LEGAL DISCOURSES

Legal Discourses

Legal discourses

I agree wholeheartedly with the proposition that the law and legal institutions cannot be divorced from the value system of the society in which it operates. This is evident in that the single entity to which all law in South Africa is subject (the Constitution) is based, almost entirely on the ideals and values of what is seen to be the South African public. In the first provision stated in the Constitution, it is given that the Republic of South Africa is "...one sovereign, democratic state founded on the values of human dignity, the achievement of equality and the advancement of human rights."

In other words, ideally, every single law in South Africa may not infringe on the above rights vested in them by the Constitution. This means that the law is subject to, essentially, the voice of the people and to the values with which the majority of people deem to be veritable. It is evident in South Africa's turbulent history that the law and legal institutions are directly based upon the value systems of the society at the time as it is today.

There are several questions to be addressed. First I shall address the issue of whether or not the law and legal institutions are based upon the value systems in which they operate by establishing the objectives of the law and how these are influenced by value systems. I shall then review the legal institutions of Customary law and 'indirect rule', concentrating specifically on the period between 1902 (the British occupation of the Cape) and 1927 (the codification of Customary law) and concentrating on the areas of the Cape and Natal. Subsequently, I shall compare the law of this period to the value systems present at the time in order to illustrate the dependence of the law on values.

Firstly, Kleyn and Viljoen point out that the law presupposes a society. They state that the principle reason that the law exists is because:

A large group of people cannot agree on rules among themselves on a continuous basis. A need for some kind of structure of authority or government that will make rules for the whole society develops.

The law is based upon the collective desires of the community and it illustrates what the community believes is the best way to live or, in other words, it represents the community's values. An example of the community's values playing the key role in legal discourse is shown by an extract entitled "Aspects of policy in the evolution of our common law by MM Corbett JA. In this extract, Corbett JA states that:

Policies such as public policy, boni mores, the norms of conduct required by society, the legal convictions of the community, the general standards of reasonableness...are the criteria to be applied when the court is confronted with a legal problem in the common law for which there is no precedent...

From the quote above it can be followed that depending on a particular society's value system, certain ...