Law, Morality, and History of South African Law Notes

What is the Law?

The law is often compared to a tree with roots, a trunk, branches, and fruit.
Before engaging with the specifics of the law, it's important to consider preliminary questions such as:
- What is law?
- What informed the need for law?
- On which ideas, theories, or philosophical underpinnings is the law based?

Law affects our lives in many ways, from electing leaders to driving.
There is no single, universally accepted definition of law.
- Some describe law as a body of rules or regulations facilitating and regulating human interaction.
- Others define it as a system of rules that regulates or controls the behavior of citizens in a politically organized society.
- Still others view law as a set of norms distinguishing good from bad, reflecting the shared values of society.
Law is composed of rules, norms, or regulations.

Consider a scenario: If a person is alone on an island, there's no need for laws.
However, if more people arrive, the need for laws arises.
Law presupposes the existence of a society within a state.
The purpose of law is to preserve and develop individual and community interests.
An interest can be any right of a community or individual, such as the right to personal property or life.
Law exists to create order and harmony in relationships between individuals, property, and institutions.
Law balances the conflicting ideas of freedom and order.

It's not feasible for a large group of people to continuously agree on rules among themselves.
There is a need for a structure of authority or government to make rules for the whole society/community.
Law is made by the people, for the people.

Early societal groups based behavioral rules on local customs and spiritual beliefs (Natural law), enforced by powerful individuals or groups.
As societies became more complex, there was a greater need for more formal and complex behavioral rules or laws.
Two main theories upon which the law is based are:
- Natural Law Theory
- Positive Law Theory

Natural law is based on universal and eternal norms, or acceptable standards of behavior, that arise from human reason.
It is also called normative law.
Eternal norms are the unchanging principles of law that define what is right, just, and moral.
Natural law theory has a moral element.
Natural law is viewed by some as law given by a God figure.
In terms of natural law theory, the legality of legal rules depends on the moral content of the laws.

According to positivists, written law is the only authority.
Written law is the law that is written down in statutes, regardless of whether it is right or wrong.
Focus should be on what the law is, not what it ought to be by moral standards.
Positivists believe that human beings made the law, and it did not always exist.
Positivists also believe that the content of the law can change over time and is a product of a particular state; hence, different countries can have different laws.

Norms are a set of practices/rules/laws regulating human conduct.
Examples of norms:
- Religion and customs
- Individual morality or ethics
- Community mores (Convictions of society)
Not all norms amount to legally binding laws/rules.

Morality/ethics refers to the values of individuals as imposed or influenced by societal organization, personal belief, culture, environment, and times.
Individual ethics are also informed by a person’s or a collective’s understanding of what is right or wrong.

“Community mores” are the norms of the whole community or group within that community.
They are collective morals, e.g., Ubuntu.
How can community mores be determined?
Through majority?
If the morality of the majority can be determined, should the law enforce morality in all cases?

Remember that not all norms and moral/ethical standards form legal rules.
Why are norms or ethical standards still important?
You as first years will soon be taking an oath, why go through that exercise when the oath is not law?
The answer could be that not all aspects of human interaction can be successfully regulated through law only.
Ethical standards also bind one’s conscience and could prevent one from engaging in wrongful activities.
Ethics also cover certain behavior that is probably not covered by the law.
The law also tends to be reactionary rather than proactive in curbing what is wrong in society.

Sometimes legal rules and community mores coincide.
- Examples:
  - Theft (thou shall not steal) – morally wrong to take someone else’s property
  - Perjury (lying under oath) – morally wrong not to tell truth
However, the law does not always take cognizance of community mores.

A real challenge comes where the law is in conflict with moral values:
- Legal recognition of same-sex marriage – Civil Union Act 17 of 2006.
- Adultery is not a criminal offence but it is considered immoral.
- Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 (CC).