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LJU4801 - Legal Philosophy Study notes for exam preparations Pack with questions and answers
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LJU4801 - Legal Philosophy Study notes for exam preparations Pack with questions and answers
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Notes – for exam practice question and answerNOTES: SATELLITE CLASS
Usually we divide legal philosophies into three groups, but first a note of caution:
remember that these groups do NOT refer to periods in the history of philosophy.
They refer to types or kinds of philosophies and ALL these kinds of philosophies are
found in contemporary legal thinking.
Now let's see how the various philosophies you have studied fit into this scheme.
Please note right from the start that premodern is not a value judgement – it is
merely a description.
- These are the philosophies that underlie most of what you have studied as
law students and should therefore be very familiar to you.
- In the postmodern group you have studied Critical Legal Studies. This is the
kind of philosophy that should be familiar to you if you watch MTV.
- Feminism falls into both the modern and the postmodern group.
- So, if we put all of this together, the whole of legal philosophy can be
summarised in the following way.
- Try to keep this in mind throughout as you study the various philosophies to
ensure that you see the wood and not only the trees!
Let us now move on to premodern legal thinking. The one thing that is most
characteristic of premodern thinking is the idea of NATURAL LAW. Most of you had
extraordinary difficulty in defining natural law, mostly because you made this more
difficult than it really is. So let us start with a definition of natural law:
Natural law is the idea that there is a real, pre-political set of rules that provide the
yardstick against which human laws can be measured.
What this means is that natural law thinkers think there is a set of rules, almost like
an unwritten constitution, that doesn't form part of the physical world but which
tells you which laws are good and which are not. This super-constitution therefore
acts like a guideline and a constraint on legislation – it tells both legislatures and
judges what justice should be.
In addition, this set of rules comes from something "higher" or "better" than humans
or ordinary human nature. And this "something" differs for the various kinds of
natural law thinkers.
In the case of modern natural law, the natural law comes from human rationality.
In case you think this only applies to Western thinking, the same kind of argument
applies to traditional African jurisprudence.
In this case the idea that is equivalent to natural law is the concept of ubuntu.
At this point there are two things you might like to think about:
, How do you know the content of the rules that make up natural law?
And what do you do if not everyone agrees about what natural law requires?
Let us now turn to modern legal philosophies. Basically it deals with:
Natural law thinkers typically say that the law as it is (what we call positive law) is
determined by the law as it ought to be (what they call natural law). Modern legal
philosophers, on the other hand, only concentrate on the law as it is. The
characteristics of modern legal theory is:
In this course you have studied 4 modern philosophies. They all share the general
characteristics of modern thinking (scientific and individualist) but they also differ
from one another. One of the most important things you need to do is to identify
those similarities and differences.
1. Legal positivism deals with three main ideas or themes:
The important thing to remember here is that legal positivism is never just one of
these things. A theory that merely emphasises the epistemological theme is not
positivism – at most it is authoritarianism. That is why I argue that it is wrong to
blame positivism for the decisions of apartheid courts in South Africa, as John
Dugard does.
2. The interesting thing about the American Realists is that they react to
positivism and yet also continue the work of the positivists.
I urge you to study the very helpful summary of Realism in tutorial letter 201, which
you should have received by now. The purpose of the Realists was to make law (and
court decisions in particular) more scientific. They did this in two ways:
One of the problems for the Realists was that their studies show that judges often
decide cases based not on the facts or the law but based on personal preference or
prejudice. The problem with this is:
What is to stop a judge from deciding a case based on what he or she had for
breakfast? It is this problem that Ronald Dworkin tried to solve.
3. Dworkin says that when a judge decides a case, he is like a person who stands
in the middle of a river – he cannot alter the course of the river merely by standing in
it. The river flows between its banks and, in the case of law, the banks are the
tradition of that legal system. So, in the end, it is the tradition of the legal system
that stops judges from deciding cases in a subjective way. This is what Dworkin calls
"law as integrity".
In this way, says Dworkin, you can avoid courts deciding cases based on policy.
Policy, for Dworkin, is something that the legislature and government is concerned
about. Courts, on the other hand, only deal with principle and this can be found in
the tradition of the legal system within which the judge works.
You need to ask serious questions about Dworkin's theory, such as the following:
In the South African context, what tradition are we talking about? Roman-
Dutch, English, African? And why choose one tradition over the others?
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