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UNIVERSITY OF SOUTH AFRICALegal philosophy ( LJU4801) Assignment 01.
Solutions.
, Give a concise summary of the author's viewpoint. Make sure you
concentrate on legal philosophy and not so much legislation. (Max
word count 200.) (5)
Tsele deliberates the relationship and apparent tension between a Judge’s
duty to apply the law in a fair and impartial manner and his or her own
personal right to freedom of religion, and the extent to which those religious
views might influence a Judge in the adjudication of disputes. According to
Tsele, ‘this dictum illustrates that the limitation to Judges expressing their
social views is narrowly interpreted and will, in most instances, be limited to
situations that involve the adjudication of cases’. Certainly, what should be
clear on a conspectus of all of the above is that a Judge is a citizen, entitled
to hold religious views and entitled to freely express him or herself so long
as it does not compromise the discharge of his or her judicial duties.
Accordingly, where a Judge holds views, religious or otherwise, this does
not, without more, constitute partiality, inherently compromising their ability
to adjudicate disputes or their ability to discharge their judicial functions.
What theory of interpretation that you have studied is addressed in
the article? Why do you say this? You need to identify the theory you
have studied that is most closely associated with the author's
viewpoint.
Legal positivism is a philosophy of law that emphasizes the conventional
nature of law— that it is socially constructed. The word “positivism” was
probably first used to draw attention to the idea that law is “positive” or
“posited,” as opposed to being “natural” in the sense of being derived from
natural law or morality. According to legal positivism, law is synonymous
with positive norms, that is, norms made by the legislator or considered
as common law or case law. Formal criteria of law’s origin, law
enforcement and legal effectiveness are all sufficient for social norms to be
considered law. Legal positivism
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