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Introduction

"Every judgment I write is a lie. I will repeat that statement: every judgment I write is a lie. This was the opening sentence of a lecture that I gave to students at the University of Toronto some years back, and, as I said in the Introduction, it captured their attention. . . I explained to my bemused audience that as a new judge on the Constitutional Court I would always smile inwardly when first reading my judgments in print. The judgments told their story in such an orderly, clear, sequential narrative form. They would begin by stating the issue raised, and then set out the history of the litigation and elucidate the specific questions to be determined. Next they would outline the relevant legal principles involved, apply them to the facts and arrive at the appropriate conclusion. . . . What produced my amusement was the knowledge that my judgments had in fact emerged from an inchoate - even chaotic - mental firmament quite different from that suggested by their ultimate assured expression. Mixed in with the formal logic there had invariably been an enormous amount of random intuitive searching and a vast element of unruly, free-floating sensibility. . . I wanted the students to understand that legal writing was not simply or even primarily about connecting pure, rational legal propositions together to produce a forward-moving train of thought that arrived at a logically pre-destined outcome. Though internal rationality was necessary, it was only one part of the story." Discuss how the above quotation from South African Constitutional Court Justice Albie Sachs compares and contrasts with theories of adjudication you have studied. In this quotation from South African Constitutional Court Justice Albie Sachs, taken from the chapter 'Tock Tick: The Working of a Judicial Mind', in his book 'The Strange Alchemy of Life and Law'; he is merely describing what he has lived through as a judge preparing a judgment. ...read more.

Middle

One way in which it might be said the 'the rules run out', as Hart recognises, is as a consequence of the inherent ambiguity of language, rules have an 'open texture' and, are, in some cases, vague.18 If the legislators introduce a rule to deal with a particular set of circumstances, how is the judge to apply the rule to an entirely different type of situation? Hart's example is the rule, "No vehicles in the park", introduced to remove automobiles from the area, but then asking whether that rule should apply to motorcycles or roller skates or other objects which may or may not be 'vehicles'. This quality of language contrasts with systems such as, for example, mathematics and music, whose symbols have precise and universally recognised meanings.19 Hart maintains that, with all general rules, the meaning of any given word will be made up of a 'core of certainty', central cases where the application is clear, and a 'penumbra of doubt' where the application of the rule is uncertain. The word 'penumbra' is borrowed from the terminology which is used to describe the different densities of the shadows which occur during eclipses. However, in the present context its meaning is more accessibly conveyed by the vernacular phrase 'grey area', within which there will be substantial scope for uncertainty.20 From these premises, Hart concluded that judges, in 'hard cases' inevitably must use their discretion to make new law, to 'fill in the gaps', on occasions where 'the rules run out'. They will, of course, be guided by various sources, such as social policy considerations, but, in the end, the judge will base his decision on his own conception of fairness or justice.21 In reading Sachs' J. version as to how his judgments are devised, created, constructed and formalized, he does not in any instance make any direct reference to having the use of his own discretion in reaching these judgments. ...read more.

Conclusion

pp.102-103. 12 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) pp.102-103. 13 J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.48. 14 Brian Bix, Jurisprudence: Theory and Context (4th edn. Sweet & Maxwell, London 2006) p.40. 15 Arthur Chaskalson, 'From Wickedness to Equality: The Moral Transformation of South African Law' (2003) 1(4) I.J.C.L, 590, p.594. 16 Anders Axelson, 'The Discretion of the Certifier: A Drafting Tool Best Left in the Toolshed?' (2007) 23(4),Const. L.J, 253, p.255. 17 Ian Mc Leod, Legal Theory (Palgrave Macmillan Law Masters, 4th edn. Palgrave Macmillan, Hampshire 2007) p.86. 18 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.108. 19 Brian Bix, Jurisprudence: Theory and Context (4th edn. Sweet & Maxwell, London 2006) pp.44-45. 20 Ian Mc Leod, Legal Theory (Palgrave Macmillan Law Masters, 4th edn. Palgrave Macmillan, Hampshire 2007) p.87. 21 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.108. 22Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.108. 23 Ibid. p.141. 24 J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.88-89. 25 115 NY 506, 22 NE 118 (1889). 26 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.146. 27 J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.89-90. 28 Ibid. p.91. 29 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.145. 30 Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London 2007) p.116. 31 J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.93-94. 32 Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London 2007) p.111. 33 J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.101. 34 Ibid. p.102. 35 Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London 2007) p.115. 36 Ronald Dworkin, Law's Empire (Harvard University Press, Massachusetts 1986) p.1. ?? ?? ?? ?? 1 ...read more.

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