LJAE4813 – Unit 2

Outline - Units • Explain the concept of “philosophy” and

be able to apply the concept of philosophy
1. Introduction to Jurisprudence and to the law.
• Define jurisprudence.
its African Context • Discuss jurisprudence in an African
• Critically explain the relationship
context.
of law with morality, politics,
• Critically explain the relationship of law
gender-based issues and
with morality, politics, gender-based
economics.
issues and economics.
• Critically evaluate the implications
of postmodernism for the 2. Theories of Law
application of law and justice with
specific reference to the South
African Constitutional state and
the ideological approaches of the • Reflect on the role of philosophy in advancing the social
South African judiciary. justice issues surrounding fairness, legitimacy, efficacy and
3. Theories of Justice equity.
• Critically apply the concepts, principles and theories of
ethics and legal philosophy to authentic problems, ethical
issues and moral dilemmas likely to arise in professional
contexts.

4. African philosophy in regional international law with specific reference to the African Charter on Human and People’s Rights

• Evaluate international law aspects related to African philosophy with specific reference to the African Charter on Human and People’s Rights.
• Scrutinise the historical development of Human Rights theory and critically discuss the respective positions of Western and African jurisprudence in this regard.
 Outline - Units
• Critically explain the relationship of law with morality,
politics, gender-based issues and economics.
• Contrast the philosophical underpinnings of the pre-
1994 Parliamentary sovereignty applied to South Africa
with the post-1994 Constitutional dispensation.
• Evaluate the different philosophical understandings of
2. Theories of Law
section 39 of the South African Constitution bearing in
mind the commitment to transformative
constitutionalism, especially substantive reasoning
rather than formalism.
• Critically evaluate the implications of postmodernism for
the application of law and justice with specific reference
to the South African Constitutional state and the
ideological approaches of the South African judiciary.
 Prescribed Readings and Assessment

• Study guide – Unit 2

• Prescribed textbook - David Bilchitz; Thaddeus Metz;
Oritsegbubemi Oyowe, 2017, Jurisprudence in an African
Context, Oxford University Press pp. 19-127

• Assessment: Journal Entry #2, #3, #4

 Introduction – Theories of Law
• Hypothetical Case:
 Introduction – Theories of Law
• Would you find the divers guilty of the law that states: ‘Whoever shall wilfully kill another
human being shall be punished by death’?
• Is the law the same as morality?
• Does it matter that the divers consented to the killing?
• Does it matter that 10 rescuers died to save the divers and now the divers are to be punished by
death?
• Would you have participated in the killing if you were in the divers’ shoes?
• Does the purpose of the law in question matter? For example, deterrence or retribution?
• Should the law require people to act heroically? I.e. to sacrifice oneself for others?
• Should a judge be concerned with whether the act in question was good/bad/moral/immoral?
• Reconsider your answer to the first question, “would you find the divers guilty of the law that
states: ‘Whoever shall wilfully kill another human being shall be punished by death’?”. After
this discussion, would your answer change or not?
 What is law: Positivism & African societies
• Aim to identify core features of what is called ‘law’  systematic process of determination
• Why do we need to clarify meaning of law  different normative systems
• Central to Bilchitz et al ch 2 is query whether certain positivist theories fully capture the
essence of law when compared to the law in traditional African societies.
• Nature of traditional African societies  John Mbiti
• Kinship system  kinds of relationship envisaged (descriptive)?
 family is basic unit
 individuals don’t exist in isolation
 relationship is crucial
 relative significance/value of kinship system (evaluative)?
 instrumental value versus intrinsic value
 What is law: Positivism & African societies
• Kinship system as system of norms
 showing and failing to show respect
 norms regarding how groups like families cooperate
• Kinship system is normative
• Duties are visible
• How is validity of norms determined?
• Comparison with John Austin?
 Positivism - John Austin
• Laws properly so called are ‘commands of a sovereign backed
by the threat of sanction’.
• Sovereignty and the ‘habit of obedience’:
• Bulk of society is in the habit of obedience to a determinate common superior
• The determinate common superior is not in the habit of obedience to some other superior
• Sovereign is both illimitable and indivisible
• Sanction required threat of evil, even slightest threat was sufficient
• ‘Sovereignty’ and ‘command’ criticized for giving central place to political power
• Austin’s view suggests Parliamentary Sovereignty
 Customary law and legal validity
• Some African philosophers hold that customs of a society constitutes a system of law.
• Ramose suggests Western legal thought conceives law in abstract terms.
• His ubuntu conception of law focusses on concrete social reality  needs to be flexible and
adaptable (contra Austin).
• Seemingly suggests customs of community constitutes its law.
• What if customary norms are subsequently codified?
• Official versus living customary law.
• What makes a norm ‘law’?  Source versus content
• Source of custom as law?
• Content of custom as law?
• Comparison with Austin’s command, sanction, sovereign?
• Comparison with traditional kinship societies?
• Reasons for legal obligation, external (Austin) versus internal (Ramose)
 Hans Kelsen
• ‘Pure theory of law’ - excluded sociological and psychological investigation
from law
• Kelsinian norms authorise directions to officials involved in the administration of
justice to take given action on the occurrence of a given event
• Law as a system of norms ‘authorizing their own creation’
 Hans Kelsen

• What makes a norm legal?

• Kelsen examines the objective, rather than the subjective, meaning of an act
• Tax collector versus gangster scenario
• The validity of the norm depends upon whether it was made in terms of a higher
valid order  Each norm draws its validity from the validity of another higher
norm, which in turn derives its validity from a still higher norm within the
system, and so on  Hierarchical system of norms
 Hans Kelsen

• The Grundnorm is the starting point of the chain of legal norms

• The Grundnorm validates and authorises the creation of all legal rules
• The Grundnorm is a presupposition of the validity of the constitution or monarch
 Kelsen describes the Grundnorm in his later writings as a fiction
• Grundnorm unites the legal system by showing that the norms are all part of the
same legal system and constitute unity
• Validity of ‘regular’ norms versus the Grundnorm?
 Hans Kelsen

• Grundnorm survives constitutional amendments but not revolutionary change

• When is it possible to determine if the laws of a revolutionary regime are
effective?  Law versus politics
• A judge who carries out a new regime’s directions, aids its efficacy, and if those
directions happen to be morally reprehensible, such a judge also violates his
conscience
 Hans Kelsen

• Separation of law and morals in face of inequity (e.g. pre-1994 SA)

• Conceptualist theories can be applied to experience to organize it and make it
intelligible
 HLA Hart

• Criticised Austin’s jurisprudence before proposing his own theory of law

• The difference between ‘being obliged’ and ‘being under an obligation’ NB
• Laws as we know them are not commands, they’re not like orders backed by threats
• Not all laws can be described in terms of orders backed by threats
• The concept of command fails to account for the range of application of law
• An order backed by threats cannot account for the mode of origin of all law
• Habit of obedience is inadequate
• Notion of sovereignty is deficient
 HLA Hart
• Only the notion of a rule effectively describes the notion of an obligation
Social Habits Social Rules
• Only external aspect • Draws criticism if broken
• No criticism if broken • Thus contains internal aspect as well
• E.g. movie on Wednesday as external  CONTRA SOCIAL
HABITS
• 2 types:

Social conventions Social rules which do

• eg etiquette or speech impose obligations
• Some pressure to obey • Social pressure to
obey
• Needed to maintain
social life
• Hart calls them
PRIMARY RULES
 HLA Hart
• Society with only primary rules would suffer from 3 main defects
• Secondary rules remedy the defects of a society governed only by primary rules
• ‘Law may most illuminatingly be characterised as a union of primary rules of
obligation with such secondary rules’.
• Hart lists 3 types of secondary rules:
• Rule of Recognition remedies defect of uncertainty
• Rule of Change remedies defect of a static system
• Rule of Adjudication remedies defect of unclear enforcement
 HLA Hart
• A legal system exists when there is widespread obedience to the primary rules
and when the officials accept the secondary rules from an internal viewpoint
• In sum, Hart sees the law as a system in which rules control those who hold
power
• Advances the Rule of Law which Austin’s jurisprudence overlooked: the
‘government of laws and not of men’.