le droit comme ordonnancement social january 10 th, 2011 damian marczuk david seni nardia tonge

Le droit comme ordonnancement social

January 10th, 2011

Damian Marczuk

David Seni

Nardia Tonge

Agenda

Law, Time and Change

Morality and Law

Law: Restrictor or Enabler?

Case Summaries

Class Discussion

Case SummariesBecause you have already read them…

• Re: Drummond Wren (1945)

• Re: Noble and Wolf (1948)

• Judges and Injustice

• Should Judges Resign? - A Reply to Professor Wacks

• Judging Judges: A Brief Rejoiner to Professor Dugard

Agenda


Morality and Law


Case Overview

Class Discussion

Law, within a society, constantly evolves and changes over time…

… however, this change cannot occur too rapidly or sharply

“Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.” Pg 2 Re: Drummond Wren

Evolves over time Evolution restricted

Legislation Restricted use of public policy

Contract law Role of precedent

Common law Judges’ role to interpret, not make, the law

International law


Law, Time and ChangeLaw can be used simultaneously as a tool to protect the elite and

maintain the status quo …

…and be used as a tool for reform and change

Status Quo Reform

Legislation (Parliament) Legislation (Parliament)

Interpretation Interpretation

Courts as instruments of government power

International law

Boycotting (actions external to the system)

Agenda


Morality and Law


Case Summaries

Class Discussion

Law and MoralityDugard Wacks

Judges can advance the cause of justice in a unjust system

When faced with an unjust legal order, Judges should resign on moral grounds

Judges have discretionary powers (positivist assumption)

A Judge has no real discretion; must weigh opposing principles to come up with “right” answer

Normative view of judge’s role

Judges ought to use overarching principles of the legal tradition (e.g. common law principles) to counter unjust laws

Descriptive view of judge’s role

In practice, judges rarely use overarching principles to counter unjust laws of the legal system

Law as a social construction

Judge in Noble & Wolf would probably agree with Dugard: It’s not up to lawyers to decide what is best for the public good, rather it is up to the legislation to do so.

Law is not detached from morality: we must allow judges to exercise moral decisions (such as resignation).

Judge in Drummond would probably agree with Wacks: practice of law is highly moralized; importance of universal principles.

Agenda


Morality and Law


Case Summaries

Class Discussion

Law: Restrictor or Enabler?Do the cases suggest that people can organize their society as they wish?

Re Drummond Wren Re Noble and Wolf

Restricts freedom to contract if contract is against public policy (Society organized democratically?)

People’s freedom to contract supersedes public policy (People organize society as they wish?)

Seems not to allow imposed segregation of groups within society – encourages the idea of equality

Allows ideas of racial segregation and of restricting certain property rights to certain groups of people

Enables people to sell land freely to whomever they want to, notwithstanding such covenants in question

Seems to allow people to impose onto others who they can sell their property to – but only if there is a time constraint. Maximum length?

Previous owner seems to have limited power as to future of property

Previous owner can place restrictions on subsequent alienation

Law: Restrictor or Enabler?Who is enabled and who is limited by law in South Africa?

Group Impact

Blacks, Colored

Not represented, oppressed by apartheid laws. But perhaps minimally protected by certain principles, although not widely used (Dugard).

Whites White elite control Government and judiciary, and are most represented. Benefit widely and are enabled to do most things they want to (Whites organize society?).

Government Broad powers, but perhaps it could be restricted at times if judges use tools of interpretation to render moral judgments (Dugard). Although in the long run, appeals and amendments prevent this (Wacks).

Judges Prohibited from rendering moral judgments (Wacks). Caught in between ideology of people and of Government or whites.

Is the situation the same today? What about elsewhere?

Law: Restrictor or Enabler?• Law in S.A. is imposed on blacks by whites, used as a tool• Legitimacy? Blacks revolted several times…• Fight by blacks from the bottom and by whites from the top

with judges in between• No real democracy, representatives not elected by majority• Dugard: Natural law: principles that transcend any legal

system. But not very present in S.A.• Principles of “community morality” or “institutional

history” are biased• Any attempt to have law emanating from majority would

fail because of appeals / legislature• Revert to violence: Law unable to organize society

effectively by itself?

Agenda


Morality and Law


Case Summaries

Class Discussion

Class Discussion

• De quelle manière les principes universelles de droit affectent le rôle des juges? Est-ce que le droit et la moralité sont plus étroitement liés?

• Quelles sont les méthodes les plus efficaces pour changer un systeme de droit injuste et oppressif (apartheid de l’Afrique du Sud)?

• Que pensez-vous de cette citation: ‘’judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.’’

le droit comme ordonnancement social january 10 th, 2011 damian marczuk david seni nardia tonge

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