A central debate in jurisprudence concerns the nature of the judicial obligation in 'hard' cases ones that turn on con- tested points of law. The legal positivists hold that judges have to exercise a discretionary power, not ultimately constrained by law, to decide such cases. Ronald Dworkin has argued that the decision of such cases is determined by law: judges must apply a 'soundest theory' which explains and morally justifies the existing law. Positivists respond that 'wicked' legal systems ones which are the instrument of a repugnant moral ideology are a counterexample to Dworkin. I set out this debate and then evaluate these rival positions in a case study of judicial interpretation in the South African legal system, which is the standard example of a wicked one. I argue that, in the historical and political context of a the South African legal system (Ch.2), the first part of the study (Chs.3,4,5) shows that positivist ideas not only fail to assist judges in a wicked legal system, but make things worse. I argue that the rest of the study (Chs.6,7,) shows how judges do better who adopt the advice that Dworkin gives. I also suggest that their approach can only be stop- ped at the cost of great damage to a legal system and that this should lead us to take seriously ideas put forward by Lon Fuller.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:253804 |
| Date | January 1989 |
| Creators | Dyzenhaus, David Ludovic |
| Publisher | University of Oxford |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | https://ora.ox.ac.uk/objects/uuid:86076a22-0626-42da-830b-5324635f1098 |
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