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Legal pluralism test 1 revision
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- 1Define legal pluralism & the narrow interpretation thereofThe co-existence of various officially recognized state laws - Common & Customary law operating in a single society. Law = norms created by state & rules governing application, ascertainment, etc.
- 2Explain the broad interpretation of legal pluralismAlso = "deep" LP; factual situation existing in society with various legal systems; de facto existence of different systems irrespective of recognition (simply = status); not founded upon relations of unequal power
- 3Define Customary law w.r.t. South AfricaCustoms & usages traditionally observed among the indigenous African people of SA and forming part of the culture of those peoples
- 4Give the definition of "culture" as defined by BennettCulture implies "high intellectual or artistic endeavor"; "people's entire store of knowledge & artifacts, especially languages, beliefs, laws that give social groups their unique characteristics"
- 5Who are the indigenous African people of SA according to Seymour-Smith?The term "indigenous" refers to the "original inhabitants of an area which has subsequently been occupied by migrants"; therefore have to be South-Africans.
- 6Give the UNESCO definition of "culture""A set of distinctive spiritual, material, intellectual and emotional features of society of a social group, that encompasses, in addition to art & literature, lifestyles, ways of living together, value systems, traditions & beliefs".
- 7Who does Customary law in South Africa apply to?Customary law applies to anyone - s30 of Const [everyone can choose their own culture]; the person must prove that they're part of the community and live their lives in accordance with the customs of that community
- 8Give some of the values of ubuntuGroup solidarity; African philosophy; give coherent structure to society; express collective consciousness in behavior; demonstrate brotherhood, sharing, treat like equals; respect; conducive atmosphere; person can't exist by himself; rehabilitation rather than vengeance.
- 9Differentiate between "living" and "official" customary lawLiving = original customs & usages in a constant phase of evolvement in accordance with the needs of the group.
Official = law which has been incorporated into legislation or pronounced in judicial decisions. - 10What does s211(3) of the Constitution provide for?"The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law".
- 11When may courts apply customary law?a) If it is compatible with the Constitution
b) To the extent that it's not amended by legislation
c) When it is applicable (e.g. choice of law rules) - 12In a conflict of laws, if the defendant contests the plaintiff's choice, what action does the court take?Court investigates parties' prior conduct to instituting action: look at words/deeds out of which claim arose, nature of cause of action, cultural indication/rituals (if none, look at purpose, environment, subject matter), delict, parties' way of living (Westernised?)
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- Fichas sobre Legal pluralism test 1 revision, creado por u11030870 el 11/03/2015.
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