Law and justice

Ideal of law

Justice

Distributive justice

Equal distribution amongst equals

Corrective justice

Aims to restore inequalities

Our legal process towards formal justice

1. Cases must be treated alike

2. Innocent until proven guilty

Legal positivism

• Say law is and not what it ought to be

• Morality and law are seperate

• Judges’ role is mechanical as they just speak the law but do not create it

• S v Adams and S v Werner 1981

- Coloured person left the area designated for coloureds under the Group Areas Act and was convicted

Natural law

• Has moral and justice approach

• The law is not only that which is promulgated, but ehat ought to be

Unjust law

Positive law conflicts with morality

Law has to be:

• Certain

• Predictable

• Applied consistently

• Fixed and certain content

Language

• Laws are cast in language

• Words don’t have fixed meanings

• A word or sentence can have multiple meanings

• Tool of legal argument

Changing values

• Law needs to adapt and remain effective

• Judges should take account of changing values

Judicial discretion

Interpretation of words/norms mean that judges has a discretion when applying the law

Judicial activism

Use their discretion in creatively interpreting the law to give effect to social change

Deference

Curtail their discretion by deferring to the executive or legislature derived from legal positivists outlook

Formal legal language characteristics

• Formal language and archaic or foreign words are used

• Formal style is apparent

• Sentences are written in passive

• Long and complicated sentences

• Overly specific

• Verbs are formed into nouns

• ‘shall’ is used repeatedly

• Sentences are written as conditions

Plain Legal language

• short and concise writing

• avoid passive form

• write in paragraphs

• avoid negative formulations

• use punctuality functionally

• write in ordinary English

Legal argumentation

how we formulate an answer to a legal problem

Induction

Technique of argumentation where conclusion is drawn from specific facts

Judicial notice

Facts are so well known and evidence is not needed

e.g. sky is blue

Res Ipsa loquitur

Matter speaks for itself