Which of the following statements about Van der Walt’s article (“Tradition on Trial”
1995 SAHJR) are incorrect?
a
Van der Walt argues for the abolition of the civil law (Roman-Dutch law) tradition.
b.
Van der Walt worries that the continued use of the civil law methodology will frustrate the
realisation of the rights entrenched in a supreme Constitution
c.
Van der Walt points out that under the civil law, ownership is viewed as absolute and exclusive
d.
Van der Walt criticises the civil law tradition, which focuses on the meaning of abstract concepts
rather than concrete social problems and legal relationships
a. Van der Walt argues for the abolition of the civil law (Roman-Dutch law) tradition.
- Which of the following statements about the legal philosophy of HLA Hart are incorrect
a.
The separation between law and morals is a fundamental tenet of legal positivism, and laws
that are immoral are not for that reason invalid
b.
The idea that law is the command of a sovereign is inadequate, as it wrongly assumes that
individuals obey the law only because they fear punishment and ignores the fact that not all
legal rules are commands
c.
Judges never have to take decisions based on moral, political or policy considerations, as
there are always legal principles available that can guide their decision-making
d.
Law is a social institution that is made by humans, arises from social processes and serves
social aims, rather than being the embodiment of higher, natural law principles derived
from nature or the divine will.
e.
The laws of Nazi Germany generally qualified as valid laws, even if they were fundamentally
unjust and immoral
f.
One of the aims of the separation between law and morals is to protect individual liberty
against the imposition of the moral views of the majority of the population
c.
Judges never have to take decisions based on moral, political or policy considerations, as
there are always legal principles available that can guide their decision-making process
- Which of the following statements best capture the insights of legal realism
a.
The answers to legal questions can be determined through an analysis of the meaning of key
legal concepts
b.
Legal rules are often vague, ambiguous or contradictory. As a result, judges cannot simply
derive the answers to legal questions through a process of formal legal reasoning, but need
to engage in substantive legal reasoning, which engages with ethical and policy
considerations
c.
When arguing and deciding cases, lawyers and judges must be alert to the distributive
implications of different legal rules and interpretations
d.
Judges are inevitably influenced by factors like their personal background, ideological
convictions and psychological makeup
e.
B and D.
f.
B, C and D.
f.
B, C and D.
- Which of the following statements about John Dugard’s article (“The Judicial Process, Positivism
and Civil Liberty” 1971 SALJ 181-200) are correct
a.
To remedy the ills associated with the dominance of legal positivism in South Africa, judges
need to accept the legal realists’ insight that the background and personal preferences of
judges are likely to play a role in adjudicating conflicts between individual rights and the
State
b.
To remedy the ills associated with the dominance of legal positivism in South Africa, judges
need to engage in value-based legal reasoning by relying on common law principles that
recognise fundamental rights and liberties
c.
Since judges under apartheid were obliged to give effect to unjust laws, the only way in
which they could make a positive difference was by offering their resignation
d.
A and B.
d.
A and B.
- Which of the following statements are true?
a.
Antigone claimed that she was entitled to disobey King Creon’s order, as all human beings
have an inalienable human right to bury their relatives
b.
During his trial, Bram Fischer argued that individuals have a higher duty to refuse to
recognise laws that are immoral or violate basic human rights.
c.
Thomas Aquinas combined elements of the classical and Christian conceptions of natural
law, by holding that the rational natural order was an expression of God’s will
d.
According to John Locke, individuals cede their right to liberty to the state when they enter
into a social contract
e.
B and C.
f.
B and D
e.
B and C.
- Which of the following statements best capture the legal philosophy of Ronald Dworkin?
a.
Law as integrity means that judges should refuse to deviate from historical precedents
b.
Law as integrity means that judges should decide cases in accordance with the principle that
would place the legal system in the best possible light, even if that principle is foreign to the
community’s legal record.
c.
There are certain cases in which judges are not constrained by legal rules and principles, in
which they must make decisions based on moral and policy considerations that are external
to the law.
d.
Law as integrity means that judges should decide cases in view of two considerations,
namely coherence with the legal community’s historical legal record, and placing that record
in the best possible light.
e.
Legal principles are at the heart of adjudication. Those principles are based on natural law
and form part of any given legal system, regardless of whether they have been formally
incorporated into it.
d.
Law as integrity means that judges should decide cases in view of two considerations,
namely coherence with the legal community’s historical legal record, and placing that record
in the best possible light
- Which of the following statements about John Dugard’s article (“The Judicial Process, Positivism
and Civil Liberty” 1971 SALJ 181-200) are incorrect
a.
The separation between law and morality has enabled judges during apartheid to avoid
having to rely on unconscious assumptions, prejudices and biases derived from their
background and previous experience, and has therefore helped to place adjudication on an
objective basis.
b.
The most basic inarticulate premise of South African judges at the time of the writing of the
article was their loyalty to the apartheid status quo.
c.
In apartheid South Africa, the legal positivist separation between law and morality has led to
a rigid distinction between the legislative and judicial functions, and a refusal to resort to
value-based and policy-based legal reasoning.
d.
In apartheid South Africa, the legal-positivist thesis of law as a command of the sovereign
has manifested in the idea that judges, when interpreting legislation, should determine the
intention of the legislature, and that they therefore simply need to find the law, rather than
making it.
a.
The separation between law and morality has enabled judges during apartheid to avoid
having to rely on unconscious assumptions, prejudices and biases derived from their
background and previous experience, and has therefore helped to place adjudication on an
objective basis.
Is the following statement true or false? Critical race feminists and decolonial or
third-world feminists are often accused of gender essentialism.
False
Is the following statement true or false? Liberal feminists tend to accept the
hierarchical nature of the dualisms identified by Frances Olsen but reject their
sexualisation
True
Joel Modiri (“Conquest and Constitutionalism: First Thoughts on an Alternative
Jurisprudence” (2018) 34 SAJHR 300-325) and Firoz Cahalia (“Democratic
Constitutionalism in the Time of the Postcolony: Beyond Triumph and Betrayal”
(2018) 34 SAJHR 375-397) both reflect on the relation between constitutionalism and
colonialism. Which of the following statements are not a true reflection of the
differences between their respective approaches?
a
Modiri is critical of attempts to fetishize the Constitution, while Cachalia believes that we
will able to remedy all injustices if we follow the correct approach to the Constitution’s
interpretation
b.
Modiri argues that the Constitution is based on a Eurocentric understanding of law, power
and knowledge. Cachalia, by contrast, avers that, far from being a Western imposition, the
Constitution draws on understandings of rights, democracy and justice that were developed
during the anti-apartheid struggle
c.
Modiri states that the Constitution normalises economic inequality, spatial injustice,
epistemic violence and racism. Cachalia, on the other hand, argues that while the Constitution
does not and cannot resolve these issues once and for all, it provides a democratic framework
within which these injustices can be addressed through on-going democratic contestation and
dialogue
d.
Modiri believes that the Constitution has certain hidden elements, which allow certain
injustices to go undetected, whereas Cachalia is of the view that the Constitution’s meaning is
completely transparent.
e.
A and C above
f.
A and D above
f.
A and D above
Which of the following statements are incorrect?
a.
According to Steve Biko (I Write What I Like (1987)), non-racialism is an important
mechanism through which black people can overcome the psychological scars of
colonialism and apartheid
b.
Madlingozi draws on the philosophies of Africanism and Black Consciousness to argue
for a fundamental break with the racial injustices of the past
c.
An important difference between the non-racial tradition of the African National
Congress and the philosophy of Black Consciousness is that, while the former highlights
the institutional character of racism, the latter in addition also emphasises racism’s
psychological effects
d.
Madlingozi states that post-apartheid constitutionalism has not succeeded in making a
real break with the racial injustices of South Africa’s past. It has assimilated some black
elites into a white world, without changing the underlying structures of the apartheid
racial order
e.
According to Tshepo Madlingozi (“Social Justice in a Time of Neo-Apartheid
Constitutionalism: Critiquing the Anti-Black Economy of Recognition, Incorporation and
Distribution” (2017) 28 Stell LR 123-147), the term “post-apartheid” relegates black people
to the status of colonial subjects, who stand outside the linear time of the constitutional
transition
a.
According to Steve Biko (I Write What I Like (1987)), non-racialism is an important
mechanism through which black people can overcome the psychological scars of
colonialism and apartheid
Is the following statement true or false? Radical feminists are above all concerned
with gender domination in the public sphere.
False
Is the following statement true or false? Constructionist approaches to gender
identity and sexual orientation embrace a form of identity politics and adopt
approaches that are aimed at the assimilation of LGBTQI+ people into mainstream
society.
False
Which of the following statements are incorrect? Critical Race Theory (CRT) differs
from traditional liberal legal theory to the extent that CRT
a.
Calls for expressly race-conscious measures, without treating race as a biological or
genetic fact or a fixed characteristic
b.
Views law as an important instrument for reproducing and hiding white economic, social
and cultural power
c.
Focuses on the intention of racists, rather than the impact of racism on those subject to it
d.
Disrupts and questions assumptions about race that are widely viewed as neutral and
self-evident, and that hide white power and privilege
e.
Views racism not simply as the outcome of individual prejudice, but as something
deeply embedded within societal structures
c.
Focuses on the intention of racists, rather than the impact of racism on those subject to it
Which of the following statements are incorrect?
a.
Liberal feminists show a particular interest in the domination and power exercised over
women within the private sphere
b.
Radical feminists emphasise that a woman’s reproductive choices are private issues, and
that the state should not be allowed to interfere with those choices
c.
Louise du Toit (“A Phenomenology of Rape: Forging a New Vocabulary for Action” in
Gouws (ed) (Un)thinking Citizenship (2005) 253-274) argues that rape has a profound
impact on women’s capacity to participate on an equal basis with men in the public
sphere
d.
A and B above
e.
B and C above
d.
A and B above
Which of the following descriptions of strands of Critical Legal Studies (CLS) scholarship are incorrect?
a.
Reification refers to the processes by means of which the spontaneity and contingency of social relations are excluded from view, as legal concepts acquire a “thing-like” character.
b. CLS’s indeterminacy thesis means that the law contains contradictory rules and principles, which can be relied on to reach different outcomes to particular cases.
c. The indeterminacy of law is linked to the contradiction between our need for connection and community with others, and the ideal of individual autonomy.
d. Law tends to legitimate inequality and exclusion by making the status quo appear inevitable, rather than the contingent result of past decisions and ideological forces. It thus induces a false consciousness in both the ruling and ruled classes, by making them believe that things cannot be different.
e. CLS advocates a social-scientific approach, which will make law more neutral and objective.
e. CLS advocates a social-scientific approach, which will make law more neutral and objective.
