2022
LEGAL PHILOSOPHY (LJU4801)
ASSIGNMENT 1 SOLUTIONS
SEMESTER 1 2022
, 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 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.
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
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
Science
page 9
1|Page
LEGAL PHILOSOPHY (LJU4801)
ASSIGNMENT 1 SOLUTIONS
SEMESTER 1 2022
, 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 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.
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
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
Science
page 9
1|Page
