Transcript Law as prohibiting V law as enabling

Le droit comme ordonnancement
social
January 10th, 2011
Damian Marczuk
David Seni
Nardia Tonge
Agenda
Case Summaries
Law, Time and Change
Morality and Law
Law: Restrictor or Enabler?
Class Discussion
Agenda
Case Summaries
Law, Time and Change
Morality and Law
Law: Restrictor or Enabler?
Class Discussion
Case Summaries
Because you have already read them…
• Re: Drummond Wren (1945)
• Re: Noble and Wolf (1948)
• Judges and Injustice
• Should Judges Resign? - A Reply to Professor Wacks
• Judging Judges: A Brief Rejoiner to Professor Dugard
Agenda
Case Overview
Law, Time and Change
Morality and Law
Law: Restrictor or Enabler?
Class Discussion
Law, Time and Change
Law, within a society, constantly evolves and changes over time…
… however, this change cannot occur too rapidly or sharply
Evolves over time
Evolution restricted
Legislation
Restricted use of public policy
Contract law
Role of precedent
Common law
Judges’ role to interpret, not make, the law
International law
“Existing rules and principles can give us our present location, our bearings, our
latitude and longitude. The inn that shelters for the night is not the journey’s
end. The law, like the traveler, must be ready for the morrow. It must have a
principle of growth.” Pg 2 Re: Drummond Wren
Law, Time and Change
Law can be used simultaneously as a tool to protect the elite and
maintain the status quo …
…and be used as a tool for reform and change
Status Quo
Reform
Legislation (Parliament)
Legislation (Parliament)
Interpretation
Interpretation
Courts as instruments of government
power
International law
Boycotting (actions external to the
system)
Agenda
Case Summaries
Law, Time and Change
Morality and Law
Law: Restrictor or Enabler?
Class Discussion
Law and Morality
Dugard
Wacks
Judges can advance the cause of justice
in a unjust system
Judges have discretionary powers
(positivist assumption)
When faced with an unjust legal order, Judges
should resign on moral grounds
A Judge has no real discretion; must weigh
opposing principles to come up with “right”
answer
Normative view of judge’s role
Descriptive view of judge’s role
Judges ought to use overarching
principles of the legal tradition (e.g.
common law principles) to counter
unjust laws
Law as a social construction
In practice, judges rarely use overarching
principles to counter unjust laws of the legal
system
Law is not detached from morality: we must
 Judge in Noble & Wolf would probably allow judges to exercise moral decisions (such
agree with Dugard: It’s not up to lawyers as resignation).
to decide what is best for the public
 Judge in Drummond would probably agree
good, rather it is up to the legislation to with Wacks: practice of law is highly
do so.
moralized; importance of universal principles.
Agenda
Case Summaries
Law, Time and Change
Morality and Law
Law: Restrictor or Enabler?
Class Discussion
Law: Restrictor or Enabler?
Do the cases suggest that people can organize their society as they wish?
Re Drummond Wren
Re Noble and Wolf
Restricts freedom to contract if contract
is against public policy (Society
organized democratically?)
People’s freedom to contract
supersedes public policy (People
organize society as they wish?)
Seems not to allow imposed
segregation of groups within society –
encourages the idea of equality
Allows ideas of racial segregation and of
restricting certain property rights to
certain groups of people
Enables people to sell land freely to
whomever they want to,
notwithstanding such covenants in
question
Seems to allow people to impose onto
others who they can sell their property
to – but only if there is a time
constraint. Maximum length?
Previous owner seems to have limited
power as to future of property
Previous owner can place restrictions
on subsequent alienation
Law: Restrictor or Enabler?
Who is enabled and who is limited by law in South Africa?
Group
Impact
Blacks,
Colored
Not represented, oppressed by apartheid laws. But
perhaps minimally protected by certain principles,
although not widely used (Dugard).
Whites
White elite control Government and judiciary, and are
most represented. Benefit widely and are enabled to do
most things they want to (Whites organize society?).
Government
Broad powers, but perhaps it could be restricted at times
if judges use tools of interpretation to render moral
judgments (Dugard). Although in the long run, appeals
and amendments prevent this (Wacks).
Judges
Prohibited from rendering moral judgments (Wacks).
Caught in between ideology of people and of Government
or whites.
Is the situation the same today? What about elsewhere?
Law: Restrictor or Enabler?
• Law in S.A. is imposed on blacks by whites, used as a tool
• Legitimacy? Blacks revolted several times…
• Fight by blacks from the bottom and by whites from the top
with judges in between
• No real democracy, representatives not elected by majority
• Dugard: Natural law: principles that transcend any legal
system. But not very present in S.A.
• Principles of “community morality” or “institutional
history” are biased
• Any attempt to have law emanating from majority would
fail because of appeals / legislature
• Revert to violence: Law unable to organize society
effectively by itself?
Agenda
Case Summaries
Law, Time and Change
Morality and Law
Law: Restrictor or Enabler?
Class Discussion
Class Discussion
• De quelle manière les principes universelles de droit affectent le rôle des
juges? Est-ce que le droit et la moralité sont plus étroitement liés?
• Quelles sont les méthodes les plus efficaces pour changer un systeme de
droit injuste et oppressif (apartheid de l’Afrique du Sud)?
• Que pensez-vous de cette citation: ‘’judges are more to be trusted as
interpreters of the law than as expounders of what is called public policy.’’