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Law's Potential*

Published online by Cambridge University Press:  18 July 2014

David Dyzenhaus
Faculty of Law and Department of Philosophy, University of Toronto


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Review Essays/Notes critiques
Copyright © Canadian Law and Society Association 1992

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1. As I write (June 1992), that same government is threatening the reintroduction of a state of emergency in order to combat mass action prompted by its attempt to force a constitutional dispensation that would de facto entrench a white veto power.

2. I follow Ellman's citation of the relevant sections.

3. Minister of Law and Order v. Hurley 1986 (3)SA 568 (A).

4. Hurley, supra, note 3 at 578.

5. Minister of Law and Order v. Dempsey 1988 (3) SA 19 (A).

6. Omar v. Minister of Law and Order 1987 (3) SA 859 (A).

7. Ibid.

8. State President v. United Democratic Front 1988 (4) SA 830 (A).

9. Nkwentsha v. Minister of Law and Order 1988 (3) SA 99 (A).

10. Schermbrucker v. Klindt NO 1965 (4) SA 606 (A).

11. Nkwentsha, supra, note 9 at 117.

12. As Ellman shows, under Corbett judges have been randomly assigned to deal with such cases.

13. This claim is at least true as far as the official face of white South Africa goes. It will have to be radically revised as allegations and evidence increase of widespread governmental corruption and, much more seriously, of official complicity in political assassinations and in a campaign of deathly terror aimed at black communities.

14. See, e.g, pp. 135–38. His only reference to L. Fuller is not a substantive one; see p. 232. For Fuller's most elaborate defence of his thesis that there is an inner morality to law, see Fuller, L., The Morality of Law, rev'ded. (New Haven, Conn.: Yale University Press, 1969)Google Scholar.

15. The formulation there, as I will show below, is highly ambiguous.

16. See Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1961)Google Scholar.

17. See the discussion in c. 2.

18. See Dyzenhaus, D., Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Oxford University Press, 1991), esp. c. 9 & 10Google Scholar, unavailable to Ellman at the time of writing Trouble. Ellman refers sympathetically at times to an earlier article where I provided an even more embryonic sketch of the argument. See Dyzenhaus, D., “The Disappearance of Law?” (1990) 107 South African Law Journal 227Google Scholar and Trouble at 31 n. 21, 51 n. 125, and, esp. 124 n. 48.

19. Referring to the work, unpublished at the time of writing, of M. Osiel, “Sources of Judicial Resistance to Oppressive Law: A Sociological Reappraisal of the Hart/Fuller Debate.”

20. He alludes once to this reason in talking, without elaboration, of the “boundaries of positivist judicial discretion,” p. 244.

21. See pp. 31–32 for Ellman's own doubts about this proposition.

22. Supra, note 8.

23. Mureinik, E., “Pursuing Principle: The Appellate Division and Review under the State of Emergency” (1989) 5 South African Journal of Human Rights 60 at 71CrossRefGoogle Scholar.

24. Ibid.

25. See Mureinik, E., “Fundamental Rights and Delegated Legislation” (1985) 1 South African Journal on Human Rights 111CrossRefGoogle Scholar and “Security and Integrity” (1987) Acta Juridica 197219Google Scholar; for my own similar argument, see Hard Cases in Wicked Legal Systems, supra, note 18, c. 10.

26. Ellman does not mention Dicey at all, but I see no other way of understanding his claim about the fundamental premiss of South African law.

27. Although some were. For some revealing comments of Rabie's in this regard, see Davis, D., “The Chief Justice and the total Onslaught” (1987) 3 South African Journal on Human Rights 229Google Scholar.

28. Of course, the question of what is explicit language is itself highly coloured by which of the premisses a judge adopts.

29. Mureinik, “Fundamental Rights and Delegated Legislation” and “Security and Integrity” supra, note 25; Dyzenhaus, Hard Cases in Wicked Legal Systems, supra, note 18.

30. By Van Heerden JA.

31. The claim that the content of law is a matter of contingent social fact can, like the claim that there is a morality of law, be rendered trivial. For example, L. Fuller did not think that law had in some sense that transcended history to have embedded in it the values that made up for him an inner morality of law. That law has a potential for vindicating individual rights is of course contingent on political struggle for such rights having in the past also been a struggle around the content of law. The interesting high positivist claim that the content of law is a matter of contingent social fact is then that the content of law has to be determined first and foremost as a matter of fact; where “as a matter of fact” means “without resort to moral argument.” See Raz, J., The Authority of Law (Oxford: Oxford University Press, 1983) at 3840Google Scholar.

32. J. Raz has done the most to provide such an argument; see, ibid. But his argument is ultimately circular since it depends on accepting a priori that there is no authority when one has to resort to moral argument to determine what authority requires. This point is not meant as a particular criticism of Raz since I suspect that the main rival to the positivism, R. Dworkin's account of law and adjudication, is also ultimately circular. If both are circular, and hence beg the question against each other of what law is, this does not mean that there is an end to debate. We can still look to actual practice, to stories like that of adjudication under apartheid, to see which account of the authority of law has the best results for legal practice.

33. Max Weber was a positivist who did seem to think there was nothing more to legitimacy than the mechanisms of legitimation. But that was because he was, although not altogether consistently, a relativist and a subjectivist about morality. High positivists like Hart and Raz are cognitivists about morality—they do think there is a right answer to at least many moral questions. Hence they can claim that law is never in and of itself legitimate. Interestingly, they seem to divide on the issue of whether judges must believe in the legitimacy of their law. Contrast Raz, The Authority of Law, supra, note 48 at 155 and Hart, H. L. A., Essays on Bentham (Oxford: Oxford University Press, 1982) at 264–65Google Scholar.