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372 Chapter 16
situation where a gunman requires a person to obey him on pain of death.
In such a circumstance, if the individual obeys it is not out of any sense of
being obliged to do so but rather simply out of fear. Without justification for
a decision, a judgment would simply amount to coercion and be akin to the
gunman situation ‘writ large’. 15 It would lack a sense of why individuals
should seek to obey a judgment. Theory in adjudication (of some kind) is thus
crucial to the very legitimacy of the practice itself, a question that is not at
issue in the field of golf. This is largely because golf is a sport amongst willing
participants whereas law has a coercive quality.
Secondly, the ends of law require normative theoretical justification in a
way they do not in relation to golf. What outcomes should judges seek to
achieve when performing the task of adjudication? There could of course be
disputes as to the very ends they should seek to achieve, whether this be justice,
stability or something else. Even if we were to agree that they should aim to
achieve justice between the parties, the question will arise as to what the
content of this notion is: Does it involve some idea of fairness, or is it simply
about achieving the greatest happiness for the greatest number? 16 Judges
when adjudicating will thus need to have some idea of what they are seeking
to achieve and what justice, for instance, requires of them. That will
inevitably require some theory. This point outlines another sense in which
adjudication is fundamentally normative: Judges must have a sense of what
the practice they are involved in aims to achieve and this involves, at least
partially, deciding on questions of how the world ‘ought’ to be. 17 In South
Africa (and similar systems that place normative concepts at the foundation of
the constitutional order), given that section 39(2) of the Constitution obliges
courts and other judicial bodies, when interpreting any legislation and when
developing the common law and customary law, to ‘promote the spirit,
purport and objectives of the Bill of Rights’, it ought no longer to be
controversial that adjudication in all spheres of law requires a certain level of
ethical engagement. 18 Golf too requires some engagement with the ends of
the practice when rules are in dispute though this occurs in a much more
limited sphere and is not necessarily involved with ethical questions. Whilst
fairness is of course important within any game, its role is ultimately to
ensure that the practice of playing the game is not undermined. Fairness is
determined with reference to the point of playing a particular game such as
15
Hart (n 14 above) 18 - 19. We have applied the example in a different manner to that
which Hart originally intended.
16 J Bentham An introduction to the principles of morals and legislation (1781) famously argued
that law should aim at justice which is described by the utilitarian principle. J Rawls’s
Theory of justice (1973) argues that a concept of fairness is central to justice.
17 Some may claim that here we are assuming a natural law account of the relationship
between justice and morality. Yet, most positivists would accept that law – even though it is
conceptually distinct from morality and can be identified independently – should seek to
achieve moral ends. To this extent, having some conceptual understanding of the demands of
political morality is key. To the extent that judges have choices in adjudication (and Hart would
recognise that discretion at least exists in penumbral cases), they would also be required to
engage their normative understanding of what law should be.
18
This would be so even on a positivist account of the Constitution for the basic law itself
directs a judge to ethical reflection.