Students are required to read the Van Niekerk case, Albertyn and Davis (2011) and Swart (2010) as well as selected pages from the TRC report volume 4. These articles and extracts will be uploaded to the student portal for ease of access. The assignment focuses on the role of lawyers and judges in transformation. In all of the prescribed readings, the tension between the various concepts of law is addressed. Students must address the topic of critique of the law as a contribution to the development of the law.
Swart (2010, p278) asserts the following: “Fuller essentially asked the same question Dugard asked about the influence of legal positivism on the attitudes of apartheid judges in Human Rights and the South African Legal Order.1 While Hart and Fuller were waging an intellectual battle in the pages of the Harvard Law Journal, Verwoerdian apartheid was gaining momentum. South African judges, lawyers and academics while faced daily with the dilemmas Hart and Fuller debated, were stuck in a different theoretical paradigm and very few offered resistance to the unjust legislation, let alone appealed to higher law.”
What are your thoughts on Radbruch’s view that “the judge’s ethos ought to be directed at justice at any price, even the price of his own life”? (Swart (2010, p.276) Consider then the summary of the submissions made to the TRC, in particular paragraph 18 in which the views put forward by the BLA, LHR, the LRC and Nadel. What role are these lawyer organizations playing in supporting democracy? Who is at the forefront? What sort of challenges are lawyer organizations raising? Do you agree with these challenges, or do you deem them to be “counter-revolutionary”? What is the role of the legal academic and lawyer in post-apartheid South Africa? We encourage you to also use your Jurisprudence readings, where applicable, to support your argument, being able to see and make connections between the two modules.
Answer to Above Question on Legal Ethics
An analysis of the viewpoint of Gustav Radbruch in relation to judge ethos indicates that the judge ethos should be guided by the pursuit of Justice, and even at the cost of their own life. This indicates that judges are expected to pursue justice and uphold it, and this precedence should be taken into consideration above all other considerations including personal safety. My thought in respect to this viewpoint by Gustav Radbruch is ….
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