Theme 7
Note
• 3 Multiple Choice Questions on History
• 5 Multiple Choice Questions on Jurisprudence
Jurisprudential perspectives
• (1) Judicial deference
o The judge limits his discretion and rather chooses to leave the decision up
to executive and legislative branches of government.
o It’s linked to legal positivism.
o Also referred to as executive mindedness.
• (2) Judicial activism
o The judge exercises his discretion creatively to resolve a dispute and
arrives at an answer that often leads to societal change.
o It may lead to subjective attitudes influencing the decision.
LC Steyn (illustrates concept of judicial deference)
• He studied law and Stellenbosch University.
• He went into public service and had a brilliant career.
• He was appointed to the Bench in 1951, to the Appellate Division in 1955 and
was finally appointed as Chief Justice in 1959.
• The Group Areas Development Board v Hurley
o One of the Group Areas cases.
o Facts of the case
▪ A provincial decision allowing the Roman Catholic Bishop of Natal
(a white person) to hold land as a trustee in an Indian group area
was reversed.
, ▪ Steyn CJ applied the Act, even though he found that using the trust
device would not go against the policy of the Act.
o Steyn CJ’s approach
▪ He did nothing to block the executive’s power in implementing the
Group Areas Act.
▪ He believed that the judge’s role is purely mechanical, meaning that
their job is to apply the law.
Note
Judicial activist judges are not necessarily progressive, and judicial
deference does not always equal conservatism!
Natural law
• Law has a moral dimension.
• The validity of law is not based on the fact that it appears in statutes, but rather
on its content.
• The law should be based on certain values, which are universally valid and
rationally established.
• There are higher norms against which law can be measured.
• It is implied that these norms are found in the harmony and order of human
nature, and are valid without being imposed through legislation.
• Four essential features
o (1) A set of legal norms which are valid.
o (2) They are universally applied.
o (3) They can be rationally known.
o (4) It corresponds with the ideal law.
Note
• 3 Multiple Choice Questions on History
• 5 Multiple Choice Questions on Jurisprudence
Jurisprudential perspectives
• (1) Judicial deference
o The judge limits his discretion and rather chooses to leave the decision up
to executive and legislative branches of government.
o It’s linked to legal positivism.
o Also referred to as executive mindedness.
• (2) Judicial activism
o The judge exercises his discretion creatively to resolve a dispute and
arrives at an answer that often leads to societal change.
o It may lead to subjective attitudes influencing the decision.
LC Steyn (illustrates concept of judicial deference)
• He studied law and Stellenbosch University.
• He went into public service and had a brilliant career.
• He was appointed to the Bench in 1951, to the Appellate Division in 1955 and
was finally appointed as Chief Justice in 1959.
• The Group Areas Development Board v Hurley
o One of the Group Areas cases.
o Facts of the case
▪ A provincial decision allowing the Roman Catholic Bishop of Natal
(a white person) to hold land as a trustee in an Indian group area
was reversed.
, ▪ Steyn CJ applied the Act, even though he found that using the trust
device would not go against the policy of the Act.
o Steyn CJ’s approach
▪ He did nothing to block the executive’s power in implementing the
Group Areas Act.
▪ He believed that the judge’s role is purely mechanical, meaning that
their job is to apply the law.
Note
Judicial activist judges are not necessarily progressive, and judicial
deference does not always equal conservatism!
Natural law
• Law has a moral dimension.
• The validity of law is not based on the fact that it appears in statutes, but rather
on its content.
• The law should be based on certain values, which are universally valid and
rationally established.
• There are higher norms against which law can be measured.
• It is implied that these norms are found in the harmony and order of human
nature, and are valid without being imposed through legislation.
• Four essential features
o (1) A set of legal norms which are valid.
o (2) They are universally applied.
o (3) They can be rationally known.
o (4) It corresponds with the ideal law.
