基本説明
Evaluates the current debate between legal positivists, who insist on a distinction between law and morality, and their critics who reject that distinction. The author argues from case studies of South African apartheid laws that positivism produces bad legal practice.
Full Description
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.
Contents
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.
