LAW AND JUSTICE
Introduction to Law
Lecture 2
LAW AND JUSTICE
Ideal of law = justice
Distributive justice = equal distribution amongst equals
Corrective justice = Restoring justice
EQUALITY
IS LAW JUST??
Adjective (procedural) / Substantive (material) law
PROCEDURAL LAW = Rules and Processes
according to which a court reaches a decision.
SUBSTANTIVE LAW = material legal rules/content
of legal rules
Legal process strives toward formal justice:
1) Like cases must be treated alike (system of
precedent).
2) Criminal procedure: accused person is innocent
until proven guilty. Both sides must be heard, court
process in a reasonable time.
FORMAL
JUSTICE
The content of legal rules (material law) does not
necessarily coincide with justice:
Group Areas Act 41 of 1950 is an example of social
injustice.
Law can be both a site of protection and oppression /
Content of Law Unjust
LEGAL POSITVISM
Should law embody justice to qualify as law??
LEGAL POSITVISM NATURAL LAW
Positivists = What is and not what it ought to be.
Irrelevant if law is just and fair
Law = statute books, rules and court decisions
Judge’s role mechanical ; apply law not to question or create.
Ius dicere non facere: Judges speak the law they do not create it.
See S v Adams; S v Werner p 15 tb
NATURAL LAW
Direct contrast to positivism
Law has moral dimension not only what is promulgated but what it ought to be
Influence of morality: if positive law conflicts with morality = unjust Legality = moral
content.
Natural law norms found in the harmony and order of nature or in human nature.
Content of natural law norms can be found in human reason; applied universally at all times.
See the examples in the textbook p 16-18;
SA CONSTITUTION
Embodiment of specific type of natural law.
Law in conflict with Constitution invalid once declared
as such by our court.
Unjust law will not be a law
LAW AND CERTAINTY
Law must be certain
Has to be:
Predictable
applied consistently
fixed and certain content.
Factors such as language, changing values and judicial discretion influence certainty
LANGUAGE
Legal rules are cast in Words are not fixed and A word/sentence can have TOOL OF LEGAL
language. Language must do not have set meanings. multiple meanings and ARGUMENT
be interpreted. interpretations
CHANGING VALUES
Values change and the law needs to adapt
Change reflected through legislation: Constitution; Tabaco Products Control Act 83
of 1993
Judges should also take account of changing values and adapt accordingly ‘public
policy’
See examples provided in textbook:
Clarke v Hurst; Van Erk v Holmer. P 20
Problem with judges basing decision on changing community values. How do you
establish societies views? Judge own conviction and preference?
Constitution: convictions of community and public policy given content with
reference to the C: important ex Carmichele case p 22
JUDICIAL DISCRETION
Interpretation of words/norms implies that judges have a discretion in applying law.
Subjective prejudices and attitudes.
Especially prevalent in sentencing.
Judicial activism: use their discretion in creatively interpreting law to give effect to social
change
Deference: curtail their discretion by deferring to the executive or legislature derived from
legal positivists outlook
Interpretation clause sec 39 of the C
Makwanyane example p 24
NB example ch 18 p 396
CHAPTER 18 P 398
EXAMPLES OF PERSPECTIVES ON THE LAW
Judicial Activism (p 396): when a judge exercises their discretion to resolve a dispute creatively and
boldly to arrive at an answer that often leads to societal change.
Judicial Deference (p396): derived from a legal positivist outlook, a judge limits their discretion and
prefers to leave the decisions to the executive and legislative branches of government.
Natural Law example (p 398).
Legal Positivism example (p 400).
American legal realism (p 401): Law not abstract but seen as courts decisions in concrete cases. What
is written down in statute books or legal rules not sufficient to explain what the law is. Should focus on
what courts do; judges say. Judges will be influenced by subjective factors such as their own
prejudices. This school is skeptical about rules and claims to objectivity.
Feminist Legal Studies (p 402): questioning the male view perpetuated
throughout society and the law.
Critical Race Theory (p407): focuses attention on the role of race in legal practice
and legal interpretation. According to this approach there are often racial
prejudice and structural advantage in ostensibly neutral legal rules.
Critical Legal Studies (p 410): The traditional view of law as neutral and logically
ascertainable is questioned; law is a system behind which deep-rooted political,
social and economic conflict s are cloaked.
African Constitutional jurisprudence (p 412): acknowledging and implementing
the concept of Ubuntu in adjudication.
African decolonial jurisprudence (p 414): Questions the constitutional
interpretation of the concept of Ubuntu and if it is truly decolonial.
