Definition
What is Law?
Law is a system of rules recognised and enforced by the state to regulate conduct and resolve disputes.
The Inscription Above the Gate
Every legal system begins with a question: what makes a rule "law"? Not custom alone. Not morality alone. Law is distinguished by its source, form, and enforcement.
Three Theories
- AUSTIN's Command Theory — law is a command of the sovereign backed by the threat of a sanction
- HART's Primary/Secondary Rules — primary rules impose duties; secondary rules create, modify, and adjudicate primary rules
- FULLER's Inner Morality — law must satisfy eight procedural requirements (generality, promulgation, clarity, non-contradiction, non-retroactivity, possibility of compliance, constancy, congruence)
Natural law theorists argue law must conform to moral standards to be valid. Legal positivists (Austin, Hart) argue law's validity depends on its source and form, not its moral content.
Exam trap: do not confuse "what is law" with "what is good law". Positivism allows unjust laws to be legally valid. Natural law denies this. SA's constitutional order leans toward a value-based approach closer to natural law.
Law & Morality
Two Paths: Law and Morality
Law and morality overlap but are not identical. The Constitution bridges them through values.
Similarities
- Both regulate conduct and prescribe how people should behave
- Both identify wrongdoing and attach consequences
- Both reflect a community's shared values (to some degree)
Differences
- Law is enforced by state institutions; morality is enforced socially
- Law is formal and systematically promulgated; morality is informal
- Breaking the law attracts legal sanction; breaking a moral rule attracts social disapproval
- Conduct can be legal but immoral (e.g. some forms of exploitation) or illegal but moral (e.g. civil disobedience)
The apartheid legal system was technically "law" (positivist view) but morally repugnant. SA's post-1994 Constitution deliberately embeds values (dignity, equality, freedom) to prevent a repeat — law must be tested against foundational values.
Functions
What Law Does
Law serves three core social functions: social control, dispute resolution, and social change.
The Three Pillars
- SOCIAL CONTROL — law regulates conduct, prevents harm, and maintains order. Criminal law, traffic law, and public health regulations are examples.
- DISPUTE RESOLUTION — law provides mechanisms (courts, ADR) for resolving conflicts peacefully. Without law, disputes would be settled by force.
- SOCIAL CHANGE — law can transform society. The Constitution and subsequent legislation abolished apartheid and entrenched rights previously denied.
Additional Functions
- Protecting rights and freedoms (rights-protecting function)
- Distributing resources and powers (allocative function)
- Conferring legal status (marriage, citizenship, legal personality)
Law is not neutral. Which disputes are resolved, whose values are protected, and what social changes are pursued — all reflect choices. The Constitution explicitly commits SA law to the values of equality, dignity, and freedom.
Rule of Law
The Rule of Law Fountain
Everyone — including the state — is subject to law. Power must be exercised rationally and lawfully.
The Fountain's Source
Section 1(c) lists the rule of law as a founding value. It means no one is above the law — not the President, not Parliament, not the courts themselves.
Four Requirements
- Laws must be publicly known and accessible
- Laws must be clear and certain — people must be able to know what is required of them
- Laws must be applied equally — no one is exempt
- Public power must be exercised rationally (Pharmaceutical Manufacturers Association)
Key Case
Pharmaceutical Manufacturers Association of SA v President2000 (2) SA 674 (CC)All exercises of public power must be rational. A decision with no rational connection to a legitimate government purpose is unconstitutional.
Facts. The President signed a proclamation bringing the Medicines and Related Substances Control Amendment Act into operation. The pharmaceutical manufacturers challenged this on the ground that the President had failed to comply with the procedural requirements of the Medicines Act. The manufacturers argued the proclamation was irrational.
Legal question. Is the exercise of public power subject to a constitutional requirement of rationality, and if so, what does this require?
Judgment. The Constitutional Court held that a proclamation that is irrational or procedurally defective is inconsistent with the Constitution and invalid. The rule of law requires that all exercises of public power be rational and procedurally proper. Courts can review executive action for irrationality.
Significance. The leading case on rationality review of executive action under the rule of law principle (s 1(c)). Establishes that administrative and executive action must pass the rationality test. The rule of law, as a founding value, empowers courts to review all public power — not just administrative action under PAJA.
Exam tip. Use for: rule of law (s 1(c)), rationality review, executive action, constitutional review of public power. Remember: rationality is a lower threshold than reasonableness (PAJA) — but it is not toothless. A decision with no rational connection to a legitimate purpose is invalid.