Hard Cases in Wicked Legal Systems: Pathologies of Legality

Hardcover | March 25, 2010

byDavid Dyzenhaus

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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 legalpositivists, 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 detailedstudy 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 thatpolicy.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 newedition, 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 aninvaluable guide to understanding the abstract debates of legal theory, and their importance in legal practice.

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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 legalpositivists, who insist on a clear conceptual distinct...

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...

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Format:HardcoverDimensions:352 pagesPublished:March 25, 2010Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199532214

ISBN - 13:9780199532216

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Table of Contents

1. Judicial Obligation and the Rule of Law2. Adjudication and Racial Segregation3. Adjudication and National Security4. The Common Law Revival and the War Against Law5. Cycles of Legality: The Rule of Law after 9/116. The Genealogy of Legal Positivism7. The Legitimacy of Legality

Editorial Reviews

"a clear jurisprudential model that ...is capable of promoting vigorous debate" --Dennis Davis, South African Law Journal