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Natural Law, Legal Positivism & Legal Realism - Coggle Diagram
Natural Law, Legal Positivism & Legal Realism
Natural law: a system of law founded on thorough analysis of human nature and values inherent to human behaviour that can be determined and implemented independently of positive law.
Greco-Roman conceptions of natural law tracking their gradual dissolution in Mediaeval scholasticism
Triumph of the modern rights paradigm (partly due to South Africa's struggle for universal human rights)
Sophist scepticism, Greek mythology, and philosophical cosmology
Legal positivism originated in the 19th and early 20th century in reaction to natural law theories. Positivists supported legal systems founded on ideals created by humans and institutions, dismissing the premise that the cosmos had an underlying ethical foundation. The significance of differentiating between law and morality posed an obstacle to the natural law approach.
Legal realism emerged in the early 20th century as a counter to legal positivism. Legal realists challenged positivist ideas of law as separate from society and politics. The writers argued that judicial choices were subjective and that law should be viewed as an accurate portrayal of society. The rigid and metaphysical characteristics of positivism were attacked by realism.
How does CLS build on legal realism?
Scholars of Critical Legal Studies contend that power dynamics and social structures impact the frameworks of law. They urge for a rigorous judicial investigation to uncover concealed prejudices and advance social fairness.
Dugard’s engagement with positivism and formalism
Dugard's realist-cum-natural law approach is a sophisticated complex viewpoint that attempts to transcend several of the constraints of rigid positivism or formalism. He recognises the ethical component of law and the impact of context on judicial choices by merging aspects of natural law with legal realism. He promotes a more adaptable and balanced method for the interpretation of law that acknowledges the inevitability of judges' beliefs while also following stipulated norms and standards. Dugard's approach seeks to balance the moral and social dimensions of jurisprudence with the requirement for an organised legal framework.
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Dugard emphasises the importance of the judge in his method. The person recognises that judges have an important role in determining how to interpret and apply principles of law, and that their own ideals and perspectives must influence how they make determinations.
Moral issues will need to be addressed in some manner by the judicial system. However, the court system requires norms for activities to be judged objectively and subjective judgements to be kept to a minimum. In this case, the individual opposes unlimited judicial power. He or she rather seeks to strike a compromise between moral issues and legal norms.
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The post-World War II period has been described as the "Age of Rights," the time in which the campaign for human rights evolved.
The new South Africa is the first nation that is a genuine manifestation of that era and the values that it embodies. Indeed, the spectacular revival of the South African state, characterised by democratic elections in 1994, is often regarded as the greatest historic event in the human rights struggle since its inception fifty years ago.
“liberal rights paradigm” (Le Roux) & criticism of its manifestation in post-apartheid constitutionalism
• Some South African legal writers have recently challenged the successful liberal rights paradigm. These commentators oppose the idea of post-apartheid constitutionalism as a remarkable realisation of the modern 'Age of Rights' or as an example of liberal democracy's universalization.
• These scholars have produced an important amount of work in which the founding principles of the liberal notion of individual rights, particularly the paradigmatic right to property, are extensively scrutinised and challenged.
• Those behind this critique are clearly concerned that post-apartheid South African constitutionalism is going to become ingrained in the classic liberal rights paradigm.
• To resist this risk, these intellectuals have drawn to a variety of Western philosophical rights criticisms, including the Critical Legal movement and the rebirth of republican constitutionalism.
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From this perspective, the path of natural law should be told as the development of the contemporary notion of subjective rights in the 16th century, its first political manifestation as natural rights in the 17th and 18th centuries, and its ultimate maturation in the form of universal human rights in the 20th century.
The story of natural law would be the story of the rise and final triumph of the ‘Age of Rights’ as confirmed by recent South African history.