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The lens of positivism in post-constitutionalism South Africa

Any law student is formally exposed to various schools of thought and paradigms. These enable students to grow into jurists that can approach and apply different sources of law in South Africa in various ways. One of the legal paradigms available to any jurist is known as positivism. 

Positivism was properly construed by John Austin in the nineteenth century and is characterised by the fact that legal norms need not be morally justifiable or accepted by the population to be legally enforceable. These primary laws are already part of the current legal system and need only be applied due to their mere existence. The emphasis is that norms be applied positively irrespective of whether or not the laws reflect the morality of the community.

During the month of October 2015 South African university campuses became flooded with widespread, mass protests wherein which students pleaded to have university fees decreased and to have services on campuses insourced in order to rid themselves of the burden of external contractors. The protests were considered intense. These actions made an impact on university and political stakeholders. The international academic sphere also took note of and acted in solidarity with the South African protests.

During the said protests, controversial questions and debates on various planes ensued. The majority of opinions resonated with the students as the majority felt they were exercising their right to protest fairly – others felt the students went too far in that a small group decided to use violence, throw rocks and start fires in order to bring across their point. 

As a jurist, one cannot help but question the role of positive legal norms during the said protests. The question relates specifically to the remedies available to the campus authorities and the police at the time of protests. In principle, campuses have a right to obtain interdicts against protesting students. UCT, for one, did so after some extremist students blocked entrances to the campus which prevented some non-protesting students to lose valuable academic and lecture time. UCT were, however, greatly criticised and bashed for having obtained the interdict against the students on an urgent basis. 

Similarly, the police officers which were involved in protecting the assets of parliament and parliamentary members, the various campuses’ assets and the grounds of the Union Buildings, were judged for having retaliated with tear gas, shields and for having enforced basic order during the protests. The police officers were entitled to use these measures to control the large, angry crowds and yet the measures were placed under a magnifying glass and were reflected on as having been similar to crowd-control under the apartheid government. There can be no worse insult to any police force than being compared to that under the apartheid government.

In light of the above, a jurist should wonder if a post-constitutional South Africa still allows for the maxim known as jus dicare non jus dare, which means the law is to be applied as is and not as it ought to be, to be applied. One should postulate whether the lens of positivism may at all be used by a jurist practising in South Africa today. 

Although the primary laws of South Africa allow university authorities and members of our police force to repair the status quo which was disrupted by student protests, the secondary laws certainly taint and thereby limit the primary laws. During the protests the secondary laws came in the form of shaming the persons who attempted to apply the primary laws. By insulting the persons who applied the primary laws and doing so in an ultra-sensitive political landscape, these persons were left highly doubtful if and whether they should utilise their remedies.

The core benefit of positivism may be said to be legal certainty, where every member of a community can understand the norms of a legal system. They need to accept the norms, but they are certain that these exist and may be applied because they exist. According to positivism, there is no hurdle to the primary laws, such as their morality or their acceptance. Only if a norm is grossly contra bonos mores will it be declared unconstitutional and will its existence cease. 

Although South Africans had an awakening, including a realisation of the effects of bad legal norms, South Africans also have less legal certainty than ever. A value-laden constitution forms the pillar of our legal system, but it does not describe primary laws. A positivistic lens should not be discarded completely as it values not only the constitution but also the primary norms which a community requires for law & order.

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