LJU2.docx - Student number 47825162 Module Legal Ethics...

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Student number: 47825162 Module: Legal Ethics Module code: LJU4801 Unique number: 633657 Due date: 28-09-2020 Primary lecturer: Prof IJ Kroeze
Question 1 In the article titled “ Rainbow Jurisprudence ”, Cockrell assessed the ‘value-based nature of constitutional adjudication’ and ‘the intrusion of constitutional values into the adjudicative process and the impact it has on the values of the South African legal system’. It indicates the transition from a “formal vision of law” to a “substantive vision of law” in terms of which judges are required to pursue “substantive reasons” rather than “formal reasons” which characterised pre-constitutional adjudication, as contained in the judgements handed down in the course of 1995. 1 In the first year of the constitutional record, the court was tasked with creating a theory of constitutional review. In the case of S v Makwanyane 2 it was held that a value judgement must be formulated objectively. 3 Cockrell examines when and in what circumstances formal or substantive reasoning is applicable, how the constitutional court has failed to produce value judgments and the pros and cons attached to using these reasoning methods. The writer also evaluates which values are more important, how the court has equipped itself to perform its duties and finally how the legal positivist approach is still appropriate and applicable. 1 Cockrell A “ Rainbow jurisprudence ” 1996 South African Journal on Human Rights 4. 2 S v Makwanyane and Another 1995 (6) BCLR 665 (CC). 3 Cockrell 1996 South African Journal on Human Rights 28.
Question 2 In South Africa, the juxtaposition between values and rules are placed in contention, not only constraining judges but confusing judges’ approach when tasked to identify the proper role of the judiciary in a constitutional democracy as well as an appropriate manner in which to interpret legislation, specifically Chapter 3 of the Constitution . 4 The application of a judicial interpretation style depends on the application of formalistic rules or the incorporation of values. How judges decide cases

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