the history of the specific country or people concerned.
Law is an integral part of our lives: We have become used to living with the law and being subject to legal regulation that we barely even notice it.
Law functions to ensure order in the relati­onships and intera­ctions between people and things in society.
A lawless country would be marked by arbitr­ari­ness, inequa­lity, uncert­ainty, unfair­ness, unreas­ona­bleness and self-i­nterest; confli­ct-­ridden in which those with the most physic­ally, financ­ially or otherwise powerful would rule.
Thus - law maintains order and justice in the community, making it possible for persons with different and competing interests to live together.
It establ­ishes a myriad of human relati­ons­hips- from domestic partne­rships and marriage to ties between business and trading partners; the relati­onship between people and the state and the relati­onship between people and object­s/t­hings
The law does this specifying the nature and extent of rights, duties, powers and immunities arising in these relati­ons­hips.
It also establ­ishes author­itative systems of conflict resolution - describes how disputes should be resolved.
THE LAW & IDEOLOGY
Law should be more than decrees and rules enforced by state power.
In a democracy, it should reflect the shared values of the majority of the population.
Underlying any legal system, is an ideology; a value system
Economic Values- free market capitalism and socialism
Political Values- democracy/ one-party author­ita­ria­n/d­ict­ato­rship
Social Values- achiev­ement of equali­ty/­mai­nte­nance of class differ­ences
Moral Values- conser­vative/ permis­siv­e/l­iberal
LAW, IDEOLOGY & LEGITIMACY
When the law/legal system does not reflect *shared values (economic, political, social, moral) = LEGITIMACY CRISIS: members of society lose their belief and confidence in the legal system.
Apartheid South Africa - majority of South Africans had no voting rights = legitimacy crisis
Due to the fact that the law is underp­inned by ideology, it is possible to give differing explan­ations of what the law is and should be.
People with differing ideolo­gical beliefs come up with differing explan­ations of what the law is and should be.
 

NATURAL LAW & POSITIVISM

THE LAW & JUSTICE: GENERAL
From the earliest times, justice was regarded as an ideal for any legal system.
Justice does not have fixed content or meaning. There a myriad of different perspe­ctives on what justice entails - something that humans have reflected on and philos­ophised about for centuries.
The Ancient Greek philos­opher Aristotle drew a distin­ction between distri­butive justice and corrective justice.
Distri­butive Justice means that there must be an equal distri­bution among equals.
Corrective Justice aims at restoring inqual­ities.
Equality is usually and essential element of justice.
ADJECTIVE (PROCE­DUR­AL)­/SU­BST­ANTIVE (MATERIAL)
Procedural Law: comprised of the legal rules and processes according to which a court reaches its decision or solution.
Substa­ntive Law: consists of the material legal rules.
*Our legal process strives towards formal­/pr­oce­dural justice in the following respects:
- it arises from the overriding principles that like cases must be treated alike. The system of precedent is the judicial instrument which ensures this. Criminal Procedure regards an accused person as innocent until proven guilty. The process requires that both sides be heard, a person must appear before court within a reasonable time, and that no force or undue influence may be used to induce an accused to confess to a crime.
S35 of the Consti­tution with respect to Criminal Law
Material Law
The content of material law/legal rules does not necess­arily coincide with justice.
E.G. The Groups Areas Act 42 of 1950 embodied social injustice - *system of racial influx control that led to the disint­egr­ation if families and introduced other social evils.
The essence of justice and equality was negated through legisl­ation (material law) - only certain sections of the community were adversely affected.
LEGAL POSITIVISM & NATURAL LAW
Should the law embody justice to qualify as law?
Legal Positi­vism: legal positi­vists answer the question of the law by refere­ncing that which "­is" and not that which it ought to be
According to this approach, it is irrelevant whether the law is fair or just
Morality and law are distinctly separate from each other; law is set down in statute books, in rules and in court decisions.
Only rules that are given the force of positive law (by the relevant author­ity)* can be regarded as law.
Defini­tion: an approach to law where laws are recognised as valid if they have been enacted by the sovereign, regardless of whether they are fair or just.
According to legal positivism, judges have an almost mechanical function merely to apply the law: ius dicere non facere ("judges speak the law; they do not create it")
Natural Law
In direct contrast to positi­vism.
Law has a moral dimension - the law is not only that which is promul­gated (given positive content), but what ought to be.
Moral code or a set of moral principles that exist irresp­ective of human intera­ction or positive law.
Higher norms against which human positive law can be judged.
If positive law conflicts with these norms, it is unjust.
UNJUST LAW = NOT LAW
The legality of legal rules for natural lawyer depends on the moral content of laws.
Defini­tion: an approach to law where laws are recognised as valid only if they comply with universal principles of morality and justice.
The phrase 'natural law'' indicates that these norms are found in the harmony and order of nature a or in human nature.
They apply univer­sally, for all times and places. No legisl­ature is necessary to impose them or give them content.
Passive disobe­dience; civil disobe­dience - must a legal rule be obeyed even if it is regarded as unfair or unjust?