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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.’’