SMART STUDY

JURISPRUDANCE PREPARATION ACCORDING TO

THE TEST SCOPE

Question 1 Austin’s Theory

Essay on Austin's Theory

Introduction

John Austin, a prominent legal philosopher of the 19th century, made significant
contributions to the field of jurisprudence with his theory of law. Austin's theory, often
referred to as legal positivism, has been influential in shaping contemporary legal
thought. This essay aims to critically examine Austin's theory of law, exploring its key
concepts, strengths, weaknesses, and its relevance in the context of modern legal
philosophy.

Key Concepts of Austin's Theory

1. The Command Theory of Law:

Austin's central proposition is that law is a command issued by a sovereign authority,

which is characterized by the power to enforce that command. According to Austin, law
is fundamentally a matter of command and obedience.

2. Sovereign Authority:

Austin emphasizes the importance of a sovereign authority, which he defines as a

determinate human superior or body of superiors that is not in a habit of obedience to a
similar sovereign. The sovereign's commands, or laws, are backed by sanctions or
threats of punishment.

3. Legal Positivism:

Austin's theory is often considered a foundational framework for legal positivism. Legal
positivism asserts that the validity of a law is independent of its moral content, and it
relies on observable facts and human-made rules.

Strengths of Austin's Theory

1. Clarity and Precision:

2. One of the notable strengths of Austin's theory is its clarity and precision. Austin
provides a clear and concise framework for understanding law as a command of
a sovereign authority, making it accessible for legal scholars and practitioners.

2. Separation of Law and Morality:

Austin's theory effectively separates law from morality, emphasizing the importance of
analyzing law as a social phenomenon without necessarily delving into moral
considerations. This separation is crucial for a systematic study of law.

3. Focus on Enforcement:

Austin's emphasis on the sovereign's power to enforce commands underscores the

practical aspect of law. It highlights the role of coercion in maintaining social order and
compliance with legal rules.

Weaknesses and Criticisms

1. Overemphasis on Sovereignty:
Critics argue that Austin's theory places too much emphasis on the idea of a sovereign
authority. In modern democracies, power is often dispersed among various institutions,
and the notion of a single, all-powerful sovereign is less applicable.

2. Inadequate Treatment of Customary and International Law:

Austin's theory primarily focuses on the commands of a sovereign authority, which may
not adequately address customary or international law, where legal rules are not
necessarily promulgated by a sovereign.

3. Neglect of Morality: While Austin's separation of law and morality has its merits, some
argue that it neglects the ethical dimensions of law. Law is not purely a matter of
command and obedience; it also embodies societal values and norms.

Relevance in Modern Legal Philosophy

Austin's theory continues to have relevance in modern legal philosophy, particularly in
discussions surrounding legal positivism and the nature of law. However, it has been
refined and adapted to address the complexities of contemporary legal systems.
Scholars often integrate elements of Austin's theory with other legal theories, such as
H.L.A. Hart's concept of secondary rules, to provide a more comprehensive
understanding of the law.

In Conclusion, John Austin's theory of law, with its command-based approach and
emphasis on sovereignty, has made significant contributions to jurisprudence and legal
philosophy. While it has its strengths in terms of clarity and separation of law from
morality, it also faces criticisms related to its applicability in modern, complex legal
systems. Nonetheless, Austin's theory remains a foundational framework in the study of
law, and its concepts continue to inform discussions and debates in contemporary legal
philosophy.
Question 2 What is Jurisprudence?

Introduction

Jurisprudence, often referred to as the philosophy of law, is a multifaceted field that

seeks to understand and analyze the nature of law, its origins, and its impact on society.
Jurisprudence encompasses a wide range of theoretical perspectives and philosophical
inquiries into the essence of law. This essay aims to provide an overview of
jurisprudence and then compare the major schools of thought within this discipline,
including natural law, legal positivism, legal realism, and critical legal studies.

I. Jurisprudence: An Overview

Jurisprudence is the systematic study and exploration of fundamental questions about

the nature of law. It goes beyond the practical application of law and delves into the
philosophical and theoretical underpinnings of legal systems. Jurisprudence seeks to
answer questions such as:

1. What is the nature of law?

2. What makes a law valid?

3. What is the relationship between law and morality?

4. How does the law interact with society and shape human behavior?

5. What are the roles of judges and legal scholars in interpreting and creating law?

Jurisprudence provides the intellectual framework for understanding these questions

and for critically examining the foundations of legal systems across the world.

II. Different Schools of Thought in Jurisprudence

A. Natural Law

Natural law is one of the oldest schools of thought in jurisprudence, dating back to
ancient Greek and Roman philosophers like Aristotle and Cicero. Natural law theorists
argue that there exists a moral and ethical order that is inherent in the universe, and
human laws should conform to these higher principles. Key characteristics of natural
law theory include:

- Laws are discoverable through reason and human nature.

- Moral principles are superior to positive (man-made) laws.

- Laws that conflict with natural law are unjust and should be resisted.

B. Legal Positivism

Legal positivism, exemplified by philosophers like John Austin and H.L.A. Hart, posits
that law is a social construct and that its validity is not dependent on morality. Key
features of legal positivism include:

- Laws are commands of a sovereign authority.

- Validity is based on social recognition and acceptance.

- Morality and law are separate and distinct realms.

C. Legal Realism

Legal realism emerged in the early 20th century, with proponents like Oliver Wendell
Holmes Jr. and Jerome Frank. Legal realists contend that the law is not a set of fixed
principles but rather the result of judicial decisions influenced by social, economic, and
political factors. Key tenets of legal realism include:

- Judges' decisions are influenced by subjective factors.

- Law is shaped by social context and societal needs.

- Focus on the practical effects of legal rules.

D. Critical Legal Studies

Critical legal studies (CLS) emerged in the 1960s and challenges traditional legal
theories. CLS scholars emphasize the role of power and ideology in law, often critiquing
the legal system as a tool of the elite. Key aspects of CLS include:

- Law is a reflection of power dynamics.

- Critique of formalism and objectivity in law.

- Emphasis on the need for social justice and equality.

Comparative Analysis

Each school of thought in jurisprudence offers a unique perspective on the nature and
function of law. Natural law emphasizes moral principles, legal positivism separates law
from morality, legal realism examines the practical aspects of law, and critical legal
studies highlights the societal and power dynamics within legal systems. These schools
often coexist and influence legal thought in various ways, leading to ongoing debates
about the nature and purpose of law.
Conclusion

Jurisprudence is a rich and diverse field that explores fundamental questions about the
nature of law and its role in society. The different schools of thought within jurisprudence
provide distinct lenses through which scholars and practitioners can analyze and
understand the law. While these schools often have contrasting views, they contribute to
the ongoing evolution and development of legal theory and practice, enriching our
understanding of the complex relationship between law, morality, society, and power.

Queston 3 African Legal Philosophy

Ubuntu, a philosophy of shared values and beliefs As Africa’s philosophy of life, ubuntu
represents the African subcontinent’s philosophy of shared beliefs and values. Various
scholars maintain that the African subcontinent’s indigenous African people share
fundamental beliefs and values. The philosophy of ubuntu extends “from the Nubian
desert to the Cape of Good Hope and from Senegal to Zanzibar” and represents the
worldview of all “Bantu speaking peoples of Africa” It is common knowledge that African
cultures differ from one another, but despite cultural differences, this unique collective
worldview stretches “from Carthage to Zimbabwe, from Meroe to Benin and Ife, from the
Sahara to Timbuctoo to Kilwa, across the immensity and the diversity of the continent’s
natural conditions”. Ubuntu is found “all over Africa and in South Africa this ubuntu
tendency is called Batho Pele” Broodryk describes ubuntu as a universal African
worldview which is found amongst all African cultures and in all African languages.
Although different languages have different names for ubuntu its basic meaning and
worth remain the same.48 South African courts generally depict ubuntu as a shared
value system ignoring the fact that ubuntu represents sub-Saharan Africa’s shared
belief system and that these shared beliefs and values are grounded in African
Religion.50 Are ubuntu’s shared beliefs ignored because ubuntu as ethnophilosophy or
“[g] nosis is by definition a kind of secret knowledge or is it because no sacred
knowledge is to be revealed to strangers or outsiders?

The fact is ubuntu is a holistic philosophy of life which is defined by the African spirit
world and does not distinguish between spiritual and physical existence. Ubuntu is “a
form of African philosophy … where the moral and spiritual have the emphasis”. Should
we, like the courts, turn a blind eye “ignoring the ubiquitous conflicts and contradictions,
the oppressive immanence of the [ubuntu] worldview, the witchcraft beliefs and
accusations, the constraint oscillation between trust and distrust, and merely
appropriating and presenting the bright side”? If the Bill of Rights is deemed supreme
law, South African courts will have to deliberate ubuntu despite the fact that it does not
fit into Western legal discourse and “resists the dictate of Western logic and Western
rites of argumentation”. Conclusion Deconstruction of the Constitutional Court’s
definitions of ubuntu has revealed the following: The court’s translation of ubuntu as
“humanness” is meaningless and does not convey the meaning or essence of the
philosophy of ubuntu. There is no European word which describes this ancient collective
African worldview. The court’s defintition of ubuntu as a “moral philosophy” is misleading
as ubuntu is “at best a form of religion”. Ubuntu, sub-Saharan Africa’s philosophy of
shared beliefs and values, is inseparable from African Religion and constitutes a
religious philosophy or ethnophilosophy as Tempels, Senghor, Oruka, and many others
maintain. Since S v Makwanyane and Another, South African courts endeavoured to
legalise the values of ubuntu but conveniently remained silent of the fact that this
worldview is inseparable from African Religion and that the ancestors constitute its core.

The court’s definitions of ubuntu as “group solidarity”, “umuntu ngumuntu ngabantu” and
“personhood” reflect the essence of this unique collective “folk philosophy”. These
definitions depict ubuntu as the worldview of traditional societies throughout sub-
Saharan Africa; the collective philosophy or ethnophilosophy of strong communitarian
societies. Ubuntu’s “inseparable trinity” sustains this ancient collective worldview’s
extended families, closed communities, African spirit world and belief in reincarnation. In
an era of postmodernism the Principle of Charity is sacrosanct as the (religious)
worldviews of Others are as significant as one’s own. But when the state or courts
advocate for the shared beliefs and values of a particular religious worldview to the
detriment of others it constitutes unfair discrimination. Not only does their propagation of
ubuntu philosophy violate the section 15(1) Constitutional right to religious freedom, but
it violates our hard-earned constitutional values: it constitutes the rape of
constitutionalism and the rule of law.

Question
African legal philosophy is premised on the idea that there is uniquely approach
to law and legal conflicts. Name 5 characteristic of this approach to illustrate how
it is different from western idea

Acknowledging the differences between the political and legal systems which
administered these communities, Johnson et al identifies specific practices and types of
procedures which were common to all these communities. Those are laid down below:
Firstly, the chief was prohibited from acting in an autocratic fashion. There was an
obligation on him to act in the best interests of the collective, not based on his personal
interest; Secondly, although these communities formed alliances within the collective,
there were no political parties; Thirdly, there was no voting. Decisions were reached by
negotiations after careful and lengthy discussions and deliberations; and There was an
underlying spiritual aspect to their political and legal process, that religion and secular
were interwoven.

What are the central concepts and terms in African jurisprudence before colonialism?
There are three central concepts of pre-colonial African jurisprudence.
i. The concept of shame in criminal law;
ii. The accentuation on social equilibrium; and
iii. The idea of Ubuntu.

The concept of shame

African scholars argue that compensating the victim is the most important thing than
imposing punishment on the offender. To guarantee that the victim is compensated,
society inculcated shame in offenders.

Shame, as a legal value, has three features:

It is subjective, insinuating a ‘sense of unease and internal anxiety about something
which has gone wrong’ Shame is sensitive-to the displeasure of the general society; and
Shame dictates that the family or clan of the offender share the responsibility of
compensating the victim.

Social equilibrium
What is the main purpose of indigenous justice?
It is to perpetuate a balance between interests and forces whose dynamic interaction is
responsible for establishing the foundation of human societies. Justice dictates that
nothing should be carried out that will destroy the balance between groups. This
necessitates legal procedures to ensure compensation.

What is Ubuntu? Ubuntu translates as humanness, denoting personhood and

morality; It is oriented with pragmatic values of understanding and restitution instead of
retaliation, retribution and victimisation. It has been referred in the case of S v
Makwanyane, giving it weight as a legal value. Ubuntu is acknowledged as embodying
values such as universal brotherhood for Africans, respecting others as human beings
and sharing.

Question 4 What is meant by Ubuntu? Essay

Introduction
Ubuntu is a philosophical concept deeply rooted in African culture and society. It is a
term that encapsulates the essence of humanness, emphasizing personhood, morality,
and interconnectedness among individuals. This essay aims to elucidate the meaning of
Ubuntu, its cultural and moral significance, its role in the legal context, and its presence
in other African countries like Namibia. Additionally, we will explore alternative
interpretations and critically examine the pros and cons of this concept.

Understanding Ubuntu
At its core, Ubuntu translates to "humanness" and embodies the idea that one's
humanity is intricately tied to the humanity of others. It emphasizes the importance of
empathy, compassion, and interconnectedness among people. Ubuntu promotes
pragmatic values, such as understanding and restitution, rather than seeking retaliation,
retribution, or victimization.

Ubuntu in the Legal Context

Ubuntu's influence extends beyond culture and morality; it has been acknowledged as a
legal value in certain cases. The landmark case of S v Makwanyane in South Africa
highlighted Ubuntu's significance in the legal sphere. In this case, the Constitutional
Court of South Africa abolished the death penalty, emphasizing the inherent dignity and
worth of all individuals, consistent with Ubuntu principles.

Pros and Cons of Ubuntu

Pros:
1. Promotes empathy and compassion: Ubuntu encourages people to see the humanity
in others and to treat them with kindness and understanding.
2. Fosters reconciliation: It places an emphasis on restitution and reconciliation, which
can be essential in resolving conflicts and healing societies.
3. Strengthens communities: Ubuntu's focus on interconnectedness helps build strong
and supportive communities.
4. Upholds human dignity: Ubuntu recognizes the inherent worth and dignity of every
individual, aligning with fundamental human rights principles.

Cons:
1. Ambiguity: Ubuntu can be a subjective concept, leading to potential ambiguity in its
application.
2. Cultural Relativism: Critics argue that Ubuntu may not be universally applicable and
may not align with the values and beliefs of all cultures.
3. Lack of Legal Precision: While Ubuntu has been referenced in legal contexts, its
application in specific legal cases can be challenging due to its abstract nature.

Ubuntu in Namibia

Namibia, like South Africa, has a rich cultural heritage influenced by indigenous beliefs
and customs. While Ubuntu may not be explicitly codified in Namibian law, similar
concepts of communalism, interconnectedness, and respect for others as human beings
are deeply ingrained in Namibian society. The country's legal framework is influenced by
principles of justice, fairness, and respect for human rights, which align with Ubuntu
values.
Alternative Interpretations of Ubuntu

Ubuntu is not a monolithic concept, and its interpretation may vary among individuals
and communities. Some may emphasize its communal aspect, while others may focus
on its moral and ethical dimensions. Alternative interpretations may lead to different
applications and understandings of Ubuntu in various contexts.

Conclusion
Ubuntu is a profound philosophical concept that embodies the ideals of humanness,
morality, and interconnectedness. It has made its mark in the legal realm through cases
like S v Makwanyane in South Africa, where it was instrumental in the abolition of the
death penalty. While Ubuntu is not explicitly incorporated into the legal systems of all
African countries, its principles of empathy, compassion, and respect for human dignity
resonate with societies across the continent. However, it is essential to recognize the
potential challenges and ambiguities associated with applying Ubuntu in different
contexts and to remain open to alternative interpretations that reflect the diversity of
African cultures and values.

Other Questions
Question 5 Briefly explain the differences between the following Radical realism
and progressive realism

Legal Realism:- holds that law is not a scientific enterprise in which deductive
reasoning can be applied to reach a determinate outcome in every case. Holmes’s
scepticism Holmes argument is that judges operate in a pragmatic way; that they do not
make decisions from an elevated view of the legal academic, but rather, on the ground.
He was sceptical about the usefulness of legal rules in helping judges to adjudicate on
particular cases. He believed that two judges may use the same rule but reach two
totally different decisions. For him, what judges actually do is decide according to the
facts of a specific case, then substantiate and justify that decision with legal rules and
principles. Holmes and the influence of extra-legal factors in adjudication. For Holmes,
judges are influenced by a variety of factors in deciding cases. They therefore do not
base their decisions solely on what they read in legal textbooks. He contends that in
actuality, judges base their decisions on what they think is right, or more specifically, on
what they consider makes practical sense for the community. Holmes argues that even
if the way judges write their decision appears like a logical application of legal rules and
principles, what plays a major role in deciding cases is actually the ‘judges’ unarticulated
premises’

Progressive realism: is an American foreign policy which focuses on producing

measurable results in pursuit of widely supported goals. It supports stronger
international institutions, free trade, and US national interests. progressive realists
highlight the importance of strong participation in the United Nations and acquiescence
to international law. They feel that economic interdependence, the environment and
global security makes international governance serve national interest. The policy
emphasizes the need to convert "hard" military power and "soft" attractive power into
"smart" power.

Define the following concepts

Question
John Rowls attempted to provide a rational foundation for shared values in a
community. Write an essay in which critically discuss this philosophy, with
reference to the following: John rawls justification for the rational of these shared
values

John Rawls’ conception of justice argues for the following: to maximise liberty, subject to
such limitations as are necessary for the preservation of liberty; equality for all, in
relation to the basic liberties of social life and in relation to the way all other kinds of
social goods are distributed. The exception to this is the difference principle which
allows for inequality if such an inequality will ‘produce the greatest benefit for those least
well off in a given scheme of inequality; and ‘fair equality of opportunity’ and the
elimination of all inequalities of opportunity based on birth or wealth. Although Rawls
does not set out how primary goods should be utilised by individuals, he insinuates that
there is freedom for the individual to use them as he elects, provided that just
institutions are not undermined by so doing. To come to these principles, Rawls
revamps the social contract theories of the 17th and 18th centuries. He does so with the
aim of creating a ‘group of individuals in a hypothetical original position’ who are faced
with a challenge of formulating a theory of justice to govern their society.

What is the original position?

Rawls does not claim that the principles of justice are discoverable through the
utilisation of nature, or that they can be discovered through intuition, religion or
empirically. What he seeks to show is that there are certain principles of justice which
are binding on us because they would ‘be accepted by people like us in the original
position.” These people in the original position are imagined by Rawls to be discussing
the fundamental principles of justice because they intend to set up a new society and
they endeavour to come up with a system of justice that will regulate their society.

Rawls’ primary social goods: what are they?

Rawls contends that there are primary social goods that people in the original position
compete for. Basic rights and freedoms, wealth as well as power are some of the
examples. Rawls divides these primary social goods in two categories, namely: 4. Basic
rights, liberties and powers which include political freedoms (in which the right to vote
and stand for public office are included); freedom to assemble, freedom of speech and
press, freedom of thought; freedom of the person; freedom against arbitrary arrest and
seizure as well as the right to own property. 5. The category of social goods relating to
wealth, income, power and responsibility. This includes resources, amongst which are
housing, education and health. What are Rawls’ two principles of justice? For Rawls,
there are two separate principles of justice which come about in relation to the two
categories of primary social goods that we discussed above. Those are: the principle of
greatest equal liberty- with which the first category of primary social goods is dispensed;
and the difference principle- with which the second category of primary social gods is
allocated. Accordingly, Rawls contends that the rational persons in the original position
will select those two principles of justice.

What are the criticisms of Rawls theory of justice?

Rawls Justice Theory has been subjected to severe criticism

i This includes his notion that natural talents should be exploited for the benefits of
others. Doing this, in Nozick’s view, appears to grant persons rights in other persons.
This is ultimately violating the distinctiveness of persons, which is one ground upon
which Rawls rejects utilitarianism.

ii Nozick also criticises Rawls difference principle in that the distribution of resources on
the principle of equality jeopardises individual liberty. For Nozick, justice is primarily
concerned with individuals getting a ‘just return’ for their labour.

iii Rawls supposedly universal theory of justice is ultimately just a specific ‘United
States liberal version of justice’ and it would not apply to other social, economic, political
or cultural contexts. Rawls’ original position is criticised for its basis on individual
subjectivity which fails to account for the social nature of human identity.

Discuss Dworkins theory of interpretation and how it is applicable to Namibia

Does Dworkin’s exposition of the law relate to the Namibian legal system and more
specifically judicial function? In the case of Kaulinge v Minister of Health and Social
Services the court acknowledged the significance of the new constitutional order as
follows: Administrative bodies and administrative officials who are capable of making
decisions affecting citizens should always bear in mind that, by the adoption of the
Constitution of Namibia, we have been propelled from a culture of authority to a culture
of justification. Employing a Dworkinian approach to constitutional interpretation entails
that in order to understand the Constitution one ought to understand it in light of its
point. When Dworkin’s constructive interpretation is transposed to constitutional
interpretation a good interpretation of the Constitution becomes one which places it in
the most sensible way of looking at it. Conversely, a bad interpretation of the
Constitution is that which vitiates the values undergirding it or that which does not
portray it in the best light possible. Dworkin believes that legal materials and their
interpretation must draw upon the best moral theory of a particular legal system, and
this morality, according to Dworkin, is founded on the idea of treating people as equals.
In S v Makwanyane the Court held, per Mahomed J, The South African Constitution is
different: it retains from the past only what is defensible and represents a decisive
break from, and a ringing rejection of that part of the past which is disgracefully racist,
authoritarian, insular and repressive and a vigorous identification of and commitment to
a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly
articulated in the Constitution. The contrast between the past which it repudiates and
the future to which is (sic) seeks to commit the nation is stark and dramatic.

According to Mr Mundia, Dworkinian perspective, in the case of Mushwena can be

criticized this case can be criticized in two grounds. ‘Law as integrity’ calls for a
conception of law that views it as though it has been created by a single author and
applies the law consistently in all cases. Assuredly, nothing does more harm to law’s
legitimacy than the ad hoc and inconsistent application of legal rules by the judiciary.
Accordingly, the purpose of law can never be said to be the attainment of justice,
fairness or due process when it is not applied consistently in all the cases. Law cannot
be said to have integrity when there are different applicable standards to similar cases.
To ensure that law has integrity, Dworkin proposes two requirements for legal
judgments. The first requirement calls upon judges to ensure that every legal judgment
is a continuation of the doctrinal past. The reason for this requirement is that judges are
to assume … that the law is structured by a coherent set of principles about justice and
fairness and procedural due process and it asks them to enforce these in the fresh
cases that come before them, so that each person’s situation is fair and just according
to the same standards. Dworkin draws a parallel as to how a legal judgment should be
constructed to make sure law has integrity. Integrity exhorts judges to decide novel
cases in tandem with the past legal record, except where the doctrinal past is declared
a ‘mistake’ in that it cannot be justified in terms of the values underpinning the legal
system. In Dworkin’s view, this guarantees that like cases are treated alike. ‘Law as
integrity’ is at work when judges ‘identify legal rights and duties, so far as possible, on
the assumption that they were created by a single author – the community personified’.
Surely, it is only in this way that law will be seen to ‘speak with one voice’.It is concluded
that the Supreme Court decision in Mushwena is a radical departure from that court’s
legal record established.

In Dworkin’s view, the purpose of a practice ought to be its main guide in the
determination of what constitutes ‘the best light’. What emerges from Dworkin’s
‘constructive interpretation’ is his emphasis on interpreting a practice as a whole.
Hence, the general thesis of Dworkin’s legal theory is that interpretation inescapably is
linked to a practice that it interprets, and accordingly is ‘governed by or sensitive to
one’s sense of the purpose or point’ of the practice in question. Interpretation should
strive to show the practice in its best light, all things considered. The success of
Dworkin’s ‘constructive interpretation’ thus is dependent on a demonstration that law is
an interpretive practice. If it is accepted that human rights are ‘universal, indivisible and
interdependent’, it should be accepted also that a constructive interpretation of civil and
political rights includes socio-economic reforms. Though the Namibian Constitution
does not entrench socio-economic rights, it is submitted that the principles of state
policy articulated in Article 95 of the Constitution are aimed at giving effect to civil and
political rights in the Constitution by improving the socio-economic conditions of all
Namibians. I consider this to be the import of Article 98 of the Constitution which
recognises the importance of economic growth for the human dignity of the Namibian
people. It provides as follows: The economic order of Namibia shall be based on the
principles of a mixed economy with the objective of securing economic growth,
prosperity and a life of human dignity for all Namibians.

The implications of a ‘constructive interpretation’ of the Namibian Constitution are that

courts must have regard to rights and moral values that may go far beyond what has
been posited as rights in the Constitution by the Constituent Assembly. Namibia’s
constitutional practice and the realisation of its transformative potential (socio-economic
transformation included) calls for a constructive interpretation of the Constitution.
Accordingly, Dworkin’s approaches of ‘constructive interpretation’ and ‘law as integrity’
can contribute immensely to Namibia’s quest to realise the nation’s aspirations as
contained in the Constitution. The value of ‘law as integrity’ lies in its insistence that
government should ‘speak with one voice to all its citizens’. It is submitted that when
judicial decisions are ad hoc and unprincipled, it tends to destroy the confidence of
many in the courts’ ability to live up to the judicial oath. Law therefore cannot be said to
have integrity if there are different applicable standards to like cases.

Question

Critically reflect on the following theme of critical legal studies and their
relevance to the Namibian constitutional project

False consciousness: CLS charge all political and legal theories as having created a
belief that all things are what they are because they are necessary. CLS scholars thus,
seeks to dispel the illusion of the necessity of existing social order. CLS are thus
committed to demonstrating that social arrangements are contingent, cultural
constructions rather than natural; For CLS, this will engender radical social and political
transformation, as people will realise that new and fairer social arrangements can be
made. Law has the capacity to legitimate dominant social and power relations in ways
that come to be seen as natural, and explains how subordination, differences in
opportunity and social hierarchies come to be accepted by those who are
disadvantaged.

CLS wishes to show that if legal consciousness- the belief in the status quo which
favours some groups and visions over others- can be changed, then society itself can
be changed. CLS further claim that the liberal focus on a system of rights encourages a
false sense of security while at the same time elevating individual autonomy over
communal security. Fundamental contradiction: Kennedy identifies what he calls “the
fundamental contradiction”, That is, the contradiction between individual autonomy
replete in dominant liberal legal discourse versus the notion of substantive
communitarianism. According to CLS proponents, liberalism is corrosive in its anti-social
and self-seeking ends; For CLS, the bottom line is a commitment to the attainment of a
higher level of altruism in society- a commitment to communal sharing, citizen
participation in social decisions and an increased sense of voluntary care and co-
operation among people.

Since communitarianism aims at achieving the common good, CLS calls for the
overthrow of the “tyranny of consolidated property” since it increases some people’s
dependence on others. CLS calls for the recognition of certain kinds of rights in its
objection to the liberal conception of rights. These include the individual’s right to resist
domination by others; the right to disrupt, or cause to be disrupted, established
institutions and forms of social practice which contribute to the present hierarchies and
division in society (destabilisation rights); the right to divisible portions of social capital
(market rights); And finally, rights which foster communal life, including communal good
faith, loyalty and responsibility (solidarity rights).CLS calls envisages opportunities for
individuals to change from society from being based on individualism to being based on
community.
Compare the view of Hobbes and locke regarding the following’’
State of nature and social contract: A social contract happens between a government
and its people. The people agree to give up some freedoms if the government agrees to
protect everyone's rights. In moral and political philosophy, the social contract is a
theory or model that originated during the Age of Enlightenment and usually concerns
the legitimacy of the authority of the state over the individual. Social contract arguments
typically posit that individuals have consented, either explicitly or tacitly, to surrender
some of their freedoms and submit to the authority (of the ruler, or to the decision of a
majority) in exchange for protection of their remaining rights or maintenance of the
social order.

Hobbes, the state of nature is characterized by the “war of every man against every
man,” a constant and violent condition of competition in which each individual has a
natural right to everything, regardless of the interests of others. Existence in the state of
nature is, as Hobbes famously states, “solitary, poor, nasty, brutish, and short.” The only
laws that exist in the state of nature (the laws of nature) are not covenants forged
between people but principles based on self-preservation. What Hobbes calls the first
law of nature, for instance, is in the absence of a higher authority to adjudicate disputes,
everyone fears and mistrusts everyone else, and there can be no justice, commerce, or
culture. That unsustainable condition comes to an end when individuals agree in a
social contract to relinquish their natural rights to everything and to transfer their self-
sovereignty to a higher civil authority, or Leviathan. Each individual in effect says to
every other: “I transfer my right of governing myself to X (the sovereign) if you do too.”
The transfer is collectively entered into only on the understanding that it makes one less
of a target of attack or dispossession than one would be in one’s natural state. Although
Hobbes did not assume that there was ever a real historical event in which a mutual
promise was made to delegate self-government to a sovereign, he claimed that the best
way to understand the state was to conceive of it as having resulted from such an
agreement. For Hobbes, the authority of the sovereign is absolute, in the sense that no
authority is above the sovereign and that its will is law. That, however, does not mean
that the power of the sovereign is all-encompassing: subjects remain free to act as they
please in cases in which the sovereign is silent (in other words, when the law does not
address the action concerned). The social contract allows individuals to leave the state
of nature and enter civil society, but the former remains a threat and returns as soon as
governmental power collapses.

Concepts

Natural rights: Hobbe and Locke wrote that all individuals are equal in the sense that
they are born with certain "inalienable" natural rights. That is, rights that are God-given
and can never be taken or even given away. Among these fundamental natural rights,
Locke said, are "life, liberty, and property." Thomas Hobbes and John Locke both have
made contributions to modern political science and they both had similar views on
where power lies in a society. They both are in favor of a popular contract or
constitution, which is where the people give the power to govern to their government.

Judicial Independence: … the judiciary’s essential function derives from two closely
related social needs. First, in a civil society we want some of our relations to be with
each other and without government to be regulated by reasonably well-defi ned laws
setting out mutual rights and duties. Second, when disputes arise about these legal
rights and duties, we want a mutually acceptable third-party adjudicator to settle the
dispute. Constitutional democracy, as a system of government where the governor
derives his/her power to rule from the governed, exhibits built-in problems. The very
essence of such a democracy inheres in its assumption that human beings are prone to
failure and power is prone to be abused. The human being, if left unchecked, can
become a beast towards others. In the first place, democracy assumes that order can
be created and sustained in a situation where human interactions are at play – but only
when there is a composite of views and perspectives agreed to by the greatest number
of participants.

Feminism:
Liberal feminism is closely oriented with the convictions of the first wave of feminism.
It emphasises that both men and women are human and for this reason, they ought to
possess equal rights and opportunities. Accordingly, liberal feminism is summarised
below: Liberal feminism is rooted in the belief that women, as well as men, are rights-
bearing, autonomous human beings. Rationality, individual choice, equal rights and
equal opportunity are central concepts for liberal political theory. Liberal feminism,
building on these concepts, argues that women are just as rational as men and that
women should have equal opportunity with men to exercise their right to make rational,
self-interested choices. Liberal feminism, also referred to as formal equality, is based on
the presupposition that women are akin to men in their capability to operate in the public
world. It is therefore concerned with the acquisition of equal opportunity and equal rights
for women within the accepted foundation of society.

Critical legal theory’ examines how critical thought repudiates what is taken to be the
natural order of things, be it patriarchy (in the case of feminist jurisprudence), the
conception of ‘race’ (critical race theory), the free market (critical legal studies), or
‘metanarratives’ (postmodernism). The myth of determinacy is a significant component
of the critical assault on law. Far from being a determinate, coherent body of rules and
doctrine, the law is depicted as uncertain, ambiguous, and unstable. And instead of
expressing rationality, the law reproduces political and economic power. In the view of
critical legal studies, social justice is a hollow promise.

Deconstruction: Deconstruction is an approach to understanding the relationship

between text and meaning. ... Deconstruction argues that language, especially in ideal
concepts such as truth and justice, is irreducibly complex, unstable, or impossible to
determine.

Law and morality by Plato maintains a virtue-based eudaemonistic conception of

ethics. That is to say, happiness or well-being (eudaimonia) is the highest aim of moral
thought and conduct, and the virtues are the requisite skills and dispositions needed to
attain it. If Plato’s conception of happiness is elusive and his support for a morality of
happiness seems somewhat subdued, there are several reasons. First, he nowhere
defines the concept or makes it the direct target of investigation, but introduces it in an
oblique way in the pursuit of other questions. Second, the treatment of the human good
varies in the different dialogues, so that readers find themselves confronted with the
problem of what to make of the discrepancies in different works. This touches on a
fundamental problem with Plato’s work namely whether to follow a ‘unitarian’,
‘revisionist’, or ‘developmentalist’ approach to Plato’s writings.

Natural law according to Thomas Aquinas: Law, is according to Aquinas, “an

ordinance of reason for the common good made by him who has the care of the
community and promulgated, in his explanation, he said that the Law is a standard
measuring human conduct, prompting man to act or limiting same from acting. It has to
do with reason, and that the Law needs to take into consideration the connection to
common happiness, he also added that A reasonable creature’s partaking in the eternal
law is natural law, and that Compared with eternal law, human law is found wanting,
lastly he explained that Natural law needs guide our acts to their ends. According to
Aquinas, there are three groups of principles of natural law, namely: the supreme group
which required one to do good and abstain from evil, to love God and to love one’s
neighbor, the second class is found in the Ten Commandments and it is based on the
supreme group; and the third-class comprising rules of justice as a consequence of
applying the first two principles to specific situations.

Nihilism: is a philosophy, or family of views within philosophy, that rejects general or

fundamental aspects of human existence, such as objective truth, knowledge, morality,
values or meaning. Different nihilist positions hold variously that human values are
baseless, that life is meaningless, that knowledge is impossible, or that some set of
entities do not exist or are meaningless or pointless.

Authoritarianism: Authoritarianism - Authoritarianism is the view that those in power

are always right and should not be questioned. In other words: might makes right. It is
important to realise that the term "positivism" has nothing to do with being positive or
being negative about something. It does not indicate something that is either good or
bad. Instead it is a theory that has to do with a scientific approach to law and social
sciences.

Platonic idealism usually refers to Plato's theory of forms or doctrine of ideas. It holds
that only ideas encapsulate the true and essential nature of things, in a way that the
physical form cannot. We recognize a tree, for instance, even though its physical form
may be most untree-like. The tree-like nature of a tree is therefore independent of its
physical form. Plato's idealism evolved from Pythagorean philosophy, which held that
mathematical formulas and proofs accurately describe the essential nature of all things,
and these truths are eternal. Plato believed that because knowledge is innate and not
discovered through experience, we must somehow arrive at the truth through
introspection and logical analysis, stripping away false ideas to reveal the truth.

Communitiarism: A contemporary critique of rights can be found in the work of

communitarians. Though liberals do not, contrary to some popular conventional
stereotypes, believe that human beings can exist outside society, they do believe that
we are able to stand back from our social roles and social practices, subject them to
critical scrutiny and reject them if found wanting. Communitarians take issue with this
view. They believe that our identity is constituted by the community in which we find
ourselves and that we can be obliged to pursue ends we have not chosen. This
philosophical view about the nature of the self has normative implications which bear on
the topic of rights. In particular, it leads communitarians to the view that the good for
human beings consists in identification with a ‘common form of life’, an identification
which is in tension with the idea of rights. In place of rights, with their individualistic
focus, communitarians would have us substitute a politics of the common good based
on shared objectives. They argue that this will make it possible to enjoy certain
communal goods, such as solidarity, fraternity and a sense of belonging, which we will
be shut out from if we persist in focusing on what is good for individuals.
Communitarians themselves undertake such an examination of our culture. They wish
to use the ends and practices of our cultural tradition as the basis for a politics of the
common good, but they do not mention that these practices were defined by a small
segment of the population.