LEGAL PHILOSOPHY (LJU4801) ASSIGNMENT 1 SOLUTIONS
1
According to Kroeze1 regarding the Constitutional Court's approach to judicial decision-making
there are flaws and challenges. The paper is a critical overview of what the Constitutional Court
is doing and has done with constitutional values. Kroeze gives an analysis of the discourse on
constitutional values employed by the Constitutional Court in selected cases. Kroeze points that
to have been that this would result in a movement away from a literalist-intentionalist approach
to a more value-laden or contextual approach to interpretation, at least in the field of
constitutional interpretation. These two approaches were based on positivism, and that this
resulted in the executive-minded decisions of the apartheid years which meant the rejection of
legal values and the separation of law and morality and this combination results in the wooden
and mechanical approach to statutory interpretation.2 Kroeze argues that it is clear that the
expectation of a move away from textualism and intentionalism was not achieved as textualist is
still there in constitutional adjudication. Kroeze looks at the location, purpose and content of
constitutional values.
Question 2
There are three theories of interpretation, the natural, the objectivist and postmodern theories.3
Postmodern theories reject natural law ideas and objectivist theory. Of these theories, Kroeze
uses the postmodern theory.
Kroeze argues that values are seemingly objective criteria that are meant to constrain the
subjective opinion of the judges. Values are used to create the illusion of objectivity. The
purpose of these objective values is to constrain judicial subjectivity. Thus, Kroeze like
postmodern holds that nothing objective constrain judges. The critical theory of postmodern
states that judges make decisions based on the unbounded free play of the judicial mind.4
1
Irma J Kroeze, 'Doing Things with Values: The Role of Constitutional Values in Constitutional
Interpretation' (2001) 12 Stellenbosch L Rev 265.
2
Kroeze, (2001) SLR 265.
3
Kroeze IJ Legal Philosophy: Only Study guide of LJU4801 (University of South Africa Pretoria
2017) 105.
4
Kroeze, Philosophy 123.
1
According to Kroeze1 regarding the Constitutional Court's approach to judicial decision-making
there are flaws and challenges. The paper is a critical overview of what the Constitutional Court
is doing and has done with constitutional values. Kroeze gives an analysis of the discourse on
constitutional values employed by the Constitutional Court in selected cases. Kroeze points that
to have been that this would result in a movement away from a literalist-intentionalist approach
to a more value-laden or contextual approach to interpretation, at least in the field of
constitutional interpretation. These two approaches were based on positivism, and that this
resulted in the executive-minded decisions of the apartheid years which meant the rejection of
legal values and the separation of law and morality and this combination results in the wooden
and mechanical approach to statutory interpretation.2 Kroeze argues that it is clear that the
expectation of a move away from textualism and intentionalism was not achieved as textualist is
still there in constitutional adjudication. Kroeze looks at the location, purpose and content of
constitutional values.
Question 2
There are three theories of interpretation, the natural, the objectivist and postmodern theories.3
Postmodern theories reject natural law ideas and objectivist theory. Of these theories, Kroeze
uses the postmodern theory.
Kroeze argues that values are seemingly objective criteria that are meant to constrain the
subjective opinion of the judges. Values are used to create the illusion of objectivity. The
purpose of these objective values is to constrain judicial subjectivity. Thus, Kroeze like
postmodern holds that nothing objective constrain judges. The critical theory of postmodern
states that judges make decisions based on the unbounded free play of the judicial mind.4
1
Irma J Kroeze, 'Doing Things with Values: The Role of Constitutional Values in Constitutional
Interpretation' (2001) 12 Stellenbosch L Rev 265.
2
Kroeze, (2001) SLR 265.
3
Kroeze IJ Legal Philosophy: Only Study guide of LJU4801 (University of South Africa Pretoria
2017) 105.
4
Kroeze, Philosophy 123.
