Hard Cases in Wicked Legal Systems: Pathologies of Legality »

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's University from 1989-1991. He has taught in South Africa, England and Canada in Law, Philosophy and Sociology. He holds a doctorate from Oxford University and law and undergraduate degrees from the University of Witwatersrand, South Africa. In 2002, he was the Law Foundation Visiting Fellow in the Faculty of Law, University of Auckland. In 2005-06 he was Herbert Smith Visiting Professor in the Cambridge Law Faculty and a Senior Scholar of Pembroke College, Cambridge.

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 legal positivists, 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 analyzes the abstract debates of legal philosophy through a detailed study 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 that policy.

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 analyzing the concept of law itself to analyzing the concept of legality and the value of the rule of law. For this substantially revised new edition, 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 an invaluable guide to understanding the abstract debates of legal theory, and their importance in legal practice.

Table Of Cases

Reference Policy

South African Abbreviations

1 Judicial Obligation and the Rule of Law 1

2 Adjudication an d Racial Segregation 34

3 Adjudication and National Security 74

4 Entrenchment and Dissent 99

5 The Common Law Revival 120

6 The War against Law 146

7 Problems and Puzzles 165

8 The Genealogy of Legal Positivism 192

9 Rule by Law/Rule of Law 223

10 Towards a Culture of Justification 258

Bibliography 295

Index of Names 305

Index of Subjects 309