LJU4801 STUDY GUIDE

LEARNING UNIT 1: OVERVIEW 1.1 Welcome! Welcome to the module Legal Philosophy (LJU4801)! We are very excited to take you on this journey of discovery. We are convinced that if you approach this module with an open mind; with curiosity; with a willingness to question your own ideas; and with enthusiasm you will enjoy the ride. We cannot wait to show you the way. Two roads diverged in a wood, and I – And that has made all the difference - Robert Frost - This section of the study guide gives you the information you need to start the journey on a road less travelled. We tell you what the purpose of the module is, what our approach is and what we expect from you. We also have some suggestions on how you should approach the learning material and even suggest a study method for you. Please do not skip this section! Knowing what we expect is the not only the key to passing the module but also to do so with the minimum of fuss. At the same time, remember the goal in life is not just to survive, but also to thrive! Having said that, reading just the study guide is not enough to succeed in this module. In tutorial letter 101 there is more information that you need. This tutorial letter contains your lecturers' contact details, the assignments you need to hand in, and the portfolio that is the final examination for this module. It is therefore essential that you study it. In addition, you need to make sure that you access the myUnisa module site at least once a week. Feedback on assignments will not be sent out as tutorial letters but will instead be provided on myUnisa. There are also additional resources and information that will assist you on the site. And with that said we are ready to embark. We sincerely hope you enjoy it. Open Rubric LEARNING UNIT 1: OVERVIEW 2 1.2 Putting the rumours to rest Legal philosophy is unlike most of your other LLB modules. We are not going to be teaching you black-letter law. Black-letter law is what they teach you in modules in private law, mercantile law and so on. Black-letter law consists of knowing the rules, the exceptions, the basic concepts, case law and legislation. As will become clear, that is not what legal philosophy is all about. It is about the big questions behind the rules and precedent and we will discuss these in the rest of the study guide. Because this module is different, you may have heard rumours that it is difficult – this is not true. Legal Philosophy is just as manageable as your other law subjects are; however, it does test different skills. We will detail these skills further on in this chapter. Provided you work consistently through the semester and study hard, you will succeed with this module. Further, if you put in the work you will enjoy this module and become a better lawyer because of it. Learning is an activity and you have to be part of that activity to get the best results. You are not a passive passenger on this journey. In addition, you might hear the term ‘philosophy’ and think: ‘oh, that is so vague’. In fact, many students (and other law teachers) think that legal philosophy is just about your opinion and that there are no right or wrong answers. Well, to an extent this is true, but it is misleading. You DO need to know and understand the basic philosophical ideas we explain and discuss here. You need to be able to provide philosophical arguments to substantiate your viewpoints. And that takes detailed knowledge PLUS practice! It really is not a case of ‘anything goes’. We will explain this more fully below when we talk about the assessment requirements and the study method. 1.3 What do we want to achieve in this module? As with most things, there are different objectives to this module. In the first place, there are things we want to achieve that are specific to this module and that will not form part of any other module. In the second place, there are broader objectives - things we want to achieve that go beyond the content of the module. This second objective is something common to all LLB modules, but which is specifically emphasised in Legal Philosophy. We will discuss these in the next learning unit. LEARNING UNIT 1: OVERVIEW As we said above, the first and most basic purpose of the module is for you to acquire theoretical knowledge of the most important philosophies. Philosophers spend years studying all the different writers and even then, they only scratch the surface! We cannot possibly convey this much information in one semester, so we have selected only some philosophies. We try to select the ones most relevant for South Africa and our society and law. So, if you understand the content of the philosophies we have selected, you are halfway there. The second purpose of this module is to teach you how to present philosophical opinions that are well understood, well researched, well thought out, and well presented. This is a skill that you should have learnt in the rest of the LLB, but it becomes really important in this module. Let's be clear: the life-blood of law is language – especially the written word. In this module, we do not care how you look; what your marks are in other modules; how good your intentions are; or even what you meant to say. We care about how you argue. Good arguments, whether in court, in opinions or in an assignment, rely on four things: proper research, good language skills, proper referencing and critical thinking. Let us look at each of these separately. You cannot win an argument if you haven't done proper research! Missing important information will almost guarantee that you will lose the argument. And finding the information is YOUR job. In the legal profession and in your fourth year of study, no one is going to spoon-feed you. Let us be honest, we are all second- or even third-language English speakers! LEARNING UNIT 1: OVERVIEW 4 Bad English is probably the most spoken language in the world. That is no excuse in an academic assignment. So use the spell-and-grammar checker when using a word processor, write full sentences and do not use SMS language. And always, always check and proofread your work. Then repeat this step about 20 times.... Make sure everyone can see that you know what you are talking about. How do you do this? By referencing! No one stands up in court to say, "this is the law" without having the sources to back the statement up. You will be laughed out of court. The same is true of academia. If you want us to take you seriously, provide us with evidence to show you know what you are talking about. And no, if you only refer to the study guide, you are doing what every first-year student can do, namely copying the study guide. Apart from the fact that it is plagiarism, it does not impress us at all. We will deal with critical thinking in the next learning unit. The third purpose of this module is to help in breaking down silos. Silos refer to the unfortunate tendency of everyone to see legal problems in separate containers, as if such problems can be solved on its own. That is seldom the case – real life is much messier. Here is an example: Imagine that you want to buy a house. You know all the rules for concluding a contract of sale of immovable property, so you imagine you can just apply that. But that is not the only thing you need to know about. You also need to understand how the financing of your property will be arranged, what building regulations the house must meet, what administrative law rules apply in the area where you are buying and so on. Clearly, this is not merely a contractual matter, but covers many fields of law. And then we have not even talked about differences of opinion, your family's ideas and your own fears. Because legal philosophy focuses on the bigger issues, it helps you to see that things are never as simple as they appear. In the next learning unit we will give you more examples of how this idea of, "breaking down silos" is linked to the idea of graduateness. LEARNING UNIT 1: OVERVIEW 1.4 How to approach the study material 1.4.1 General Based on the definition and characteristics of legal philosophy discussed above, we can now move on to more practical matters. The way in which we have defined and characterised legal philosophy will determine how you approach the learning material and what we expect from you. As this is a semester course, the best-case scenario is that you will have only three months to prepare for the examination. If you have not done so yet, we urge you to start with your preparations immediately. Most students find that they have to work through the learning material a number of times before they develop the necessary understanding and sensitivity towards the philosophical issues involved. This requires time and dedication. You cannot begin studying for this module the week before the exam and/or only study certain sections of the work and expect to pass! 1.4.2 The assessment method We have already indicated that this module is different from your other modules. Most other law modules require a lot of memory work and rote learning – in other words it requires you to remember a lot of information that you must then be able to recall and write down in a two-hour venue-based exam. We do not think this is the best way to assess legal philosophy. This module requires insight, application and critical thinking and that cannot be assessed in a tow-hour period. That is why this module is assessed using a portfolio. But what is a portfolio? A portfolio is a way for students to prove to their lecturers that not only do they understand the work, but they have worked throughout the semester to build up the necessary skills and knowledge required. That is why the portfolio contains not only the specific set of questions, but also portfolio assessments that must be completed during the semester. These portfolio assessments, along with the assignments, all build on one another to reach the end-goal of understanding and applying the material. The activities throughout the study guide also function as baby steps in this process. 1.4.3 How to apply legal philosophy LEARNING UNIT 1: OVERVIEW 6 We have already pointed out that legal philosophy is different and that a lot of it has to do with application. In fact, we expect you to be able to read an article or court case and not only identify the author's philosophical point of view, but also be able to criticise it from a variety of perspectives. How do you do that? This question was addressed in a twitter thread (called a tweetorial) on the twitter feed @legalphilosop1. It addresses the question: "How do you identify and/or apply various philosophies?" And a large part of the answer lies in repeatedly doing it. But there is more. To explain the method better, let's think for a moment of how you would apply principles of law in other subjects. For example: you have two people who agreed that one would build a house for the other for a certain price. For various reasons the house is never built. Now one of the parties claims the other is in breach of contract and wants to sue him. What do you do? Well, first of all you have to determine whether there was a valid contract between the two. To do this, you use the requirements of a valid contract (theory) and then test the particulars of this case against that. Eg. was there consensus? Was the price determined? Etc. Well, it's exactly the same with legal philosophy. If you have to read an article to determine if the author used a natural law approach, you would start by looking at the characteristics of natural law. And then look for those characteristics in the article. Does the author have a metaphysical idea? Is he using a rational approach? Does his metaphysical idea determine the validity of human laws? And this is done for all philosophies. Another example: Critical Legal Studies (CLS) has four characteristic ideas: false consciousness, law is politics, interdisciplinarity and indeterminacy. If you read an article, look for all four. If one is missing, it probably isn't CLS. This is why we say that people often mistake authoritarianism for legal positivism. If you only look at the command theory, then you aren't looking at legal positivism because the epistemological and social theories are missing. Not the same thing at all. LEARNING UNIT 1: OVERVIEW So, you can actually plot this on a grid. Use the one I posted, then read the article (probably more than once) and mark off what you find in the article. But also mark what you don't find. Sometimes the absence tells you more than the presence. So, in reality, doing legal philosophy is not that different from doing contract law. You need to know the principles well and then read attentively and see if the principles apply. You already know the method - you just need to apply it. And then: have the courage of your convictions. If you can substantiate your argument, it really cannot be wrong. Don't ask someone to check your opinion before submission. You're not in primary school anymore. 1.4.4 Your lecturers' expectations It is always a good idea to go into a situation knowing what is expected of you. Here is a short list that outlines our expectations of you. First, you need to be able to understand a problem/case as a philosophical problem, not just a legal problem. This means that you need to be able to understand that it is not just competing legal interests that are at stake but also competing philosophical ideas. You need to be able to identify the philosophical problem that is "behind" the everyday, ordinary problems you will be faced with. We like to call this philosophical x-ray vision! Second, you need to be able to display an understanding of the philosophical problem based on your knowledge of the theory. Once you have recognised the philosophical interests involved in a problem you need to be able explain what these philosophical interests are. Third, you need to be able apply the theory to the problem. Knowing the philosophical theory is pointless unless you can apply it to the problem and learn something about the way the world works. This is particularly important in law, where we tend to focus only on the rules/legislation. Your LEARNING UNIT 1: OVERVIEW 8 philosophical x-ray vision will open up a new world for you! It will help you to understand the law and the world in new ways. Fourth, we require you to be able to write! This means using correct grammar, spelling and punctuation. You will be expected to write essays; using full sentences and paragraphs. You will need to be able to explain ideas comprehensively (using your own words) and form a logical, coherent and well thought through answer. Fifth, you need to be able to self-assess. You need to be able to look at your work objectively: to determine whether you have explained concepts such that they are accessible and understandable, that you have shown how the theory applies to a situation, that you have covered all the relevant material etcetera. After all, in court no one is going to be checking that your argument is sound and convincing, you need to do that for yourself. Finally, we need you to have fun with this module. We want you to be creative and critical. We want you to think about the law, to think beyond the boundaries of this study guide. We don’t want you to accept the status quo but instead become critical thinkers. This means that you are going to be expected to be able to form your own opinion. If we ask for your opinion, that opinion cannot be right or wrong. It can, however, be well argued or badly argued. Therefore you will need to be able substantiate your answers and take all other opinions into consideration. LEARNING UNIT 1: OVERVIEW 1.4.5 Assessment of legal philosophy One of the things students are most concerned about is the question of how lecturers assess their answers. As a result of the nature of legal philosophy, there is never a fixed memorandum setting out the so-called "facts" which you should include in your answer. Your discussion is assessed as a whole taking into account your grasp of the issues and the coherence of your answer. So what is it that we expect and don't expect in your answer? You need to be able to explain the theories in your own words. This doesn’t mean that you can summarise the theory; you need to know and understand the nuances of the specific theory. You need to be able to show the marker that you have understood the theory by being able to explain it in your own words. You need to show that you have understood the theory by identifying how one or more of the legal philosophies is applied in a given scenario. You need to be able to argue about the various philosophies. We give you the pros and cons for most of the philosophies in the study guide and we expect you to be able to provide the various arguments, and sometimes, choose between them and to substantiate your choice. You need to reference as per the prescribed method of the School of Law. The prescribed method of referencing for the School of Law is provided on the myUnisa site under Additional Resources. Your assignments and portfolio must be written in clear, correct and concise language. We do not need students to be verbose or to use overly complicated language. If you are unfamiliar with legal academic writing read some law journal articles! Importantly you must not write using bullets and numbering in this module. Avoid these as if they are poisonous! We are not looking for a shopping list LEARNING UNIT 1: OVERVIEW 10 rather you need to provide a narrative consisting of a coherent, logical and consistent argument. Do not use SMS speak! Use correct spelling and grammar at all times. Make use of MSWord spell check (or other built-in spelling and grammar checks). And edit your own work! The excellent student will be able to think beyond the bounds of the study guide. This does not necessarily mean doing more research. Instead, it means students who engage with the theories and material beyond the ordinary. That will present arguments and suggestions that your lecturers may not have considered. The excellent student is not just one who we have made think but one who makes others think! 1.4.5 A note on academic integrity All research in all disciplines must be based on integrity, quality and rigour. All work must meet the ideal of academic integrity. Academic integrity can be defined as the meaningful and concerted effort to ensure honesty, trust, fairness, respect and responsibility in research. All research in the School of Law, whether a first-year assignment or a doctoral thesis, should be guided by this ideal. The opposite of academic integrity is academic dishonesty. The following activities are regarded as forms of academic dishonesty and can result in disciplinary action being taken. Copying/cut-and-paste/patch-writing: This type of dishonesty involves just copying someone else's work either word-for-word or changing it slightly without indicating that it is copied by, for example, putting it in inverted commas or brackets. Absence of references: This involves using someone else's ideas, thoughts, insights or data without acknowledging that they are not your own. Cheating/falsifying information: This is the manufacturing of data which does not exist or leaving out contradictory evidence, also sometimes called cherry-picking. LEARNING UNIT 1: OVERVIEW Padding: This refers to the practice of referring to sources that were not consulted, but which makes the footnotes and/or bibliography seem more impressive. Too many quotes: This form of dishonesty is one where more than 15% of the work consists of quotes. Incorrect referencing: Incorrect referencing shows a lack of rigour and of disciplinary expertise. Helping someone cheat: This might range from the innocuous (allowing someone to copy from you) to the more severe (providing someone with the means to cheat). This is the reason why students are not allowed to hand in the same assignment, even if they worked in a group. It is safe to say that modern communications technology (such as ) makes it very easy to cheat. It makes it possible to get information (and even a completed portfolio) from someone else in an instant. But think about this carefully. We can and do pick up when students have copied from someone else! And we refer these for disciplinary proceedings which has an impact on your future career. But also, you're really cheating yourself! Thousands of people would love to have the opportunity you have of studying. If you don't actually do the work yourself, you are depriving yourself of this privilege. Learning something new is one of the best investments in yourself you will ever make! In the next learning unit we will discuss the nature of legal philosophy. There are many different legal philosophies from around the world and from different periods of time. We cannot teach all of these philosophies in one semester module (and you can’t study them all!) So we have to select from this vast history what we think is going to be most useful to you (whilst we ensure we meet South African and international higher degree standards). This is a very difficult selection. We have to make sure you are exposed to legal philosophies that are popular in South Africa and internationally. And we want to expose you to African legal philosophies that have too long been ignored and undervalued. There are some philosophies that are very popular in the USA but are unpopular in Europe, there are philosophies that are ridiculed in some countries but LEARNING UNIT 1: OVERVIEW 12 loved in others. So it is a difficult balance to strike. In learning unit 3 we will look at some of the persistent debates in the history of legal philosophy. These are legal philosophies that have also had some influence in South Africa and which have traditionally been included in Legal Philosophy modules in South Africa and world-wide. Then, in learning unit 4, we will discuss the African legal philosophies. Although we refer to them throughout, this is where you will find the indepth discussion. In learning unit 5 we consider some of the critical theories. These are theories that flow from a specific development in general philosophy and this will be explained in detail. At Unisa we focus on these theories because they are the theories that are most often discussed in South African legal philosophy today. However, despite the limited number of theories we discuss in this module, the field of legal philosophy is vast and we hope that this module will spark an interest into exploring this field further than your LLB degree. Activity 1.1 On the opposite page, write a personal account in which you evaluate where you are now in terms of your understanding of legal philosophy. Update this as you work through the learning material. Feedback: We think that most of you will not be able to say much at this point. That is okay! The point is that you will be able to see how you are progressing as you work thought the material. 1.6 Additional resources and readings At the end of each learning unit, we provide you with additional material for reading. It is not compulsory to read these, but why wouldn't you? After all, your goal is to learn something new, not just to pass the module. In addition, we provide full references for all the things we discuss in the study guide in the footnotes. This is because that is the correct thing to do academically speaking, but also to encourage you to do the same. Remember that there is a prescribed way of referencing in the School of Law LEARNING UNIT 1: OVERVIEW and you should always adhere to it. If you wish to read more on any topic, feel free to consult these sources. 1 LEARNING UNIT 2: THE FIELD OF STUDY 2.1 Introduction In the previous learning unit, we explained in broad outlines what we expect from you in this module. In this learning unit, we will first of all explain our approach in more detail. We will then move on to a definition of legal philosophy as an introduction to the learning units that follow. Please do not skip this section! It will form part of your formative and summative assessments (assignments and examination). On completion of this learning unit, you will be able to: 1. Explain the concepts of graduateness, critical thinking, and transformative constitutionalism; 2. Apply these ideas and skills to the examples given; 3. Provide an overview of the characteristics and definitions of legal philosophy; 4. Develop and defend your own definition of legal philosophy; 5. Evaluate all definitions based on their adherence to the ideas of graduateness, critical thinking and transformative constitutionalism. 2.2 Broader objectives In the previous learning unit we said that we have objectives that are limited to the module legal philosophy and you should be familiar with these. In this learning unit we will look at the broader objectives. These are applicable to all LLB modules, but we try to apply them specifically in this module. 2.2.1 Graduateness In South Africa, the Council for Higher Education sets the standards which degrees must adhere to in order to be accredited.1 To do this they require those who graduate 1 For more information on the accreditation process, see < Open Rubric LEARNING UNIT 2: DETERMINING THE FIELD 2 to have certain skills, we call this graduateness.2 At Unisa, graduateness is defined as: Graduateness is the composite set of learning outcomes and attributes which students are expected to have achieved when they have completed their qualification successfully. These include discipline-specific knowledge, skills and competencies as well as broader attributes which equip graduates to be innovative and effective in the workplace and active and informed citizens. 3 We can therefore say that a university degree has two main purposes. The first, and probably the one you are the most concerned about, is to prepare you for your chosen career. The second is to turn you into a well-rounded, global citizen. This is a bit of an elusive goal but suffice to say that not only is it our job to get you ready to practice law, it is also our job to make sure you are a good citizen – someone who can contribute to the development of our country and the world. Law graduates need to have an understanding of South Africa’s socio-political and economic environment and be world-wise and be able to practice the law with the compassion, understanding, professionalism and inventiveness that the legal profession requires and that South African society needs. We can therefore say that graduateness is achieved when students exhibit the skills, abilities and capacities of a graduate. These can be described as follows: Such qualities as critical thinking, intellectual curiosity, problem-solving, logical and 2 The Council for Higher Education calls these skill level descriptors. You can find the level descriptors here: < 3 See also < EwiVkfCGwNXSAhXoDcAKHYDAQUQFggYMAA&url=http%3A%2F%2F%2Fsites%2Fdefault%2Ffiles%2Fpublications%2 F_graduateness_&usg=AFQjCNGTZRoF__3MkfndCI0gcTOw1pC62g&sig2= wnpKa3DEWanavnQEH-2vXw&bvm=bv.,d.ZGg> accessed on 14 March 2017. UNIT 2: DETERMINING THE FIELD independent thought, effective communication and related skill in identifying, accessing and managing information; personal attributes such as intellectual rigour, creativity and imagination; and values such as ethical practice, integrity and tolerance. 4 How does legal philosophy do this? Let us explain this using a few examples: Example A: Imagine you are a practicing attorney. A woman comes into your office looking for representation. Mrs Ogg is a new mother and was breastfeeding her baby on a train. She has been charged with the common law crime of public indecency for exposing her breasts. Mrs Ogg thinks this is outrageous; that it discriminates against her as a woman, that it infringes her cultural rights and that it infringes her child’s right to parental care and basic nutrition.5 What would your advice be? The law on public indecency in South Africa is well established. Exposure of the genital organs in public is the primary form of public indecency.6 Should you tell Mrs Ogg that she has contravened the law and, other than trying to reduce her punishment, there is nothing you can do for her? Or should you challenge the law on public indecency? If you accept the black-letter law approach then you may lose a potential client; you also wouldn’t gain the respect and publicity (and thus more clients) that come from high profile cases that develop the law (potentially going all the way to the Constitutional Court, as such a case might). But, there must be a standard, after all that is one of the functions of law; to establish what acceptable behaviour is and what is not. Is this an area of law that needs to be developed or is it still acceptable in our society? How do your morals and culture affect your decision? 4 Higher Education Council, Achieving quality (AGPS 1992) 22. 5 These claims are based on sections 9(3), 31(1) and 28(1)(b) and (c) of The Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the Constitution). 6 R v Marais 1889 6 SC 367; R v B 1955 (3) SA 494 (D). LEARNING UNIT 2: DETERMINING THE FIELD 4 Example B: Mr Tulip is a well-known business owner. However, some of his business practices, whilst legal, have not made him very popular with the South African public. To improve his public image Mr Tulip decides to raise money for an Aids charity. Mr Tulip intends to take advantage of his unpopularity and auction off the opportunity to punch him in the face. A member of the public, Mr Carrot, has offered to pay forty thousand rand if he is allowed to smack Mr. Tulip right in the kisser! Mr Tulip approaches you, as an attorney, to draft the contract between himself and Mr Carrot; to ensure that payment is made and that Mr Carrot is guaranteed his once-in-a-lifetime punch. You know that you cannot conclude a valid contract if the intention of such a contract is to break the law. Punching someone qualifies as assault as it involves applying force to someone; it is a common law crime.7 However, forty thousand rand would be beneficial to the charity and supporting charities is a public good. Do you think the boni mores of the community (the public interest in supporting charities) should outweigh the rules of contract in this case? After all, Mr Tulip is offering to be punched; he is a consenting adult. In addition, Aids is an epidemic in South Africa; Aids charities desperately need funding. Should you draft this contract in the interest of the charity and run the risk of being accused of not being a fit and proper person for the legal profession because you knowingly drafted a contract that contravened the law? Activity 2.1 We have asked quite a few questions pertaining to the two examples above. In the space provided on the opposite page, give your own answers to these questions.