LJU4801 Assignment 1
666563
, 1. Give a concise summary of the author's viewpoint. Make sure you
concentrate on legal philosophy and not so much legislation
Tsele deliberates the relationship and apparent tension between a Judge’s duty
to apply the law in a fair and impartial manner and his or her own personal right
to freedom of religion, and the extent to which those religious views might
influence a Judge in the adjudication of disputes.1
According to Tsele, ‘this dictum illustrates that the limitation to Judges
expressing their social views is narrowly interpreted and will, in most instances,
be limited to situations that involve the adjudication of cases’.2
Certainly, what should be clear on a conspectus of all of the above is that a
Judge is a citizen, entitled to hold religious views and entitled to freely express
him or herself so long as it does not compromise the discharge of his or her
judicial duties.
Accordingly, where a Judge holds views, religious or otherwise, this does not,
without more, constitute partiality, inherently compromising their ability to
adjudicate disputes or their ability to discharge their judicial functions.3
2. What theory of interpretation that you have studied is addressed in the
article? Why do you say this? You need to identify the theory you have
studied that is most closely associated with the author's viewpoint.
Legal positivism is a philosophy of law that emphasizes the conventional nature
of law— that it is socially constructed. The word “positivism” was probably first
used to draw attention to the idea that law is “positive” or “posited,” as opposed
to being “natural” in the sense of being derived from natural law or morality.
According to legal positivism, law is synonymous with positive norms, that is,
norms made by the legislator or considered as common law or case law. Formal
criteria of law’s origin, law enforcement and legal effectiveness are all sufficient
for social norms to be considered law. Legal positivism does not base law on
divine commandments, reason, or human rights. As an historical matter,
positivism arose in opposition to classical natural law theory, according to which
there are necessary moral constraints on the content of law.
1 Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) 43 (1) Journal for
Juridical Sciences 1- 25.
2 Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) 43 (1) Journal for
Juridical Sciences page 9.
3 Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) 43 (1) Journal for
Juridical Sciences
666563
, 1. Give a concise summary of the author's viewpoint. Make sure you
concentrate on legal philosophy and not so much legislation
Tsele deliberates the relationship and apparent tension between a Judge’s duty
to apply the law in a fair and impartial manner and his or her own personal right
to freedom of religion, and the extent to which those religious views might
influence a Judge in the adjudication of disputes.1
According to Tsele, ‘this dictum illustrates that the limitation to Judges
expressing their social views is narrowly interpreted and will, in most instances,
be limited to situations that involve the adjudication of cases’.2
Certainly, what should be clear on a conspectus of all of the above is that a
Judge is a citizen, entitled to hold religious views and entitled to freely express
him or herself so long as it does not compromise the discharge of his or her
judicial duties.
Accordingly, where a Judge holds views, religious or otherwise, this does not,
without more, constitute partiality, inherently compromising their ability to
adjudicate disputes or their ability to discharge their judicial functions.3
2. What theory of interpretation that you have studied is addressed in the
article? Why do you say this? You need to identify the theory you have
studied that is most closely associated with the author's viewpoint.
Legal positivism is a philosophy of law that emphasizes the conventional nature
of law— that it is socially constructed. The word “positivism” was probably first
used to draw attention to the idea that law is “positive” or “posited,” as opposed
to being “natural” in the sense of being derived from natural law or morality.
According to legal positivism, law is synonymous with positive norms, that is,
norms made by the legislator or considered as common law or case law. Formal
criteria of law’s origin, law enforcement and legal effectiveness are all sufficient
for social norms to be considered law. Legal positivism does not base law on
divine commandments, reason, or human rights. As an historical matter,
positivism arose in opposition to classical natural law theory, according to which
there are necessary moral constraints on the content of law.
1 Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) 43 (1) Journal for
Juridical Sciences 1- 25.
2 Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) 43 (1) Journal for
Juridical Sciences page 9.
3 Tsele M “Rights and religion; bias and beliefs: Can a judge speak God?” (2018) 43 (1) Journal for
Juridical Sciences
