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Vol 23 No 5 May/June 2018

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This book is now Out of Print.
A new edition has been published, the details can be seen here:
Hard Cases in Wicked Legal Systems: Pathologies of Legality 2nd ed isbn 9780199532216

Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy

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ISBN13: 9780198252924
ISBN: 0198252927
New Edition ISBN: 9780199532216
Published: May 1991
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: Out of print

The wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, has played an important part in recent jurisprudential debate. It seems to be clear support for the argument of legal positivists, who insist on a distinction between law and morality, and to be an insurmountable obstacle to critics of positivism who reject that distinction.

This work evaluates this debate. Its basis is a detailed study of judicial interpretations of the apartheid laws of South Africa and a brief study of recent English judicial decisions, mainly on statutes and executive decisions dealing with matters of state security. The case study shows that particular conceptions of law and of the rule of law determined the reasoning both of judges whose decisions facilitated official policy and of judges whose decisions resisted that policy.

The surprising conclusion is that positivism does not produce healthy legal practice. It would be far better for judges to adopt the morally charged conception of law put forward by positivism's critics, most notably Ronald Dworkin. It is argued that this conclusion prompts a novel understanding both of the positivist tradition and of the resources in common legal systems available to positivism's critics.

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South Africa, Other Jurisdictions
Judicial obligation and the rule of law
politics and history
adjudication and racial segregation
adjudication and national security
entrenchment and dissent
the common law revival
the war against law
the English experience
positivism and the plain fact approach
the legitimacy of law
appendices - legislation and unreasonableness, the plain fact approach 1970-1990.