Legal philosophy, value judgments, judges, philosophical approach, judgement supports the philosophy, Dworkin, Sachs, metaphysical approach, politics, society, Mapodile v Minister of Correctional Services
This case concerned the rights of gay prisoners and their treatment in prison. The applicant was a gay prisoner who brought an application to the court seeking the court's assistance in establishing the rights of gay and lesbian men and women to be confined in cells with people of similar sexual orientation. The prisoner in question had already appealed numerous times to the defendant requesting that he be moved to a single cell or one that housed men of similar sexual orientation and had even produced a doctor's letter in support of his request.
[...] Thirdly, and to substantiate the first two shared themes, the realists emphasised interpretation in that the meaning of words are different depending on each individual's perspective which is shaped by their political, social and economic beliefs. For example, in the Mapodile case, the judge specifically points out that the Correctional Services Act only acknowledged the rights of men, women, disabled persons and minors. The terms ‘Men' and ‘Women' can be seen in their religious context as meaning heterosexual persons and therefore excluding people of transgender and, in this specific context, gay persons. [...]
[...] The judge was at pains in the judgement to clearly point out that gay and lesbian people were a ‘permanent minority in society who have suffered patterns of disadvantages' because of their marginalisation in our history. The minority group of gays and lesbians were not afforded specific rights by the regulations to the Correctional services Act (‘the Act') which, correctly, captures other categories of person that attain the rights of prisoners in custody under conditions of human dignity. The Act therefore represents the principles of the community in acknowledging the need for and affording special rights to certain groups of people. [...]
[...] The judge observed that this metaphysical approach was prominent in and during the apartheid era which promoted the Christian religion and which was responsible for denying gay and lesbian people's freedom of expression. In rejecting the old history of South Africa, the apartheid era, the judge shows the premises for the change to our current dispensation of constitutional democracy. The judge also gives credence to the Basotho culture, an example of an African culture that had, for many years discouraged homophobia and afforded respect to gays and lesbians thereby reminding us of ‘ubuntu' and of acceptance and reconciliation. [...]
[...] As such, the judge in the Mapodile case clearly follows Dworkin's ‘law as integrity' principle which prefers principles over policy (pragmatism) and conventionalism. In this case the judge applied principles enshrined in the fundamental rights of the Constitution (and the principles she understands in it) over and above the strict meaning of words as they appear in the legislation, thereby constructively interpreting the Act. This is done to achieve the equal treatment of gay/lesbian prisoners (as another example of a marginalised group) by reading the good values of Roman Dutch law of justice and fairness into the legislative provisions together with the overarching rights to dignity and equality for everyone contained in the Constitution. [...]
[...] Instead, the judgement supports the philosophy of the late modern thinkers that the law required the development of these three above-mentioned aspects by way of incorporating values into law. The incorporation of values into the law requires human dialogue and processes of rational deliberation about shared values and principles in the community. It can therefore be seen that by making a value judgement and enjoining the law with the principles of morality in a rational manner, the judge in this case followed Dworkin's philosophy of ‘law as integrity'. [...]
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