Table of Contents
Theme 2: Law, justice and morality ........................................................................ 2
Title: Natural law theories ................................................................................... 2
Title: Law, Order and Freedom: A historical introduction to legal philosophy ... 20
Title: The judicial process, positivism and civil liberty ....................................... 26
Title: End of history jurisprudence: Dworkin in South Africa ............................. 30
Theme 3: Legal reasoning and the politics of law ................................................ 35
Title: Transformative Constitutionalism and the common and customary law .. 35
Title: Critical Legal Studies in South Africa ....................................................... 42
Title: Law, Order and Freedom: A historical introduction to legal philosophy ... 48
Title: Un-doing things with words: the colonization of the public sphere by private
property discourse ................................................................................................ 49
Theme 4: Sex, gender and sexual orientation ...................................................... 57
Title: The sex of law.......................................................................................... 57
Title: Feminist Theories and concepts .............................................................. 63
Title: Gay and Lesbian Theory ......................................................................... 77
Theme 5: Race, decolonisation and African jurisprudence .................................. 86
Title: I write What I Like .................................................................................... 86
Title: Towards a Post-Apartheid Critical Race Jurisprudence: Divining our Racial
Themes................................................................................................................. 91
Title: Conquest and Constitutionalism: First Thoughts on an Alternative
Jurisprudence ..................................................................................................... 102
Title: Democratic constitutionalism in the time of the postcolony: beyond triumph
and betrayal ........................................................................................................ 112
Theme 6: Social class and distribution ............................................................... 123
Title: What is a just distribution of resources .................................................. 123
1
,Theme 2: Law, justice and morality
Natural law:
Author: Wessel B Le Roux
Title: Natural law theories
Introduction:
• Context given: Nelson Mandela and his lawyer
• Mandela
o Describes it as a conflict between his conscious and law
o Belief in morality and essential rightness but the law not recognizing
that
o Relies on the distinction between morality of all rational people and
legality of the positive law of a specific country
o Argues that what is procedurally valid law of a specific country
clashes with universal morality of all thinking and feeling people
o Law as it ought to be doesn't derive from legislative activity,
somehow naturally automatically inscribed in the conscious of all
thinking people
• Bram Discher (struggle lawyer)
o When they lose themselves become immoral a higher duty arises
o Compels us to not recognize such immoral laws
o Relies on his conscious again
o Fisher adds two important elements to his idea of a natural law
▪ A) Natural law essentially prescribes respect for basic human
rights
▪ B) Positive law which failed to meet the standard natural law
or immoral and can no longer be recognized as laws
o Implies test for validity of law cannot be procedural or formal history
of the law
▪ But would involve a normative judgment about the moral
substance of that law
• Natural law is higher than the duty to obey the positive law of the state
• Struggle lawyers appealed for a higher law which applies universally to all
people
o The higher law is naturally inscribed in the conscious of all rational
and feeling people and prescribes respect for elementary human
rights
• Context: Antigone
o Disobeyed King’s order not to bury brother; argued that man cannot
override the unwritten and unchanging laws of the Gods
o God's laws are eternal and their authority remains
2
, • Both contexts appeal to a higher law that cannot be overruled and has not
been created by humans
• Antigone said higher duty is owed to what justice demands in the
circumstances
o Cannot be established with reference to enacted laws but must be
objectively determined
o Reference must be given to duties that will maintain proper
relationships between gods and human beings
o No mention of human rights or in a conscious
o Justice is in external relationships and the cosmos
• Struggle lawyers derive higher duty from an inner conscious of human
beings and in particular respect for human rights
• Thus you can see a shift between the two contexts
o From a position where positive law is challenged based on the
objective duties
o To a position where positive law is challenged on the basis of
subjective or individual claims to human rights
▪ These are inscribed in the inner conscious of all human beings
• How did all this change?
o First suggestion = Bill of rights as a culmination of western natural
tradition
▪ Constitution as a triumph of modern natural thinking
▪ This perspective shows natural law and the idea of subjective
rights
▪ Comes from the age of rights
o Second suggestion = critical of the liberal rights discourse, resist age
of rights
▪ Modern age of rights = example of universalization of liberal
democracy
▪ Critical of doctrine of individual rights
▪ The right critics have been developed by thinkers working
within the natural law tradition
▪ Return to the classical natural law traditions as attempted to
disrupt the complacency with which liberalism prioritized
subjective rights over the objective good
o Both these thinkers agree that natural law should be told as the risen
crisis of age of rights
• Chapter regards the second suggestion (critical not celebratory)
o First deals with history of natural law thinking (A)
o Second deals with internal natural law critiques (B)
A) Antigone’s unwritten laws to struggle lawyers’ human rights:
Greco-Roman conceptions of natural law thinking:
3
, • (i) Greek mythology, philosophical cosmology and Sophist skepticism
o Antigone’s conception – lies with the law of God
o Sophists were first to use phrase “natural law”
▪ Came from nature and law that was different to the old Greek
usage
o Greek understanding:
▪ Nature (physis), regulated origin and decay of natural world
▪ Basic insight of first natural philosophers – presented was an
intelligible order regulated internally by a principle of justice
▪ More variety in views regarding physis
▪ Concept of law (nomos)
o Sophists:
▪ Disregarded the cosmological project and introduced new
sense of pragmatism (concerned with society and human
affairs)
▪ Term physis now quite different meaning than Greeks
▪ Shift in understanding of law (nomos) as well
▪ Universal and eternal laws accepted when attributed to Gods,
but lost its force with rational of cosmology
- Upheaval and wars – unwritten laws became sinister
▪ So Sophists stated that man is the measure of all things
▪ Begins spirit of individualism and removed objectivism of the
traditional understandings of physis and nomos
▪ Introduced a contrast between physis and nomos
o Sophist distinction between physis and nomos
▪ Laws were dismissed as artificial human creations and lacked
objective foundation in justice
▪ Nature was reduced to the free play of human’s passion and
instinct
▪ Most radical – claimed that nomos was unjustifiable and a curb
on natural operations of physis
o Callicles – credited for formulating the phrase ‘natural law’
▪ Said natural consists of this:
▪ “The strong man should live to the utmost of his natural
powers and gives free play to his natural desires. Might is
right. Existing human laws are unnatural because they
represent the attempt of the weak to curb the natural passions
of the stronger”
• (ii) Plato and Aristotle’s attempts at restoration
o Both aimed to restore justice to the city – sought to eliminate the
contrast which Sophists introduced between physis and nomos
▪ Argued that physis contained the objective foundation of right
(dikaion), justice and good
o Plato =
4
Theme 2: Law, justice and morality ........................................................................ 2
Title: Natural law theories ................................................................................... 2
Title: Law, Order and Freedom: A historical introduction to legal philosophy ... 20
Title: The judicial process, positivism and civil liberty ....................................... 26
Title: End of history jurisprudence: Dworkin in South Africa ............................. 30
Theme 3: Legal reasoning and the politics of law ................................................ 35
Title: Transformative Constitutionalism and the common and customary law .. 35
Title: Critical Legal Studies in South Africa ....................................................... 42
Title: Law, Order and Freedom: A historical introduction to legal philosophy ... 48
Title: Un-doing things with words: the colonization of the public sphere by private
property discourse ................................................................................................ 49
Theme 4: Sex, gender and sexual orientation ...................................................... 57
Title: The sex of law.......................................................................................... 57
Title: Feminist Theories and concepts .............................................................. 63
Title: Gay and Lesbian Theory ......................................................................... 77
Theme 5: Race, decolonisation and African jurisprudence .................................. 86
Title: I write What I Like .................................................................................... 86
Title: Towards a Post-Apartheid Critical Race Jurisprudence: Divining our Racial
Themes................................................................................................................. 91
Title: Conquest and Constitutionalism: First Thoughts on an Alternative
Jurisprudence ..................................................................................................... 102
Title: Democratic constitutionalism in the time of the postcolony: beyond triumph
and betrayal ........................................................................................................ 112
Theme 6: Social class and distribution ............................................................... 123
Title: What is a just distribution of resources .................................................. 123
1
,Theme 2: Law, justice and morality
Natural law:
Author: Wessel B Le Roux
Title: Natural law theories
Introduction:
• Context given: Nelson Mandela and his lawyer
• Mandela
o Describes it as a conflict between his conscious and law
o Belief in morality and essential rightness but the law not recognizing
that
o Relies on the distinction between morality of all rational people and
legality of the positive law of a specific country
o Argues that what is procedurally valid law of a specific country
clashes with universal morality of all thinking and feeling people
o Law as it ought to be doesn't derive from legislative activity,
somehow naturally automatically inscribed in the conscious of all
thinking people
• Bram Discher (struggle lawyer)
o When they lose themselves become immoral a higher duty arises
o Compels us to not recognize such immoral laws
o Relies on his conscious again
o Fisher adds two important elements to his idea of a natural law
▪ A) Natural law essentially prescribes respect for basic human
rights
▪ B) Positive law which failed to meet the standard natural law
or immoral and can no longer be recognized as laws
o Implies test for validity of law cannot be procedural or formal history
of the law
▪ But would involve a normative judgment about the moral
substance of that law
• Natural law is higher than the duty to obey the positive law of the state
• Struggle lawyers appealed for a higher law which applies universally to all
people
o The higher law is naturally inscribed in the conscious of all rational
and feeling people and prescribes respect for elementary human
rights
• Context: Antigone
o Disobeyed King’s order not to bury brother; argued that man cannot
override the unwritten and unchanging laws of the Gods
o God's laws are eternal and their authority remains
2
, • Both contexts appeal to a higher law that cannot be overruled and has not
been created by humans
• Antigone said higher duty is owed to what justice demands in the
circumstances
o Cannot be established with reference to enacted laws but must be
objectively determined
o Reference must be given to duties that will maintain proper
relationships between gods and human beings
o No mention of human rights or in a conscious
o Justice is in external relationships and the cosmos
• Struggle lawyers derive higher duty from an inner conscious of human
beings and in particular respect for human rights
• Thus you can see a shift between the two contexts
o From a position where positive law is challenged based on the
objective duties
o To a position where positive law is challenged on the basis of
subjective or individual claims to human rights
▪ These are inscribed in the inner conscious of all human beings
• How did all this change?
o First suggestion = Bill of rights as a culmination of western natural
tradition
▪ Constitution as a triumph of modern natural thinking
▪ This perspective shows natural law and the idea of subjective
rights
▪ Comes from the age of rights
o Second suggestion = critical of the liberal rights discourse, resist age
of rights
▪ Modern age of rights = example of universalization of liberal
democracy
▪ Critical of doctrine of individual rights
▪ The right critics have been developed by thinkers working
within the natural law tradition
▪ Return to the classical natural law traditions as attempted to
disrupt the complacency with which liberalism prioritized
subjective rights over the objective good
o Both these thinkers agree that natural law should be told as the risen
crisis of age of rights
• Chapter regards the second suggestion (critical not celebratory)
o First deals with history of natural law thinking (A)
o Second deals with internal natural law critiques (B)
A) Antigone’s unwritten laws to struggle lawyers’ human rights:
Greco-Roman conceptions of natural law thinking:
3
, • (i) Greek mythology, philosophical cosmology and Sophist skepticism
o Antigone’s conception – lies with the law of God
o Sophists were first to use phrase “natural law”
▪ Came from nature and law that was different to the old Greek
usage
o Greek understanding:
▪ Nature (physis), regulated origin and decay of natural world
▪ Basic insight of first natural philosophers – presented was an
intelligible order regulated internally by a principle of justice
▪ More variety in views regarding physis
▪ Concept of law (nomos)
o Sophists:
▪ Disregarded the cosmological project and introduced new
sense of pragmatism (concerned with society and human
affairs)
▪ Term physis now quite different meaning than Greeks
▪ Shift in understanding of law (nomos) as well
▪ Universal and eternal laws accepted when attributed to Gods,
but lost its force with rational of cosmology
- Upheaval and wars – unwritten laws became sinister
▪ So Sophists stated that man is the measure of all things
▪ Begins spirit of individualism and removed objectivism of the
traditional understandings of physis and nomos
▪ Introduced a contrast between physis and nomos
o Sophist distinction between physis and nomos
▪ Laws were dismissed as artificial human creations and lacked
objective foundation in justice
▪ Nature was reduced to the free play of human’s passion and
instinct
▪ Most radical – claimed that nomos was unjustifiable and a curb
on natural operations of physis
o Callicles – credited for formulating the phrase ‘natural law’
▪ Said natural consists of this:
▪ “The strong man should live to the utmost of his natural
powers and gives free play to his natural desires. Might is
right. Existing human laws are unnatural because they
represent the attempt of the weak to curb the natural passions
of the stronger”
• (ii) Plato and Aristotle’s attempts at restoration
o Both aimed to restore justice to the city – sought to eliminate the
contrast which Sophists introduced between physis and nomos
▪ Argued that physis contained the objective foundation of right
(dikaion), justice and good
o Plato =
4
