Jurisprudence Notes

Eduvos and the Flipped Classroom

  • Lecturer may recommend concepts to revise based on session difficulty.
  • Focus on myLMS learning opportunities for self-study.
  • Self-study involves working through myLMS content, practice activities, and preparing questions.
  • Lecturer-led sessions involve active learning, Q&A, debates, and practicing technical aspects.
  • Lecturer guides preparation for next session.

Lecturer Consultations

  • 24-hour notice required for appointments.
  • Requests via email or Teams.
  • Detail requirements (chapter, section, etc.).

Assessments

  • Online Test: Week 1-2 content, due Sun, 25 May @ 23:59, 20% weighting.
  • Assignment: Week 1-5 content, due Fri, 6 June @ 23:59, 20% weighting. Groups of 3-4 students.
  • Online Quiz: Week 1-6 content, due Sun, 15 June @ 23:59, 10% weighting.
  • Deferred Online Test: Week 1-2 content, due Wed, 18 June @ 23:59, 20% weighting.
  • Summative (Proctored Exam): All content, Week 8, Date TBC, 50% weighting.

Quiz Recap

  • Mbiti: Validity of kinship norms depends on what?
  • Austin: What is law?
  • Kelsen: What is law?
  • Hart: What is law?

Natural Law

  • AC: 2.2 - 2.7
  • Core principles of classical natural law theory.
  • Contributions of John Finnis and Lon Fuller.
  • Connection between law and morality.
  • Arguments for and against natural law's approach.
  • Compare Lon Fuller and William Idowu.
  • Relevance of natural law in African and South African law.

Prescribed Reading

  • Bilchitz, D., Metz, T. and Oyowe, O. 2017. Jurisprudence in an African Context. Oxford University Press Southern Africa.
  • Chapter 3: What is Law? II: Natural law theory and apartheid (3.1 - 3.4)

Introduction to Natural Law

  • Discussing Naturalism/Natural Law as a major account of law's essence, contrasting with Legal Positivism.

Criticism of Legal Positivism

  • Allows for "evil" legal systems if laws are validly made.

Discussion on "Evil Systems"

  • Questioning whether Legal Positivism would approve of such systems.

Apartheid as an Example

  • Parliament was sovereign, laws passed were beyond question.
  • Political regime framed as a democracy with elections, excluding the majority.
  • Laws based on race: restriction on movement, interracial relationships, land ownership, and education.
  • Positivist interpretation: all laws were valid, despite violating basic human rights.

Land Ownership in South Africa

  • Land overwhelmingly in the hands of the white minority.
  • Land ownership deemed valid according to laws at the time, including forced removals.
  • Questioning whether those were proper laws and the legal imperative to reverse them.
  • Reversal impacts people who purchased land since 1994.

Proposals for Land Reform

  • EFF proposal: State expropriates all commercial land; people lease from the State for 25 years.
  • Bishop Tutu's suggestion: Wealth tax on white people for land redistribution.

Naturalism / Natural Law Defined

  • Whether a norm counts as law depends on moral soundness, not solely on adoption.
  • Legal system consists of practices understood through valid principles of justice.
  • Law is determined by what is morally right.

Natural Law Theory

  • Moral order independent of any particular society.
  • Human laws not adhering to such norms are not fully laws.
  • St Augustine: “An unjust law is no law”.
  • Criteria for measuring whether laws are indeed laws.

Essence of Morality

  • 'Natural law' means general theory of morality.
  • Moral principles discoverable by reason provide rational foundation for moral judgment.
  • Law and morality are intimately connected: injusta non est lex (unjust law does not count as law).

South Africa: Colonial-Apartheid History

  • 1830s: Slavery formally ended.
  • 1913: Natives Land Act prohibited black people from owning land in white areas.
  • 1948: Apartheid established.

Racial Discrimination in South Africa

  • Racially discriminatory government policies until the early 1990s.
  • Provincial pass laws requiring black people to carry documents.
  • Apartheid established in 1948.
  • Some believed God commanded different races not to intermingle.
  • Racial segregation rigorously enforced.

Class Debate: Apartheid Laws

  • Was it wrong for citizens of South Africa to follow apartheid laws?
  • Arguments through Natural Law vs. Legal Positivism.

Four Major Forms of Injustice under Apartheid

  • Autocracy.
  • Restriction on right to representation and land.
  • Restriction on freedom of movement.
  • No equal opportunities.

Autocracy Details

  • Before 1983, only White people could vote.
  • 1983: Tricameral parliament allowed Coloured and Indian people to vote but could not overrule the votes of the White people.
  • Black people could only participate in voting in their ‘homelands’.

Rights to Land Violated

  • Black people only occupied 13% of the land.
  • 1950s: Black people forcefully removed from urban areas to homelands.
  • Areas become ‘whites-only’ areas.
  • Black people needed a pass-book to enter ‘whites-only’ areas.

Freedom of Movement Restricted

  • Restrictions on where races could live and interact.
  • Banned interracial sexual relations and interracial marriages.
  • Notion of ‘separate but equal’: better facilities reserved for White people.
  • Publication criticizing the government was forbidden.

No Equal Opportunities

  • More funding for White schools than for other races.
  • Black people only received education for physical labor jobs.
  • Lack of skills and qualifications prevented Black people from competing for certain jobs.

John Dugard

  • Director of the University of the Witwatersrand’s Centre for Applied Legal Studies.
  • Honorary Professor of Law at the University of Pretoria’s Centre for Human Rights.
  • Ad hoc Judge at the International Court of Justice.

John Dugard on Jurisprudential Influence on Apartheid

  • Belief in Austinian positivism contributed to acceptance of apartheid statutes.
  • Parliament was viewed as a sovereign.
  • Moral-correctness was not needed for something to be regarded as law.
  • However, something regarded as law does not mean it should be enforced.

Where Does Morality Come From?

  • Thomas Aquinas: morality is determined by God’s will.
  • Purpose of human beings – to glorify God, love one another, unite with God in heaven.
  • Fulfilling these purposes is morally right, failure is morally wrong.

Why 'Natural' Instead of 'Supernatural'?

  • God implanted rationale within us to distinguish right from wrong.
  • Morality is ascribed to human reasoning, or what conduces to the realization of human nature (Aristotle).

Lon Fuller

  • American philosopher of law at Harvard University.
  • Influential natural law theorist who engaged with HLA Hart's positivist theory.
  • Expounds a secular account of morality, not appealing to God.
  • Procedural features of a genuine legal system are described as ‘fair’.

Procedural Morality of a Legal System

  • The way a rule has been adopted, promulgated, and enforced determines its status in law.
  • To understand a legal system fully, we need to use concepts of justice.
  • Fuller's description of justice does not appeal to God.

Fuller’s Procedural Naturalism

  • Whether something is a legal system is a matter of a degree.
  • A system is less legal, the less it produces a morality of order.
  • Examples: king punishes obedience, does not publicize rules.

Rejection of Universal, Substantive Morality

  • Difficult to agree on specific moral principles across cultures.
  • Essential procedures that a legal system must follow to be truly functional and legitimate.
  • Theory provides a framework for assessing the morality/fairness/effectiveness of a legal system.

Fuller’s Eight Principles (Inner Morality of Law):

  • Generality: Laws apply to categories, not specific cases.
  • Promulgation: Laws are publicly announced.
  • Prospectivity: Laws apply to future actions.
  • Clarity and understandability: Laws are clear.
  • Consistency: Laws do not contradict each other.
  • Possibility of Compliance: Laws do not demand the impossible.
  • Constancy: Laws are not changed too frequently.
  • Congruence: Government actions reflect stated laws.

Evaluating Fuller’s Naturalism

  • A system is more legal when it includes more morality of order.
  • There does not seem to be anything essentially moral about order as Fuller conceives it.

Problems with Fuller’s Theory

  • When does a body of rules count as a legal system?
  • Legal systems comes in degrees.
  • Fuller's theory does not create a very ‘thick’ conception of what law is.
  • Many apartheid laws comply with his formalities, yet they were still morally wrong.

Procedural Morality vs Substantive Morality

  • Procedural: Concerned with procedures by which laws are made. Morality determined by following correct procedure.
  • Substantive: Concerned with substance of the law. Morality determined by making laws that are just and fair.

The Substantive Morality of Law

  • Content of a norm influences whether it is a law.
  • Whether a norm counts as valid law depends on whether it is morally sound.
  • If a rule is unjust, then it is not law.
  • If a norm is just, it is law.

Natural Law as the Ground of Punishing Injustice

  • People can be punished for acting immorally, even if formal rules permitted them to do so.
  • Not all principles of justice are formal law.
  • Applying this to apartheid: People would be punished for wrongdoing, even though statutes permitted this during that time.

Exercise: Natural Law Approach to Punishing Injustice

  • If we take a Natural Law approach to punishing injustice, it could be possible to punish people for their wrongdoing during apartheid.
  • Do you agree or disagree with this statement?
  • Do you think this would be a viable approach in the post-1994 South African context? Would it work?

Natural Law as the Ground of Legal Obligation

  • Associating law with moral authority.
  • Naturalists: Only if laws are inherently just, can it be reasonable to suppose that they deserve to be obeyed.

Martin Luther King Jr

  • Famous for leading Civil Rights movements in the US.
  • Assassinated in 1968.
  • Provides a natural law theory argument relating to the validity of law.

King on Morality and Law

  • King appears to accept the proposition that we are morally obliged to obey the law.
  • However, law includes what is just.
  • As such, an unjust law cannot be law.
  • This highlights the tension between law and justice.

Dworkin’s Thoughts

  • Ronald Dworkin was a US legal philosopher (passed away in 2013).
  • Argued that to determine what is just, we would need to determine which interpretation of the law is best.
  • Judges cannot avoid appealing to moral principles when trying to ground a sensible decision.

William Idowu

  • Leading African philosopher of law.
  • Known for having argued against Legal Positivism.
  • Lectures at Obafemi Awolowo University in Nigeria.

Idowu’s View of Law as Harmonisation

  • Law consists of norms tending towards the realization of harmony, cohesion, and reconciliation.
  • Concept of restorative justice: humans live in harmony and relation to one another.
  • When this harmony is disrupted, the goal should be to restore this harmony/relationship.
  • Idowu: Law is that which functions to enhance social cohesion.

Evaluating Idowu’s View of Harmonisation

  • Ways to interpret Idowu’s argument:
    • Relativism: What counts as law in one society need not count as law in another one.
    • Complexity: Cannot specify whether Legal Positivism or Natural Law is more right/wrong. Perhaps no essence to law.

Online Test 1 Reminder

  • Due date: Sunday, 25 May 2025 @ 23:59 (Week 3)
  • Scope: Week 1-2
  • Weighting: 20% of final mark

Online Test 1 Details

  • Section A: [10] MCQ (scenario-based, textbook)
  • Section B: [10] Short answer (brief explanation, textbook)
  • Section C: [20] Scenario based (application of principles, textbook)
  • Section D: [10] Agree/Disagree (factual scenarios, textbook)