Hard Cases in Wicked Legal Systems

Pathologies of Legality

David Dyzenhaus (Professor of Law and Philosophy, University of Toronto)

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English

Oxford University Press
04 March 2010

Political science & theory; Law; Jurisprudence & philosophy of law; Constitutional & administrative law

The idea of a wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, continues to play an important part in philosophical debates about the nature of law and law's claim to moral authority. It seems to offer support for the argument of legal positivists, who insist on a clear conceptual distinction between legal requirements, deriving from social sources, and moral requirements.

Does the existence of wicked legal systems present an insurmountable obstacle to critics of positivism who reject the importance of that distinction?

The abstract debates of legal philosophers can seem far removed from the practical application of law in the business of deciding cases.

This book argues that theoretical disagreement matters profoundly to the practice of law, and analyses the abstract debates of legal philosophy through a detailed study of judicial interpretations in apartheid South Africa - a model 'wicked legal system'.

The case study shows that particular conceptions of law and of the rule of law determined the reasoning both of judges whose decisions supported official policy and of judges whose decisions resisted that policy.

The first edition of this book was published in 1991.

Since then South Africa has transformed, and the major debates in legal theory have shifted from analysing the concept of law itself to analysing the concept of legality and the value of the rule of law.

For this substantially revised new edition, the author addresses the transformation of South Africa since the end of Apartheid, and the shift in focus of legal philosophy.

He also examines the emergence of counter-terrorism security laws, and the arguments surrounding their conformity to the rule of law. The book offers an invaluable guide to understanding the abstract debates of legal theory, and their importance in legal practice.

By: David Dyzenhaus (Professor of Law and Philosophy University of Toronto)
Imprint: Oxford University Press
Country of Publication: United Kingdom
Edition: 2nd Revised edition
Dimensions: Height: 243mm, Width: 168mm, Spine: 25mm
Weight: 654g
ISBN: 9780199532216
ISBN 10: 0199532214
Pages: 336
Publication Date: 04 March 2010
Audience: College/higher education , Professional and scholarly , Professional & Vocational , A / AS level , Further / Higher Education
Format: Hardback
Publisher's Status: Active

1: Judicial Obligation and the Rule of Law 2: Adjudication and Racial Segregation 3: Adjudication and National Security 4: Entrenchment and Dissent 5: The Common Law Revival 6: The War against Law 7: Problems and Puzzles 8: The Genealogy of Legal Positivism 9: Rule by Law/Rule of Law 10: Towards a Culture of Justification

David Dyzenhaus is a Professor of Law and Philosophy at the University of Toronto, Associate Dean, Graduate Studies, of the Faculty of Law, and a Fellow of the Royal Society of Canada. Prior to joining the Faculty of Law in 1990, Professor Dyzenhaus served as Assistant Professor and Canada Research Fellow at the Faculty of Law, Queen's University from 1989-1991. He has taught in South Africa, England and Canada in Law, Philosophy and Sociology. He holds a doctorate from Oxford University and law and undergraduate degrees from the University of Witwatersrand, South Africa. In 2002, he was the Law Foundation Visiting Fellow in the Faculty of Law, University of Auckland. In 2005-06 he was Herbert Smith Visiting Professor in the Cambridge Law Faculty and a Senior Scholar of Pembroke College, Cambridge.

Reviews for Hard Cases in Wicked Legal Systems: Pathologies of Legality

`Review from previous edition As legal history, the book is written with passion and with care, and its importance is clear. The book also has great importance as a work of legal philosophy ' Roger Shiner, Ratio Juris, (1994) `a rich resource for its illuminating discussions of the styles of judicial reasoning that South African judges brought to the apartheid laws ' Leslie Green, American Political Science Review, 1994 `carries the debate about the relationship between law and morality into new territory in ways that are insightful and instructive, not only because of its case study of the South African legal system but also because it makes a significant connection with the tradition of political philosophy which other legal theorists have largely ignored. ' William Hughes, Canadian Journal of Law and Jurisprudence, 1992 `a clear jurisprudential model that ...is capable of promoting vigorous debate ' Dennis Davis, South African Law Journal