LJU4801 Assignment 1 Semester 1 for 2021- Legal philosophy. Distinction guarantee

.LJU4801 ASSIGNMENT 1 SEMESTER 1 FOR 2021 .LEGAL PHILOSOPHY .DISTINCTION GUARANTEED Question 1. According to Kroeze constitutional values are not fully unraveled and clearly marked as they are not fully explained.1 He therefore advocates for a clear separation of law and morality which will bring to light what is in the constitutional document and what is perceived as values outside the constitutional framework. In this regard Kroeze`s recommendation is the implementation of a realist-cum-naturalist approach in determining the constitutional values as this will make it easier for the courts to makes deliberations on the values that are not in the constitutional document. Kroeze highlights 1 Kroeze, I. J. (2001). Doing things with values: The role of constitutional values in constitutional interpretation. Stellenbosch Law Review, 12(2), 265-276. Downloaded by: DESMONDCHIKASHA | Distribution of this document is illegal This study source was downloaded by from CourseH on :29:59 GMT -06:00 S - The Marketplace to Buy and Sell your Study Material the three aspects raised by the constitutional court on constitutional values which is location, purpose and content.2 Kroeze however brings to light that the courts work on the assumption that values are the kind of things that have location. This therefore poses challenges for the courts in cases where the values don’t have a location. These are seldom dealt with explicitly in judgements and are often deduced from language and arguments which is a challenge on its own. It is therefore in this regard that the Kroos advocates for a value-laden approach that will save the courts by being considerate to the values outside the constitutional document. Kroeze also addresses the confusion that is associated with values and Ubuntu with Mokgoro and Langa bringing different dimensions.3 Question 2. Kroeze is advocating for a realist-cum-naturalist approach as the only way that constitutional values can be determined without separating between law and morality. This entails a value-laden or contextual approach to the constitutional interpretation. Once there is separation between law and morality the courts find it hard to determine the values outside the constitutional document. Kroeze is critical of the approach employed by the South African justice system which is the ‘literalist-internationalist’ approach which lobbies for the separation of the two. Kroeze poses the question of where is the source of these values? If the courts can determine these it will pave way for and informed decision making process as far as constitutional values are concerned.4 The fact that some of the values are found outside of the Constitution poses a threat that some of them may not be found or considered valuable in important decision-making processes which renders the moral part of the law useless. In most of the judgments, the outside is described in terms of the values of 2Irma J Kroeze, "Doing Things with Values: The Role of Constitutional Values in Constitutional Interpretation" (2001) 12:2 Stellenbosch L Rev 265. 3 Kroeze, I. J. (2001). Doing things with values: The role of constitutional values in constitutional interpretation. Stellenbo