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

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 tobe an insurmountable obstacle to critics of positivism who reject that distinction. This book evaluates this debate in a detailed study of judicial interpretations of the apartheid laws of South Africa and 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 lawand 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 themorally 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 critics of positivism.