(5) Divisions of Law - Summary of Study Unit 5 from the ILW 1501 Study Guide PDF

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Summary of Study Unit 5 from the ILW 1501 Study Guide...

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ILW 1501

Learning Unit 5 — Divisions of Law This learning unit introduces you to the different divisions (or branches/fields) of South African law. We divide the South African law into two main divisions, namely public law and private law. You’ll also be able to explain how public law and private law are further divided, and some of the subdivisions in those divisions."

The Main Divisions of South African Law Two of the major (main) divisions in our law are “public law” and “private law”. Public law is that which relates to the welfare of the Roman State. Private law is that which relates to the welfare of particular individuals. For certain matters are of general, whereas others are of private, importance." Public law then regulates relationships that are concerned with public interests (that is, general interests or the interests of the community). When a crimes committed, the act goes against the interest of the community and must be punished. Such an act becomes the concern of the public law. If the same act harms the interests of a private person, the act then become a concern of private law as well." For example, if A steals B’s property, A will be prosecuted and punished by the state because theft is not in the public interest. This will be done in terms public law. In terms of private law, B will also be able to claim compensation for the damage he has suffered. He will institute private law action against A, because private law ensures that his individual interests are protected."

The Divisions of Public Law Public International Law This division of the law is concerned with the relations between states (e.g. the law of war and peace, the law of international organisations such as the UN and the law of international treaties)"

Constitutional Law This division of law is concerned with the constitution of the state (how the state is formed) and its organisation. It also governs he powers of the organs of state (organs such as parliament, the courts the cabinet, and so on)."

Administrative Law This division of law controls the administration of the state in general. It determines the way in which the state bodies, state departments and numerous boards as well as ministers should exercise their powers, particularly in their relationships with citizens. The rules ensure that these bodies or people do not exercise their powers unfairly or arbitrarily (that is, without motivation)"

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Criminal Law Criminal law states which acts are crimes and what are the penalties (punishments) imposed by the state for the commission of these crimes."

Law of Procedure The law of procedure may be divided into three subdivisions:"

a. Law of civil procedure There is a certain process (or method) by which private-law disputes are brought before the courts. The rules are concerned with this course of action. They prescribe, for example, how the summons must be served on the defendant, how and when pleadings must be drawn up and lodged, what the jurisdiction of each court is, the fact that each party must have an opportunity to be heard, and so on."

b. Law of criminal procedure Criminal procedure is concerned with the way in which someone suspected of having committed a crime is prosecuted and tried

c. Law of evidence The law of evidence is concerned with how evidence must be presented before the court."

The Divisions of Private Law Law of Persons This division of law is concerned with persons as subjects of the law, a legal subject’s beginning (how the person comes into being), a legal subject’s status (legal position) and a legal subject’s end (how a person comes to an end in the eyes of the law)."

Family Law This division of law is concerned with the legal relationship between spouses, the legal relationship between parent and child, and the legal relationship between a guardian and the person who is the subject of the guardianship. Family law covers marriage and its consequences, as well as relationships within the family."

Law of Personality This division of law is concerned with what we call “personality rights”. We have rights, for example, as far as our body, our reputation, and our dignity are concerned. If someone publishes defamatory statements about us (statements that are bad or perhaps untrue and that are likely to damage our reputation), he may be forced in terms of the law of personality, to pay a sum of money to us as satisfaction."

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ILW 1501 Law of Patrimony The relationships in terms of this law concern persons and their means. When we speak of “means”, we are speaking about whatever a person has that can be given a value in money. Law of patrimony covers a very wide field and may be subdivided as follows:" a. Law of Things (law of property)" Things are classified as “movables” or “immovables”. Movables are things that can be moved from one place to another without being damaged (e.g. a car, a book or even a wooden house which is not built into the ground). Immovables are things that cannot be moved and that are fixed (e.g. land, and what is attached to it, for example a house)." Ownership is considered to be the most comprehensive right in property (the right that includes everything) and is the most complete real right because you can do whatever you like with your property. This very comprehensive right may be limited in certain circumstances. You may not exercise your right in such way that it infringes upon the rights of other legal subjects" b. Law of Succession The law of succession is concerned with who inherits from a person who dies, in other words who receives the property of the deceased. The person who dies (the deceased) may have written a will before she died, and stated in the will what is to be done with her property, that is who is to inherit her property." If there is no will, the deceased’s property will be given away in accordance with the rules of what is called “intestate succession”. These rules also come into operation when someone has not left a valid will." c. Law of Obligations An obligation is a legal relationship between two or more parties in terms of which one party has a right against another party for performance and the other party’s a corresponding duty to perform. Three ways in which obligations arise, namely agreement (ex contractu), delict (ex delicto) and unjustified enrichment. This subdivision can be further divided into the following:" * Law of contract (ex contractu): a buyer can, for example, claim delivery of the thing bought and the seller has a duty to deliver it" Law of delict (ex delicto): if Tom breaks a valuable statue in your garden, you have a * right to claim compensation. Tom would, for example, probably either have to replace the statue or pay you for it. Tom has a duty to compensate you" * Unjustified Enrichment: In accordance with the law, no one may be enriched (increase in wealth) without justification, at the expense of another. There is no valid legal ground on which one individual can obtain a benefit at the expense of another."

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Other Areas Law Mercantile Law: a large and very important field of law. It is neither purely public not purely private law. It includes all the law which relates to the broad field of commerce: company law, insolvency, negotiable instruments, tax law and so on."

Labour Law: a very important branch of law today which has connections with private law and public law. It is concerned with the relationships between employer and employee and includes all labour legislation."

Conflict of Law: concerned mainly with the question of which private law system applies if more that one private law system is involved. If A and B enter into a contract in Finland and the case comes before a South African court, which private law system should be applied: the law of Finland or the law of South Africa? International conventions between states may also play a role in conflict of laws and therefore private as well as public law become involved in conflict of laws."

Legal philosophy (jurisprudence): this is the field of law which looks at law from a philosophical perspective. Legal philosophers ask questions such as “What is Law?” Or “What should the function of the law be?” Different perspectives have emerged, such as positivism, the natural-law approach, feminism and Critical Legal Studies. This law division is important because through a philosophical evaluation of law, a better understanding of the law and a critical approach towards it is acquired, which can be of value in determining the need for legal reform."

LAW PUBLIC LAW

PRIVATE LAW

1. International Law

1. Law of Persons

2. Constitutional Law

2. Family Law

3. Administrative Law

3. Law of Personality

4. Criminal Law

4. Law of Patrimony" a. Law of things" b. Law of Succession" c. Law of Obligations" i. Law of Contract" ii. Law of Delict" iii. Enrichment

5. Law of Procedure" a. Civil procedure" b. Criminal procedure" c. Law of Evidence OTHER AREAS OF LAW 1. 2. 3. 4.

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Mercentile Law" Labour Law" Conflict of Laws" Legal Philosophy

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