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Reflection Paper 2
- Course
- Law (JUR221)
- Institution
- University Of The Western Cape (UWC)
Reflection Paper 2, Tranformative Constituionalism
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3967922 REFLECTION PAPER 2 JUR221Ronald Dworkin is a legal theorist who understood law as an active interpretation, in essence
an interpretive theory of law. Dworkin’s theory adopts a mindset that judges never make law,
they merely apply the law based on precedent, as the existing precedent of law is moral in
nature. He looks at the principles within the legal system, bearing in mind justness, fairness,
and equity, which is the concepts instilled within todays Constitution, a normative legal
system. Dworkin’s theory of law bases the law off of both principles and rules. As depicted in
the case of Rigs v Palmer where the issue at hand was one of succession. Elmer Palmer, the
grandson of Francis Palmer, who was very wealthy, was poisoned by his grandson in order to
obtain his assets. During that era there were no laws set in place such as ‘die bloedige hand
neem geen erfenis’ and Elmer Palmer could still inherit. The legal question was whether a
court may stray from a statutes text to prevent an unjust result. It was decided that yes, based
on the fact where a statute renders an absurd and unreasonable result a court is obliged to
interpret the statutes in a way that displays a lawmaker’s true intention. This clearly
motivates Dworkin’s idea of merely improving the law based of rules and principle and not
just creating new laws having judges give the best moral interpretation to the law, Dworkin
makes a very prominent argument that law is not just merely identifying a set of rules but is
also how we understand and interpret these rules. This is motivated with the Grootboom v
Government of South Africa where the court was dealing with the issue of the right to access
to housing, the Constitution stated under s26(2) that government needs to take reasonable
legislative and other measures to ensure the needs of groups of people are met, by giving the
word ‘reasonable’ a meaning and giving it a moral context it showed the judges interpreting
law in the best moral way possible.
Based on the view depicted in the Grootboom case it is clear to see Dworkin adopts an
understanding that judges do not just make law and do what the desire. He believes that
judges give the best moral interpretation, also known as Constructive interpretation, where
judges constructively interpret the law. This is by judges looking at the history of law and
precedent when they are presented with a new case with the intention of improving the law
by making modifications, to the principles and rules, not just completely making new law.
This is done by adopting a two-dimension test of which needs to be answered: 1. Dimension
of fit, this is the question where one must see if there are similarities between the current case
and previous precedent, every single aspect does not need to be the same but it needs to be
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