Study unit 5

Classification of the law

 Outcomes
• Explain why a logical and systematic classification of
the different legal disciplines is necessary;
• Distinguish between national and international law;
• Compare the public law and private law; and
• Classify and explain the differences between the
different legal disciplines.
 Reading
• Madlingozi chapter 7.
 Example
• X contacts with Government Department Y to remove
garbage from a residential area during strike action by
municipal workers. After 5 days of removing garbage the
contract workers of X decide to join the municipal workers in
the strike. Y cancels the contact with X, reasoning that X is not
performing.
• X finds out that a competitor Z, bribed the municipal manager
to cancel the contract and award the contract to Z. X is also of
the opinion that Z threatened X’s workers and that is why they
are striking.
 Introduction
• Law can be divided into many different branches or areas.
• In real life legal problems do not come neatly labelled as
problems of delict or contract or property, but will often
straddle several subjects.
• There is nor right or wrong way of dividing areas of law.
• Every textbook has a slightly different way of dividing and
describing the various areas of law
• Thousands of individual rules that are derived from sources
of law relate to almost every aspect of social life.
• It is possible to distinguish certain categories or divisions of
rules; this process of distinction is called the classification of
law.
• Classifying the law into sub-disciplines or fields enables
lawyers and other to create a better systematic
understanding of the law and it makes the law easier to use.
 Why classification?
Makes rules easier to use
 Makes sense of legal rules
 Problem-solving

It is not possible to segregate the various sub-

disciplines of the law
 National law v International law
• National Law
• Laws enforced within the boundaries of a state
• International Law
• Laws regulating the relationship between states at a
supra-national level
 International Law
• International law is used every day.
• International law permeates many aspects of modern
life.
• The principal subjects of international law are states
(countries)
• i.e. regulating the relationship between states at an
international and/or regional level, collectively
referred to as the supra-national level.
 National Law
• International law constitutes a very small proportion of
all the rules within a state such as South Africa.
• A distinction is made in S.A law between PRIVATE and
PUBLIC law.
• Public law – regulates the structural organisation of the
state, the relationship between different organs of state
and state and citizen.
• Private law – regulates the relationship between
the subjects of the state, i.e between different
natural and/or juristic persons.
• Hybrid sub-disciplines – do not seem to fit
exclusively within the category of public or
private law
 Private and Public Law
• The terms ‘public law’ is widely used to express
areas in which the state is always extensively
involved and the relationships tend to be ‘vertical’ –
such as administrative law and criminal law.
• ‘Private law’, areas in which individual citizens have
‘horizontal’ legal relationships with each other.
• This distinction is becoming increasingly strained, however,
mainly because the modern state is inclined to intervene
more and more in what used to be ‘private’ areas.
• For example Labour Law – years ago, this area was know as
‘the law of master and servant’ = simply part of contract law.
• However, state intervention has been so extensive that it can
be classified as an area of public and private law.
 Public Law
• The state is the key player in so-called public law
relationships.
• This is because the public law regulates the
relationship between government and the people
(or subjects).
• Government = regulator and bearer of authority,
and
• People = regulated
• Public law provides the rules governing the relationship
between state institutions and functionaries of the state
(government officials)
• Public law relationship is often referred to as a vertical
one which applies between the state and private, non-
state subjects.
• It could also be classified as a horizontal relationship to
the extent that it regulates the relationships between
state actors.
 Constitutional Law
• Mostly deals with the Constitution
• Constitution regulates the interrelationship between organs
of state (co-operative government Chapter 3 of the
Constitution)
• It limits the potential abuse of state power by providing the
state must respect, protect, promote and fulfil the rights in
Chapter 2 (Bill of Rights).
• Constitutional law will introduce you to the meaning and
implications of constitutionalism.
 Administrative Law
• Aims to regulated the administrative duties, functions and powers of
the executive authority.
• Provides laws regulating how the state governs and how it should go
about its duties.
• Therefore, it regulates state administrations or issues of state
governance.
• At the core of administrative law is section 33 of the Constitution.
• The Promotion of Administrative Justice Act 3 of 2000 (PAJA) sets
out the details of South African administrative law including the
definition of ‘administrative action’.
• Section 33 of the Constitution.
• People applying for id’s or birth certificates
at Home Affairs and then waiting years to be
helped or then refused any help.
 Criminal Law
• Deals with matters where people are presumed to
have committed crimes.
• It defines various kinds of human conduct as crimes or
offences
• (lawyers generally use the word ‘crime’ for common-
law crimes, which tend to be fairly serious, and
‘offences’ for statutory crimes, which range from the
trivial (traffic offences) to the serious (drug offences).
• It is divided into substantive and adjectival criminal
law.
• SUBSTANTIVE CRIMINAL LAW – makes provision for
various crimes against the state.
• ADJECTIVAL CRIMINAL LAW (Criminal Procedure)
– the law of criminal procedure that lays down
the procedure by which alleged criminals are
brought before the court and tried for alleged
offences.
• Procedural law (adjectival) relates to ‘procedure’, by
which we mean the body of rules that governs the
way in which cases are brought to court, conducted
and adjudicated.
• For example, the law of criminal procedure tells us
what will happen to a person who is accused of
committing a crime. But the question of what
makes one’s conduct a crime in a particular
situation is a question of the substance of the act.
Therefore, criminal law is a substantive branch
of the law that describes in what
circumstances a person may be found guilty of
murder, rape, theft and so on.
Criminal procedure describes the process that
must be followed for dealing with suspected
criminals, and it is thus part of procedural law.
 Substantive Criminal law
• State: High treason
• Family: Common law abduction
• Public welfare: Corruption
• Person: Rape or assault
• Property: Robbery or arson
• Administration of justice: Contempt of court
Substantive Law v Adjective Law
• Substantive law
• Substance of legal rights and duties

• Adjective law
• How one goes about enforcing or protecting
rights and duties
Public law v Private law

Public law Private Law

State and
subjects

Organs of
state
e
Subjects of the stat

Structural
e
organisation of stat
 National law International Law

Substantive Law Procedural Law

Criminal
Public Law
procedural law

Civil procedural
Private Law
law

Law of evidence
 Next class
• Read Madlingozi 246 – 256.