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.