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FSAL TERM 3 NOTES
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These notes are a detailed and easy to follow exploration of the rule of law and legal culture during the period of , focusing on case law to guide understanding.
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FSAL TERM 3 NOTESThe rule of law and legal culture
Rule of law
Supremacy of the law over and above the arbitrary exercise of power
The law is the big daddy!!! (Simon, 2023)
o The law is supreme when it is generally accepted by the society it governs that it commands
ultimate obedience over and above the obedience owed to other citizens or institutions. (law
> parents, boss, religion)
o Order over anarchy (ensures fairness and peace – conflict resolution – by having general
rules that all must obey)
Equality before the law above differential treatment of different class of persons
o Ruler = ruled (regardless of the power you hold, all should be held accountable to the same
laws)
o Big = small (big corporations are not exempt from laws applicable to individual merchants.
No matter how rich or poor – law applied the same)
o Rights must be equally guaranteed where appropriate. E.g., attorneys held to legal practice
act but not accountants. Or provisions for disabled people not applying to able bodied people.
Differentiation in the law does not mean we are unequal before the law.
o There is inequality before the law if the differentiation is unjustifiable. E.g., Apartheid.
Reasonably determinable laws
o Public, not secret (citizens need to be able to anticipate consequences of their actions in order
to conduct their affairs). (Need to know what the law is in order to follow).
o Clear but not convoluted. (Can’t expect everyone to understand all laws. Need to be able to
find people or services to explain more complex legal issues. However, basic laws should be
clear and understandable, like daily laws such as rules of the road. Have to be able to find and
understand the law!!!)
Enforcement of the law by empowered but constrained agencies.
, o Police and courts. Once a judgement is passed in court, it must be enforced by police
services. Agents of the state cannot have free reign. Statues regulate conduct of courts and
police. Internal rules govern how the court must work.
o Lawyers and advocates – should be able to use the law to our benefit – to protect us and
assist us in fighting for our needs and rights. Legal practitioners assist in this. To qualify for
legal aid – less than R8000 a month.
Legal culture
1. Comprised of the unwritten principles that guide those who participate in the creation of the law,
enforce the law and interpret the law. Legislation creates, executive enforces and judiciary interprets.
2. Created by those who ‘handle’ the law. Our legal culture is influenced by the un/conscious beliefs
etc of those who handle the law. How legal practitioners interpret the law determines the legal
culture we live in.
Legal culture is made up of unwritten principles as it deals with subconscious beliefs. Those who
make it have subconscious beliefs about the legal system, certain laws, litigants, individuals, the state
etc. everyone has different ideas about how the legal system should function.
- Individual liberty or state security?
- Accountability? Did parliament thoroughly debate the bill before them before it became an act of
parliament? Did parliament hold the executive to account?
- Adherence to the law? Did the president follow the law of the country? How did the legislature
and executive deal with the law under apartheid? Did the judiciary curb parliament powers or let
them have free reign during apartheid?
Who creates legal culture? Doctrine of separation of powers – the three branches of government.
[Parliament (legislative), where the members of parliament create the laws. Executive is made up of
the president and the government. Judiciary – courts interpret the law and settle disputes.] We as
citizens are also part of creating legal culture. Our opinion can sway things. We can protest.
,The four readings (not prescribed)
Dugard – The Judicial Process
o Three important points are made in chapter 11
1. Judges make the law. [They do not simply declare it, but through interpreting the legal
issue and applying facts to the case and passing judgement, they are involved in the act of
creating law. (At the time this was a very controversial claim, because under apartheid
parliament was considered to be the supreme law-making body. He says that parliament is
not the only law-making body. Judges are a branch of government and thus Apartheid
government was incorrect is assuming power to develop the legal system and laws was
restricted to parliament. When the law was vague, judges were empowered to
develop/create the law. The idea that apartheid judges absolve themselves from law
making was to distance themselves from the morally unjust laws, because they assert they
do not make the law and cannot change things.) Dugard argues judges shouldn’t have
adopted this fake aura of neutrality and inability to change things. Judges are not
automatons employed to do Parliaments bidding. They should not shrink their
responsibility.]
2. Judges are human too. [they are not immune from inarticulate premises – likes, dislikes
and prejudices that subconsciously influences judges and their decisions. Legal positivism
is not neutral in the face of an unjust legal system. The excuse of the law is what it is and
must be followed is not good enough. Judges adopting legal positivism is a political
choice. Judges can and do have power to change things. Judges failure to acknowledge
their adherence to legal positivism was cowardly and a deliberate legal choice, not
neutral. Judges should not pledge allegiance to the status quo simply because it suits them
(the political elite white men!). had judges recognised their inarticulate premises such as
their racism, perhaps they would have been more willing to entertain more creative legal
arguments and the expressly political nature of the laws they enforced.]
3. What should apartheid era judges have done? [we cannot look to courts to solve all
issues, but they do have a role as they can pass judgements on pressing social issues of
, the time.] Apartheid judges cannot have declared the whole system unjust but they also
didn’t have to sit back and do nothing. Dugard argued that judges could either have
resigned or enforced the law without question. Or they could remain on the bench and
criticise the law from the bench. Or they could criticise the law extra-curially – off the
bench in public writing.
Hugh Corder – Crowbars and cobwebs
o Focus is on administrative law (branch of public law controlling legal controls of the
executive)
o Some form of public order is necessary in society to prevent anarchy
o The law is but one form of social control, others being religious institutions, free press etc.
we can control society outside of the law.
o The law is not politically or ideologically neutral – it is value laden (law should consider
morality – he is a natural lawyer)
o A.) Five areas in which the apartheid governments executive autocracy is most
prevalent: Executive autocracy (unrestrained power of the executive). By the 80s this was
rampant.
1. The Constitution Act of 1983 – gave effect to the Tricameral parliament. This
constitution merged head of state and head of government into one person.
2. State of emergency – the expansion of security laws demonstrate executive
autocracy as they were not actually used to protect the state, but the white elite. Police
forces often had excessive power through law in name but not in substance.
3. Continued governance of ‘homelands’. They were regulated and ruled with brute
force. Instead of leaving black people to rule themselves, the NP had extensive control
over the regulation and development of homelands.
4. Discriminatory laws with unfettered discretion. Increased race-based laws. Placed
an onus on administrators to enforce the law (they have to segregate white and black
people – the law says you have to be racist). MUST do things.
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