Jurisprudence take home LAWS2017
JURISPRUDENCE (LAWS2017) TAKE-HOME
EXAMINATION.
NAME
: Rhulani Khoto
STUDENT NO.
: 723990
LECTURER
: Prof. F. Cachalia
COURSE
: Jurisprudence (LAWS2017)
DUE DATE
: 19 May 2014
Question 3 : Impartiality of Judges
'The goddess of justice, Justitia, while not a de facto presiding officer in our legal
system,nonetheless symbolically presides in over all Roman-Law based legal systems all over
the world...Justitia is an important iconic figure for all jurists and jurisprudence through the
ages'1
This figure contains features which are the embodiment of judges, which are; the sword,
which has double edges and suggests both the punitive and protective aspects of the law, 2the
scales, which are balanced, suggest the role of the law in balancing of conflicting interests and
rights and the seeking of fairness and equality, 3 and finally, the most significant feature, for the
purposes of this essay, the 'blindfold of Justitia, which suggests that justice is not swayed by
the appearance of those that appear before her- she is impartial.' 4
In this essay, the impartiality of judges, the approaches to interpretation of the law and judicial
decision- making will be discussed in detail, with reference being made to H.L.A Hart's
interpretative theory, Lon Fuller's theory of meaning and Fuller's fictional case of the
Speluncean explorers.
Impartiality of judges
A judge can be described as an impartial and independent arbitrator, who adjudicates or
presides in disputes between parties who seek legal recourse. 5
The steps taken in South African law to promote the impartiality and independence of judges
and other presiding officers is through judicial independence, as enshrined in the Constitution 6
which states : 'the courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice.' 7
This means that judges should not, in their decisions be influenced by their personal value
systems, moral and religious convictions.
Although it can be note that there is a slight link between law and morality, as both concepts
are concerned with regulating human behaviour, harmonious coexistence and and upholding
social standards, individuals from different schools of thought- for purposed of this essay, the
naturalists and the positivists- treat this link or lack thereof differently.
Interpretation of the law.
In South African law, legislation is one of the five primary sources of law, making it an
important source of law,a sizeable amount of time and effort is taken by the courts in in
applying provisions of from various statutes to matters that are presented before them,
however, prior to this application, the meaning of that particular statute mus be established.
Interpretation is imperative, as it will give meaning of the statute that was drafted, the purpose
of the statute and will help avoid vagueness or absurdity from the words used in that particular
1
2
3
4
5
6
7
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012) 271
Ibid
Ibid
Ibid
Ibid 186
Constitution of the Republic of South Africa Act 108 of 1996
Ibid s165(2)
statute. There are various approaches used as tools for interpretation and two theories from
two different jurisprudential schools of thought will be discussed below.
H.L.A Hart's Interpretative Theory
Hart belongs to the positivist school of thought, who are firm believers in the fact that the law
was engineered by humans, for humans.
He formulated a theory, which was between formalism and realism, 8 from the formalistic point
of view, he stated that 'legal rules can and often do have determinate meaning- that is there
are often cases where it is clear that the rule does apply to the facts ' 9 he called this 'the core
of certainty.'10
From a realist point of view, he then stated that 'there are cases where it is nit certain whether
a particular rule applies to the facts or not,' 11 this, as Hart believes, is attribute to having rules
being engineered in general terms, meaning that all cases which the rule applies cannot
possibly be known,12 he called this 'the penumbra of doubt.' 13
In this instance of doubt, Hart said:
' The conclusion,even though it may be
arbitrary or irrational, is in fact a choice.' 14
The above statement means that the judge 'has to exercise at least to a certain extent, extrajudicial moral reasoning,'15meaning that here, the judges moral convictions and reasoning
come into play.
This theory was rejected by Ronald Dworkin, among others, on the grounds that Hart did not
take into account, the fact that 'the legal system consists of principles and policies, which
judges invoke when they decide cases,'16 these principles are moral, political and legal in
nature, and thus no distinction can be drawn between the law and morality, 17 'as is the case
with positivism.'18
Harts theory can be seen in the literal approach (cardinal rule) used in South African law,
where the courts interpret a piece of legislation by means of giving the words used in the
legislation their literal meaning.
It is believed that in this approach, the words used in the legislation are a way of determining
the intention of the legislation.
Lon Fuller's Theory of Meaning
Fuller belongs to the naturalist school of thought, they are of the opinion that the law is
conferred by a higher power and it is used as a yardstick for testing laws.
He 'believes that rules must be interpreted in ways that yield just or reasonable results.' 19
8
9
10
11
12
13
14
15
16
17
18
19
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012) 206
Ibid
H.L.A Hart The Concept of Law 2ed (1994) 123
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012) 206
H.L.A Hart The Concept of Law 2ed (1994)128
Ibid 123
Ibid 127
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012)206
Ibid 207
Ibid
Ibid
D Meyers Jurisprudence(2013) 136
Fuller's theory is also a challenge to Hart's interpretative theory, on the basis that judges are
'always determining what the law is , but in doing so they are also drawing on their beliefs
about what is ought to be,'20he advocates for the fact that 'the purpose of the rule needs to be
known, in order to know what it clearly covers.'21
In this theory, Fuller means that the 'judges should investigate the lawmakers' intention in
enacting the rule and also focusing on what the lawmakers subjectively intended to say with
the words they used.'22
Elements of Fuller's theory can be seen in the purposive approach (mischief rule), where the
interpretation is not only from a contextual nature, but for the “mischief”or social evil that the
lawmaker was attempting to eradicate.
Judicial Decision- Making
In this part of the essay, reference will be made to Fuller's fiction case of the Speluncean
Explorers23 where 'the different opinions in the case are informed by different judicial
philosophies.'24
In this case, a group of five entered a cave and were trapped in it due to a rock fall and they
eventually killed and ate one of their own, as a means of survival while awaiting to be rescued,
they were later charged with murder and were sentenced to death, on appeal, the question
was whether, this was a suitable punishment for a crime of this magnitude.
The judges in the case were of different schools of thought,as mentioned above, namely
among others, positivism and naturalism. Foster J,comes from a natural law perspective by,
'identifying the law with the interpretation of the materials that would make the law a
defensible and justifiable law.'25
Keen J is a strong advocate of legal positivism and he believes that the mentality of the
lawmakers represents the law and it must be duly executed and he is clearly of the belief that
the law and morality are two separate entities that should not overlap.
It can be seen clearly that the schools of thought which the judges are from, influence their
decisions.
Conclusion
In conclusion, it can be seen in the essay that,impartiality is an integral characteristic of judges
and that the law has taken measures in ensuring judicial independence and impartiality, by
means of s165(2) of the Constitution,it can also be seen that the law and morality are
concepts which tend to be separate or overlap, depending upon which school of thought the
judge is informed by.
Finally, naturalist and positivist theories have aided the construction of approaches to the
interpretation of the law, which are a tool to judges in reaching their decisions in the matters
that they are presiding in.
20
21
22
23
24
25
Ibid 137
Ibid
Ibid 138
Ibid 144
Ibid
Ibid
EXAMINATION.
NAME
: Rhulani Khoto
STUDENT NO.
: 723990
LECTURER
: Prof. F. Cachalia
COURSE
: Jurisprudence (LAWS2017)
DUE DATE
: 19 May 2014
Question 3 : Impartiality of Judges
'The goddess of justice, Justitia, while not a de facto presiding officer in our legal
system,nonetheless symbolically presides in over all Roman-Law based legal systems all over
the world...Justitia is an important iconic figure for all jurists and jurisprudence through the
ages'1
This figure contains features which are the embodiment of judges, which are; the sword,
which has double edges and suggests both the punitive and protective aspects of the law, 2the
scales, which are balanced, suggest the role of the law in balancing of conflicting interests and
rights and the seeking of fairness and equality, 3 and finally, the most significant feature, for the
purposes of this essay, the 'blindfold of Justitia, which suggests that justice is not swayed by
the appearance of those that appear before her- she is impartial.' 4
In this essay, the impartiality of judges, the approaches to interpretation of the law and judicial
decision- making will be discussed in detail, with reference being made to H.L.A Hart's
interpretative theory, Lon Fuller's theory of meaning and Fuller's fictional case of the
Speluncean explorers.
Impartiality of judges
A judge can be described as an impartial and independent arbitrator, who adjudicates or
presides in disputes between parties who seek legal recourse. 5
The steps taken in South African law to promote the impartiality and independence of judges
and other presiding officers is through judicial independence, as enshrined in the Constitution 6
which states : 'the courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice.' 7
This means that judges should not, in their decisions be influenced by their personal value
systems, moral and religious convictions.
Although it can be note that there is a slight link between law and morality, as both concepts
are concerned with regulating human behaviour, harmonious coexistence and and upholding
social standards, individuals from different schools of thought- for purposed of this essay, the
naturalists and the positivists- treat this link or lack thereof differently.
Interpretation of the law.
In South African law, legislation is one of the five primary sources of law, making it an
important source of law,a sizeable amount of time and effort is taken by the courts in in
applying provisions of from various statutes to matters that are presented before them,
however, prior to this application, the meaning of that particular statute mus be established.
Interpretation is imperative, as it will give meaning of the statute that was drafted, the purpose
of the statute and will help avoid vagueness or absurdity from the words used in that particular
1
2
3
4
5
6
7
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012) 271
Ibid
Ibid
Ibid
Ibid 186
Constitution of the Republic of South Africa Act 108 of 1996
Ibid s165(2)
statute. There are various approaches used as tools for interpretation and two theories from
two different jurisprudential schools of thought will be discussed below.
H.L.A Hart's Interpretative Theory
Hart belongs to the positivist school of thought, who are firm believers in the fact that the law
was engineered by humans, for humans.
He formulated a theory, which was between formalism and realism, 8 from the formalistic point
of view, he stated that 'legal rules can and often do have determinate meaning- that is there
are often cases where it is clear that the rule does apply to the facts ' 9 he called this 'the core
of certainty.'10
From a realist point of view, he then stated that 'there are cases where it is nit certain whether
a particular rule applies to the facts or not,' 11 this, as Hart believes, is attribute to having rules
being engineered in general terms, meaning that all cases which the rule applies cannot
possibly be known,12 he called this 'the penumbra of doubt.' 13
In this instance of doubt, Hart said:
' The conclusion,even though it may be
arbitrary or irrational, is in fact a choice.' 14
The above statement means that the judge 'has to exercise at least to a certain extent, extrajudicial moral reasoning,'15meaning that here, the judges moral convictions and reasoning
come into play.
This theory was rejected by Ronald Dworkin, among others, on the grounds that Hart did not
take into account, the fact that 'the legal system consists of principles and policies, which
judges invoke when they decide cases,'16 these principles are moral, political and legal in
nature, and thus no distinction can be drawn between the law and morality, 17 'as is the case
with positivism.'18
Harts theory can be seen in the literal approach (cardinal rule) used in South African law,
where the courts interpret a piece of legislation by means of giving the words used in the
legislation their literal meaning.
It is believed that in this approach, the words used in the legislation are a way of determining
the intention of the legislation.
Lon Fuller's Theory of Meaning
Fuller belongs to the naturalist school of thought, they are of the opinion that the law is
conferred by a higher power and it is used as a yardstick for testing laws.
He 'believes that rules must be interpreted in ways that yield just or reasonable results.' 19
8
9
10
11
12
13
14
15
16
17
18
19
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012) 206
Ibid
H.L.A Hart The Concept of Law 2ed (1994) 123
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012) 206
H.L.A Hart The Concept of Law 2ed (1994)128
Ibid 123
Ibid 127
T Humby,L Kotze& a Du Plessis, et al Introduction to Law and Legal Skills in South Africa (2012)206
Ibid 207
Ibid
Ibid
D Meyers Jurisprudence(2013) 136
Fuller's theory is also a challenge to Hart's interpretative theory, on the basis that judges are
'always determining what the law is , but in doing so they are also drawing on their beliefs
about what is ought to be,'20he advocates for the fact that 'the purpose of the rule needs to be
known, in order to know what it clearly covers.'21
In this theory, Fuller means that the 'judges should investigate the lawmakers' intention in
enacting the rule and also focusing on what the lawmakers subjectively intended to say with
the words they used.'22
Elements of Fuller's theory can be seen in the purposive approach (mischief rule), where the
interpretation is not only from a contextual nature, but for the “mischief”or social evil that the
lawmaker was attempting to eradicate.
Judicial Decision- Making
In this part of the essay, reference will be made to Fuller's fiction case of the Speluncean
Explorers23 where 'the different opinions in the case are informed by different judicial
philosophies.'24
In this case, a group of five entered a cave and were trapped in it due to a rock fall and they
eventually killed and ate one of their own, as a means of survival while awaiting to be rescued,
they were later charged with murder and were sentenced to death, on appeal, the question
was whether, this was a suitable punishment for a crime of this magnitude.
The judges in the case were of different schools of thought,as mentioned above, namely
among others, positivism and naturalism. Foster J,comes from a natural law perspective by,
'identifying the law with the interpretation of the materials that would make the law a
defensible and justifiable law.'25
Keen J is a strong advocate of legal positivism and he believes that the mentality of the
lawmakers represents the law and it must be duly executed and he is clearly of the belief that
the law and morality are two separate entities that should not overlap.
It can be seen clearly that the schools of thought which the judges are from, influence their
decisions.
Conclusion
In conclusion, it can be seen in the essay that,impartiality is an integral characteristic of judges
and that the law has taken measures in ensuring judicial independence and impartiality, by
means of s165(2) of the Constitution,it can also be seen that the law and morality are
concepts which tend to be separate or overlap, depending upon which school of thought the
judge is informed by.
Finally, naturalist and positivist theories have aided the construction of approaches to the
interpretation of the law, which are a tool to judges in reaching their decisions in the matters
that they are presiding in.
20
21
22
23
24
25
Ibid 137
Ibid
Ibid 138
Ibid 144
Ibid
Ibid