LEGAL PHILOSOPHY:
THEME 1: INTRODUCTION
• What is philosophy?
• What is legal philosophy or jurisprudence?
o Typical questions
• Why study it?
o Contexts in which these questions become pertinent
• “Where am I? What does it mean to say: the world? What is the meaning of the world?
Who tricked me into this whole thing and leaves me standing here? Who am I? How
did I get into the world? Why was I not asked about it, why was I not informed of the
rules and regulations and just thrust into the ranks? How did I get involved in the big
enterprise called reality? Why should I be involved? Isn’t it a matter of choice? If I am
compelled to be involved, where is the manager? I have something to say about this.
Is there no manager? To whom shall I make my complaint?” - Søren Kierkegaard
QUESTIONS OCCUPYING LEGAL PHILOSOPHERS:
• How, if at all, is law related to justice?
o How do we know the law is just? What should happen when a law is not just?
• What counts as a just distribution of resources? What role should law play in bringing
about a just distribution?
o If justice means that every person should get his/her due, when is there a just
distribution of resources, wealth, opportunities and alike.
o What role should the law play in bringing about a just distribution?
o The law of taxation as an example is intimately involved with the question:
what is and what should be a just distribution of resources.
o Many branches of our law including the law of contract, the law of property,
the law of delict, the law of succession is very closely linked to distributive
questions because these branches of law have distributive effects.
o The fact that a wealthy person can leave his/her possessions to their children
or whoever has enormous distributive consequences.
o An argument could be made that that wealth should revert back to society and
not to particular individuals.
• When and why must legal rules be obeyed?
o Are there circumstances in which we should be at liberty to disobey the law?
o Example of disobedience: protests against the wearing of masks during the
corona virus pandemic, protests against police brutality against black people,
protests against inadequate service deliver.
o In what circumstances could it be legitimate to disobey the law?
• Is law neutral and objective?
, • How does law deal with differences based on race, sex, gender, sexual orientation,
economic class, etc?
• How ought law to deal with these differences?
o There are some people who would say that those differences should never be
taken into account by the law.
o There are many other people who would say that, if that is the case, it would
have unjust consequences for women, who would then not be entitled to
maternity leave or whatever other benefits accrue from the fact that they bear
the burden of child bearing.
• What are the basic assumptions underlying the theory and practice of law? Are these
assumptions valid?
o This is a crucial legal philosophical question because philosophers are not
content just to look at the surface of how the world presents itself to us.
o They are not only interested in the empirical things that we can observe, they
are interested in the way we think about things, our concepts, our
assumptions, our mental habits.
o One of the crucial legal philosophical questions deals with the assumptions
that we make when we think about and practice the law.
o Are these assumptions valid? And are there alternative ways of thinking about
the law that may be equally valid?
WHY LEGAL PHILOSOPHY? (WHY IS LEGAL PHILOSOPHY IMPORTANT TO LAWYERS)
• Philosophy’s historical influence
• Leadership in the face of change
• Improving lawyering and argumentative skills
• Imagining alternative social worlds.
o The role of legal philosophy in helping us to imagine alternative and more just
social worlds.
PHILOSOPHY’S HISTORICAL INFLUENCE:
• Legal concepts, assumptions and principles have historically been shaped by
philosophers and legal philosophers.
o Our legal concepts, the assumptions underlying our thinking about the law as
well as legal principles have historically been shaped, been influenced by
philosophers and legal philosophers.
• E.g. right, subject, property, contract.
o When we encounter a legal concept such as rights, the idea of a right, or of
property, or of a contract, we don’t think of it as a very philosophical concept
because we have a working definition of it, we have all the case law dealing
, with it, we have all the handbooks and we often deal with it in a rather
technical, almost a common sensical manner.
• Today, law still reflects these influences, although we are seldom aware of them.
o Many of these concepts became part of the way we think and talk about the
law as a result of the work of legal thinkers and philosophers.
o We are in any event heavily influenced by their thought. Sometimes we might
want to escape from their strictures of what they thought about these
concepts. In order to do so we need to get a better understanding of what they
actually said.
o The point is not to follow these old legal philosophers slavishly, the point is
exactly to be able in a transformative society, in a society committed to
transformative constitutionalism – the point is that we want to be able to
sometimes say that we need to transform, and we need to change the way we
think about a particular branch of law.
• Revisit philosophical debates
o Book by Richard Tuck, Natural Rights Theories, in which Tuck shows the origins
of the concept of right and subjective rights.
o In this book he shows how these concepts developed out of sometimes very
obscure medieval, legal philosophical and theological debates.
o There was for instance a debate whether a monk should be allowed to own
property even if it is just the clothes that he is wearing.
o The medieval philosophers had lengthy debates about the concept of a right,
about the concept of property and then Tuck shows how some of these
debates are still profoundly shaping the way we think about concepts.
• Recognise that law was created by humans, in response to particular needs and
circumstances.
o The point is to recognise that law is a human creation. It was created (all laws
and legal concepts) by human beings at a particular time in history in response
to particular needs and circumstances.
o It is a liberating thought because it means the law/legal concepts no longer
serves us in our current environment we should be able to rethink them and
adapt them to our changing needs and therefore legal philosophy can be of
real service.
• Critically re-examine our assumptions, adapt them to changing circumstances.
o The point is to critically use legal philosophy to critically re-examine our
assumptions and to adapt them to changing circumstances.
LEADERSHIP IN THE FACE OF CHANGE:
• The role that legal philosophy can play in the face of societal change.
• A second reason we should look to legal philosophy is because of the need to adapt
to change.
, • It is clear that we are living in a society which is changing very rapidly.
• Technological advances and their implications for legal profession.
o One source of change is technological change (the 4th Industrial revolution) and
the implications of this technological change for the legal profession.
• Global warming, pandemics, refugees and displaced persons, poverty and
unemployment.
o Global warming: a huge crisis with tremendous implications/ poverty and
unemployment = these are all global challenges and the law needs to be
incredibly creative in trying to come up with answers to these questions.
ARGUING CASES:
• Vagueness and ambiguity:
o Legal rules are typically vague and ambiguous.
o Hart: penumbra of uncertainty
▪ The great British legal philosopher HLA Hart said that legal rules have a
penumbra of uncertainty, even though he was a legal positivist he was
quite honest in recognising that legal rules often have an area of
uncertainty and Hart said in those areas we need legal philosophy. We
need to have recourse to values and policy considerations.
• Conflicts:
o Between different legal rules, values and principles
o Between different fields of law, e.g. labour law and administrative law, or
between common law and customary law.
o Between overlapping legal systems, e.g. international and national law, or EU
law and national law.
o There are often cases in which different legal rules, different values and
different legal principles conflict with each other or where the law is vague and
unambiguous and that in such cases it is impossible simply to apply the legal
rule in an unproblematic manner and therefore we will need to dig deeper.
EXAMPLE OF CONFLICT:
• Case between Mrs Tumane, Bgakgatla – Ba – Kgafela Tribunal Authority and SA Human
Rights Commission (“burial rights case”)
o As discussed by J Comaroff and J Comaroff “Reflections on liberalism,
policulturalism, and ID-ology: citizenship and difference in South Africa” 2003
Social Identities 445.
BURIAL RITES CASES:
• Tswana convention requiring a newly bereaved spouse to sprinkle a herb – mogaga –
when walking in communal space, to prevent spreading of death.
