TABLE OF CONTENTS

QUESTION SEVEN 1
1.0 Introduction 2
2.0 An overview of Feminist Jurisprudence 2
3.0 Essence of Feminist Jurisprudence 4
4.0 Answer to Question (a) 4
5.0 Answer to Question (b) 8
6.0 Conclusion 13
QUESTION EIGHT 14
7.0 Introduction 15
8.0 Lon Fuller 15
9.0 HLA Hart 15
9.1 Hart’s Internal Point of View 15
9.2 Hart’s Notion of Discretion 17
10.0 The Fuller-Hart Debate 17
11.0 Conclusion 18
 QUESTION SEVEN

(a) Discuss whether the law systematically discriminates against women. Support your answer
with examples.

(b) Discuss FIVE contributions that you consider feminism has made to jurisprudence. Support
your answer with examples.

1
ANSWER

1.0 Introduction

A broad social and political movement aimed at achieving more equality for women is
known as feminism, which is a collection of ideals and principles. Women have been denied
rights and chances in numerous sectors all around the world due to the perception that they
belong to an inferior group. Feminism serves as the women's movement's guiding ideology and,
of course, both shapes and is shaped by it. Women strive for equality in many aspects of life and
employ a wide range of tactics to do so. Law is not the only domain of feminism. Nonetheless,
the law has played a significant role in the struggle for women's equality, both as a subject that
has to be changed and as a tool for change. Feminism has consequently attracted the attention of
the legal profession.

2.0 An overview of Feminist Jurisprudence

Feminist jurisprudence means their view of the legal system, and it is founded on the
political, economic, and social equality of the sexes. The word feminism is a legal, political,
economic, social, cultural and critical movement which developed from the women’s movement
more generally.1 Feminist jurisprudence includes the study of different strands of feminist theory
and the themes that have emerged and developed within feminist thoughts, such as the
application of theory to issues that interest members of class.2 It is frequently disputed by
feminist jurisprudence that the law is neutral and objective. Instead, it argues that patriarchal
systems and beliefs are profoundly ingrained in the law. It can therefore be utilized to maintain
gender inequality.3

1
Bhattarai, L H. (2020). An outline of Feminism Jurisprudence: Phases and Approaches from Nepalese Perspective.
Retrieved from,
An Outline of Feminism Jurisprudence: Phases and ...https://www.nepjol.info › article › download
2
Meera, R & Sidharth A J. (2020). Feminism and Feminist Jurisprudence in India. Retrieved from,
https://www.ijlmh.com/feminism-and-feminist-jurisprudence-in-india/
3
Jonica. (2022). Feminist Jurisprudence and Laws Evert Working Women in India Should Know. Retrieved from,
https://vakilsearch.com/blog/feminist-jurisprudence-and-laws/

2
 Although there are many types of feminists, nearly every person who is a feminist
believes in two basic propositions4:

1. In the sense that white men have shaped and still dominate our society, it is patriarchal
today. This patriarchal structure results in women having less power than men, not being
treated equally, not having as much influence over their life as men, and generally being
reduced to a lower status.
2. The subordination of women in our culture now is undesirable. Equal opportunity and
power for women should apply to all facets of their lives.

From the description above, it should be obvious that feminists can have a wide range of
opinions on other political issues. Men and women, Democrats and Republicans, capitalists and
socialists can all be feminists. While there is broad agreement among feminists over the general
ideas I have outlined, there are a variety of viewpoints regarding the corollary ideas. Feminists
argue on the specific laws, customs, etc. that constitute instances of unjustified patriarchy and the
best ways to achieve "equality" for women. For instance, many well-known feminists advocate
legislation restricting pornography, most notably Catharine MacKinnon; others vigorously
oppose such laws. Even the idea that formal "equality" should be the aim of feminism is
controversial.5

It is more than merely changing the legislation that is needed to achieve equality. The
laws must be significantly altered and put into effect. The law significantly increases women's
access to equal opportunity. The best place to start when changing how women are positioned in
society is through continuous political will, female leadership, and sound policymaking. Law
thus has the potential to empower women. It is important to guarantee their equal involvement in
the political, economic, and educational spheres.

4
Linda J. Lacey. (1990). Introducing Feminist Jurisprudence: An Analysis of Oklahoma’s Seduction Statute.
Retrieved from,
https://core.ac.uk/download/pdf/232683988.pdf
5
Ibid

3
3.0 Essence of Feminist Jurisprudence

It is a body of legal theory and commentary held by jurists who agree that the
advancement of society as a whole necessitates a vigorous, well-informed struggle against the
legal ideologies and practices associated with the patriarchal form of society (which connotes a
"political" structure that values men more than women).6

In a patriarchal society, men possess the majority of the power and predominate in
positions of moral authority, social privilege, and property control. According to feminist
philosophy, law itself was developed along male lines of thought and is a representation of the
prevailing masculine society. Hence, feminist legal theory has two goals in mind. The feminist
legal theory is dedicated to improving the position of women by reexamining the law and how it
treats gender. The goal of feminist legal theory is to illuminate how the legal system has aided in
the oppression of women.7

Analysis of how gender has historically been utilised to disadvantage women is also
required. By guiding women to understand their rights and how to assert them in the face of
discrimination, feminist jurisprudence can benefit them in the workplace. It can be applied to
oppose sexist practices and policies in organisations. Moreover, initiatives to advance gender
equality in the workplace might be aided by feminist jurisprudence. Consider the fact that men
are treated as the vast majority, the norm, while women, even if not excluded, are treated as the
exception in a variety of areas, such as health, vehicle, home insurance, the majority of sports,
military jobs, job subscriptions, and job expectations.8

4.0 Answer to Question (a)

Feminists believe that in areas of law where patriarchy is prevalent, the law is established
in relation to the experiences and viewpoints of men. Men, on the one hand, have moulded it,
defined it, interpreted it, and given it meaning in line with how they view the world and those
who are "other" than them. The law has therefore ignored or marginalised the voices and

6
Anonymous. (n.d.). ‘Feminism - Jurisprudence.’ [Powerpoint Presentation]. Sultan Sharif Ali Islamic University,
Brunei Darussalam. Lecture.
7
Ibid, 3
8
Ibid, 6

4
meanings of these "others" since the men of the law have framed it in their own image. The
following are a few instances of how male perspectives and experiences are assumed to be the
norm, proving discrimination against women.

I. The Issue of Pornography

Discrimination against women can be seen through the issue of pornography since it is
portrayed as being in opposition to society interests in free speech. This plainly demonstrates
how the law consistently discriminates against women in ways that violate their right to freedom
of expression. Censoring sexual expression actually would do more harm than good to women's
rights and safety. Limiting sexual speech, on the one hand, not only violates the first
amendment’s liberties but also simultaneously undermines women’s equality, status, dignity and
autonomy9. To simply put, laws prohibiting pornography are justified (among other reasons) in
order to prevent pornographers from expressing themselves in a way that silences women.
Women cannot be regarded to enjoy the same free speech rights as men because they are
imprisoned in a subordinate social position.10 Hence, the issue of pornography can be used to
illustrate how laws discriminate against women.

On the other hand, The pornographic industry, in which men create images of women for
other men, essentially objectifies and degrades women through its sexual imagery. Here,
pornography denotes women as objects, objects to be abused, coerced into having a sexual
orientation through dominance. Women are controlled, objectified as a result, losing their
subjectivity and ability to define reality for themselves. Only in light of the history of gender
inequality and exploitation can the impact of pornography be understood. In general, women
have been kept out of culture and consigned to the home realm, from which they are only
allowed to go if they agree to be bound by male-defined terms11. Here, the viewpoints of women

9
Strossen, N. (1995). Defending Pornography: Free Speech & the Fight for Women’s Rights. Retrieved from,
https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1071&context=fac_books
10
West, C. (2003). The Free Speech Argument Against Pornography. Canadian Journal of Philosophy, 33(3),
391-422. doi:10.1080/00455091.2003.10716549
11
Ritter, M A. (1998). The Penile Code: The Gendered Nature of the Language of Law, 2 N.Y. City L. Rev. 1
10.31641/clr020101

5
have been consistently ignored, misrepresented, and disregarded demonstrating the
discrimination towards women.

II. Law on Abortion

Patriarchy fails to recognise the economic contribution of women, which is made up of

caring for children and doing housework. A mother places themselves in a vulnerable position,
she is held accountable for the child’s abnormality12. She therefore aims to preserve her child as
well as allow her children to grow into a person that is acceptable to society.13 In response to a
seemingly hostile life, a mother adopts a metaphysical attitude, “governed by the priority of
keeping over acquiring, of conserving the fragile, of maintaining whatever is at hand and
necessary to the child’s life . . . It therefore recognizes humility and resilient cheerfulness as
virtues of its practice”.14 It underlines how the value mothers have as a group of women might be
underappreciated. Pure, emancipating parenting entails a “disciplined perseverance in the
unnecessarily beautiful artifacts of the culture (mothers have) created”15

If motherhood holds intrinsic value for the woman that she cannot acquire elsewhere,
then perhaps it deprives a woman of that value when she is compelled to have an abortion
because of constraints related to her finances, education, or career. Here, it must be demonstrated
that abortion is not infanticide but rather a woman acting in self-defense. Nonetheless, the right
of the feminist to make their own decisions is constrained by the law on abortion. Here, it is clear
that the law on abortion discriminates against women on a regular basis.

III. Law of Rape

Although the proper definition of rape is still up for debate, rape is generally understood
to entail sexual penetration of a person by force and/or without that person’s consent. In this
12
Edgington, C. (2002). "Reflections on Feminist Views of Abortion and Motherhood". CedarEthics Online. 40.
Retrieved from,
https://digitalcommons.cedarville.edu/cgi/viewcontent.cgi?article=1040&context=cedar_ethics_online
13
Ibid
14
Ruddick, Sara. (1980). Maternal Thinking. In Marilyn Pearsall (Eds.), Women and Values (pp. 110-120). Belmont
, CA : Wadsworth cited by Edginton, C.
15
Ibid

6
case, penetration is required by the law of rape in order to convict the perpetrator of rape rather
than only focusing on the woman's sexual abuse. This amply reveals the systematic
discrimination against women in the law. The case of DPP v. Morgan16 is a good example to
show the discrimination against women where three appellants were found guilty of rape
following a violent attack. A fellow RAF officer invited them back to his house and allowed
them to have sexual intercourse with his wife while he watched. According to the appellants, he
had told them that his wife would be consenting, although she would protest in order to enhance
her sexual arousal. Under the circumstances, the wife clearly said that she did not consent and
suffered physical injuries that necessitated hospitalisation. The judge who presided over the trial
had instructed the jury that the defendants' belief in consent had to be a reasonable one. They
were found guilty by the jury. In their appeal, they argued that there was no requirement that the
belief had to be held in a reasonable manner.

In regards to DPP v Morgan’s case, no one is to be considered guilty until the tribunal of
fact is convinced beyond a reasonable doubt that he or she acted intentionally or recklessly.
According to a decision by the House of Lords, if a man honestly believed that his victim was
giving him consent at the time of the rape, he is entitled to an acquittal. Here, it demonstrates
how Regardless of whether the man's honest belief that the woman he was having intercourse
with was consenting was supported by reasonable reasons, it was a defense to rape. Hence, it is
evident that the law places a greater emphasis on consent than on the woman's sexual violation,
which demonstrates the discrimination against women.

IV. Family Law

Another illustration of the discrimination in the law against women is the Family Law in
the United Kingdom. For instance, under divorce law, if a woman commits adultery, it is
sufficient for the husband to be eligible to the divorce decree; on the other hand, if a husband
commits adultery, the wife is not entitled to the divorce decree until she presents sufficient proof
of her husband's misconduct. Here, it was demonstrated that women were subjected to
discrimination in that they were denied the same legal protections under family law as men.

16
[1976] AC 182

7
 V. Discrimination of the Law is seen in Industrial Law Cases

In regards to Industrial Law, a female employee is not treated as per with a male
employee. This can be seen in the case of Webb v EMO AIR Cargo (UK) Ltd (No 2)17, where
Mrs Webb was hired by EMO Cargo to fill in for Mrs. Stewart, an employee who would soon be
going on maternity leave. However, it was planned that if Mrs. Webb passed a probationary
period, she would be given a job offer when the initial fixed duration of her work came to an end.
The applicant found out she was pregnant soon after her appointment, and her employers
terminated her. The Industrial Tribunal dismissed her argument that the dismissal was
discriminatory in violation of Section 1 of the Sex Discrimination Act of 1975, holding that the
principal cause for the dismissal was her expected inability to perform the duty of filling in for
an absent employee. Appeals to the Employment Appeal Tribunal and the Court of Appeal were
dismissed.

Here, it is made quite evident how discrimination against women has occurred, not only
in sexual assault or family law but also in the workplace. This is demonstrated by the
aforementioned case where Mrs. Webb’s employment was terminated solely due to her
pregnancy, which demonstrated her inability to carry out her job duties.

5.0 Answer to Question (b)

The basis of feminist legal theory, referred to as feminist jurisprudence, is the idea that
the legal system has played a significant role in the historical subordination of women. Two of
the main objectives of feminism in the legal sense is firstly, feminist jurisprudence aims to
reasonably shed light on how the legal system contributed to women’s subordination and
secondly, they aim to restructure the law and its treatment against gender bias in order to
improve the situation of women.

17
Case C-32/93 [1994] QB 71

8
 It is not an exaggeration to say that the law treats women unfairly and this problem has
been deeply rooted in society since the beginning of time. Feminist jurisprudence has been
making their movement from the late nineteenth to early twentieth century. With the aim to
elevate the women’s position from the patriarchal system, feminism has contributed a great
number of changes to jurisprudence. This discussion will focus on five contributions feminism
has made to jurisprudence to be specific in reconstructing the family law, redefinition of rape,
equal treatment of women, the reformation of property law and lastly, laws against pornography.

I. Reformation of Family Law

While discussing how the law treats women in relation to Family Law, it is important to
note that, despite many advancements and equality being offered in the Family Law that we
currently know, the law has not always been kind to women when it comes to providing equality
for example within marriage. Even though divorce was legalised prior to the Matrimonial Causes
Act of 1923 (MCA 1923), it was easier for the male to get a divorce than the women. This is
because, in order for a man to divorce his wife, he just needed to prove that she had committed
adultery, however, in order for a woman to divorce her husband for the same reason, there must
also be an aggravating offense such as incest, bigamy, sodomy and the like.18 The Family Law’s
double standard demonstrated how tougher the legislation was on women than it was on men. As
a result, feminist activists used the injustices in marriage as a rallying point to demand equality
from the Family Court, which is meant to protect women from their husbands in marriages.
Divorce rates rose after the First World War, which put pressure on the government to reform the
Family law, especially with the rise of the post-war feminist movement. Consequently, the MCA
1923 was introduced and now, women are able to divorce their husbands only on the grounds of
adultery, as opposed to the former requirement that adultery be coupled with aggravating
offences.19

18
Penny Russel, (2017), Matrimonial Causes Act 1923. Retrieved from,
https://womenslegallandmarks.com/2017/08/08/matrimonial-causes-act-1923/
19
UK Parliament, Changes in Divorce: the 20th Century. Retrieved from,
https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/relationships/overview/changesin
divorce/#:~:text=Divorce%20increases&text=A%20Private%20Member's%20Bill%20introduced,additional%20faul
ts%20against%20the%20husband.

9
 II. Redefinition of rape

The issue of rape is one of the key causes that feminists consistently advocate for.
Women have historically been treated unfairly since men were seen as the dominating role in
society and law due to the perception that women are inferior to men. The nineteenth-century
definition of rape was more restrictive than the concept in use today. Before, the definition of
rape was “(1) the carnal knowledge of a woman obtained by a male who was not her husband
against her will, and (2) any sexual activity with a child under the age of ten.”20 These definitions
do not apply to marital rape, enslaved women or other situations. Since women are seen as the
property of men, they must adhere to their husbands’ demands for sexual intercourse and as for
enslaved women, they were not allowed to testify against their masters in court or refuse to have
sex with them. Law are intended to protect each person from oppression by any group, but
traditionally, only men’s interests have been safeguarded, while women’s rights have been
devalued, particularly when it comes to rape. Even if punishment for rape was implemented,
such as castration or death penalty, the law had once again established a double standard because
rape was frequently perceived as not a crime during the early time and throughout English
history such as the rape victim must from from a privileged class in order to pursue legal justice.

Women, one by one, has seen through the helplessness of women in facing the male
dominated world and this led to the feminist movement to reshape the definition of rape through
demanding legal remedies such as statutory rape to prosecute coercive but nonviolent sexual
relations, renamed a range of non-consensual rape, and demanding to raise the common-law
threshold of ten years old as the legal age at which a young woman might give her consent to
sex.21 The definition of rape has altered significantly as a result of the feminist movement, and of
the result of the move is the introduction of the term “marital rape”, which refers to a sexual
intercourse between husband and wife’s consent. The case of DPP v Morgan illustrates the
discrimination of women and in light of this, feminists started calling for changes to the law
regarding marital rape.

20
The Clayman Institute for Gender Research, (2016), Changing Definitions of Rape and Citizenship. Retrieved
from,
https://gender.stanford.edu/news/changing-definitions-rape-and-citizenship
21
Estelle B. Freedman, (2012), Women’s Long Battle to Define Rape. Retrieved from,
https://www.washingtonpost.com/opinions/womens-long-battle-to-define-rape/2012/08/24/aa960280-ed34-11e1-a80
b-9f898562d010_story.html

10
 In 1992, in the case of R v R22, a man (referred to as “R”) disputed the conviction of
trying to rape his wife and used the marital rape exception as justification. The HoL decided
unanimously to override the common-law rule and maintain the husband’s conviction for rape.
Lord Esmile said, “Nowadays, it cannot seriously be maintained that by marriage, a wife submits
herself irrevocably to sexual intercourse in all circumstances.” the feminist did not lose their
protracted fight to redefine rape or for greater gender equality. As a result of their consistent
fight, marital rape is now an offence as stipulated in the Sexual Offences Act 2003.

III. The defence of provocation in Criminal Law

At common law, provocation is defined as an event where a person is justified in using

force against another to protect himself from harm if he honestly and reasonably believed that
doing so was the only way to stop the harm from happening to him.23 The English courts
established the idea of “reasonable man” in the nineteenth century and this was deemed as not
applicable to women due to their emotional nature, and this illustrates how the criminal law was
similarly biassed against women when it came to self-defence.

As a consequence of feminist jurisprudence, the courts had adopted a more sensible and
less discriminatory approach in the event of provocation. The Court in the case of R v
Ahluwalia24 considered “battered woman syndrome (BWS)” might create provocation. In this
case, the appellant had suffered years of violence and humiliation from her husband was
convicted of murder but she had appealed stating that she did not intend to kill her husband and
pleaded the defence of provocation on grounds of her treatment during their marriage.
Psychologist Lenore Walker defined BWS as the psychological state of women who had endured
trauma from an intimate partner on multiple occasions, as well as the coping mechanisms or
survival skills a victim would eventually learn to deal with abuse.25 Thus, self-defence and
provocation may be supported by BWS evidence, now known as intimate partner violence (IPV).

22
R v R [1992] 1 AC 599
23
Cornell Law Edu, (n.d), Provocation. Retrieved from,
https://www.law.cornell.edu/wex/provocation
24
[1992] 4 All ER 889
25
Amanda Kippert, (2021), What is Woman Battered Syndrome? Retrieved from,
https://www.domesticshelters.org/articles/legal/what-is-battered-woman-syndrome

11
This testimony of BWS is crucial for the jury to hear in court because it illustrates how an abused
woman might be justified in using fatal force to defend herself against their abusers.

IV. Reformation of Property Law

It is not an argument that women were not given the right to administer estate in certain
jurisdictions solely because they are married and even if they are not married, it was seemingly
hard for them to own or administer property back in the days. The dicta from the case of Reed v
Reed26 stated that the Idaho provision violated the Equal Protection Clause. Chief Justice Warren
E. Burger stated that “To give a mandatory preference to members of either sex over the other,
merely to accomplish the elimination of hearings on the merits…is to make the very kind of
arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth
Amendment.” In other words, the Court could not deny the rights of women to administer estate
because it is a violation of equal treatment against the women. The contribution feminists have
made to property law is advocating for equal rights in this particular field. Just because men are
seen as the head of the household, it should not diminish the women’s right to own or administer
estate.

V. Asserting human rights

Some cultural customs discriminate against women. Sociologists define culture as a set of
shared values and beliefs. The practice of Female Genital Mutilation (FGM) is one example of a
long-standing cultural custom. This is a common practice in Africa, Asia, Eastern Europe, and
Latin America.27 FGM is performed because of social pressure to fit in the society because some
men think the procedure is the only method to prove a woman’s virginity. Not only was this
practice brutal, but it also violated the rights of women to their own bodies and degraded women.
Although the efforts to end FGM are progressing slowly, several advancements have been made
in order to put an end to this cultural practice. For instance, the United Nations has deemed FGM
to be a violation of human rights, and as of 2023, 40 states already have anti-FGM laws in place
to safeguard the girls in their states.28 In the United States, performing FGM on a person under

26
[1971] 404 U.S. 71
27
Feminist majority Foundation, (n.d), Female Genital Mutilation (FGM). Retrieved from,
https://feminist.org/our-work/global-womens-rights/female-genital-mutilation-fgm/
28
The AHA Foundation, (n.d), FGM Legislation by State. Retrieved from,
https://www.theahafoundation.org/female-genital-mutilation-fgm-in-the-us/fgm-legislation-by-state/

12
the age of 18 is now illegal under Section 116 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996.29
6.0 Conclusion

To summarise, it is not an exaggeration to say that the traditional law was governed by
the patriarchal norms which highlight the discrimination against women over the globe. This can
be seen from some of the laws that were passed especially during the nineteenth century onwards
where the law can be seen to favour men more than women. The law is supposed to protect
everyone, regardless of their gender, from oppression of either party but if the law itself cannot
do so, it is guaranteed that there will always be injustice and gendered-nature law. Thus, the
life-long dedication by feminist jurisprudence in fighting for equality for women in the legal
system is not in vain as there are many contributions tha have made to Jurisprudence for instance
the reformation of family law as well as property law, the redefinition of rape, overcoming the
issue of provocation in Criminal Law and lastly, fighting for equal human rights for women.

29
ibid

13
 QUESTION EIGHT

Read the following extracts from the court record of the trial of Nelson Mandela held between
October and November 1962 in which he conducted his own defence. Mandela stood accused of
inciting persons to strike illegally and of leaving the country without a valid passport.

‘I do not believe, Your Lordship, that this court, in inflicting penalties on me for the
crimes for which I am convicted, should be moved by the belief that penalties deter men
from the course that they believe is right. History shows that penalties do not deter men
when their conscience is aroused, nor will they deter my people or the colleagues with
whom I have worked before. […]

I am prepared to pay the penalty even though I know how bitter and desperate is the
situation of an African in the prisons of this country. […]

Whatever sentence Your Lordship sees fit to impose upon me for the crime for which I
have been convicted before this court, may it rest assured that when my sentence has
been completed I will still be moved, as men are always moved, by their consciences; I
will still be moved by my dislike of the race discrimination against my people when I
come out from serving my sentence, to take up again, as best I can, the struggle for the
removal of those injustices until they are finally abolished once and for all.

I have done my duty to my people and to South Africa. I have no doubt that posterity will
pronounce that I was innocent and that the criminals that should have been brought
before this court are the members of the Verwoerd government.

At the end of the trial, Mandela was convicted and sentenced to three years’ imprisonment on the
charge of incitement and two years’ imprisonment for leaving the country without valid travel
documents.

If you were the judge in his trial, what would your decision have been and why?

14
ANSWER

7.0 Introduction

The above extract describes the trial of Nelson Mandela and his determination to conduct
his own defence in court. The extract shows that he fought for freedom and equality, and
expressed his belief that the African government was corrupt and committed injustices such as
racial discrimination. The extract fits well into the concept of law and morality. Therefore, before
we get into the main issue of this question, the concept of law and morality will be briefly
discussed in order to better understand the Mandela case.

To begin with, the law comes from an external source determined by rules and
regulations. Morality, on the other hand, originates from an internal source, i.e., it springs from a
person’s individual mind. Law supposedly treats all people the same way and does not change
from person to person. Morality, however, is more of a subjective concept. In the extract,
Mandela is shown to defend himself based on the belief it is his moral duty to fight against the
injustices of the government. In this essay, different views from different schools of thought such
as Lon Fuller and Hart will be discussed to come to a decision for Mandela’s case as the judge
for this trial.

8.0 Lon Fuller

9.0 HLA Hart

9.1 Hart’s Internal Point of View

To deduce the decision for the case of Mandela, a judge may examine the validity of the
law in the Verwoerd government by looking at Hart’s view of what is determined as a valid law.
According to Hart, a valid law exists when there is a union of primary and secondary rules and
the majority of the population follows the primary rules, while officials follow the secondary
rules and take the internal position on them. Hart determined the validity of laws by a formal

15
test. He believed that a law is valid if it meets the criteria set forth in the Rule of Recognition.30
Every legal system has a rule of recognition that serves as a test for the validity of rules in the
system and determines the superiority of rules (hierarchy of the court). The rule of recognition
can be determined by two factors: (1) internal point of view and (2) regularity of behaviour.
However, Hart’s internal view will be examined in order to derive the judgement for the Mandela
case.

Suppose that Hart’s views are applied in Mandela’s case, the Rule of Recognition and
other secondary rules should be acknowledged by the judge as binding. This acceptance is
crucial for the reason that the secondary rules are the means through which the legal system
regulates the performance of this task. A natural reading is that it is a moral perspective: officials
(in this case, a judge) believe that they have moral reasons, and thus a moral obligation, in order
to obey and enforce the law. Hart argues, however, that the internal point of view is not a moral
view: officials could acknowledge the internal view toward the law without believing that they
have moral obligations under the law.31

In analysing the case of Mandela, the judge applying Hart’s internal point of view, may
agree with the judgement set forth in the extract in which Mandela is sentenced to three years’
imprisonment for incitement and two years’ imprisonment for leaving the country without valid
travel documents. This reasoning is based on Hart’s internal point of view which is not a moral
position and thus, Mandela’s defence that the government was unjust was irrelevant on the
grounds that his defence was based on morality. Applying Hart’s view, the judge accepts that
they do not have a moral obligation under the law and therefore, they cannot evaluate decisions
based on what they believe on what is right and act accordingly. This also suggests that the judge
may not consider Mandela’s “bitter and desperate” defence that the government was unjust due
to “race discrimination,” as doing so would be a moral obligation.

30
Shapiro, S.J. (n.d.). ‘What is the Rule of Recognition (and Does it Exist?).’ Public Law and Legal Theory
Research Paper Series. Yale Law School. Retrieved from:
https://law.yale.edu/sites/default/files/documents/pdf/Faculty/Shapiro_Rule_of_Regulation.pdf
31
Holton, R. (n.d.). ‘Positivism and Internal Point of View.’ [PDF]. Retrieved from:
http://web.mit.edu/holton/www/pubs/Internal.pdf

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 9.2 Hart’s Notion of Discretion
Another way for the judge to determine the decision for the case of Mandela is by
reference to Hart’s notion of discretion. Discretion is the power of a judge, a public official or
private party to act according to the dictates of their own judgement and conscience within
general legal principles. TBC i may not include this… if after research if find it irrelevant i will
omit this

10.0 The Fuller-Hart Debate

The Hart-Fuller debate may also be referred to by the judge to determine the decision for
the Mandela trial. Hart and Fuller held opposing views on the relationship between law and
morality. From the perspective of Hart, the content of the law is defined by rules of recognition,
i.e., the social rules that determine which norms are considered as legal norms.32 These rules are
created and enforced by human authorities, such as courts and legislatures. He contends that
there is no necessary connection between a legal system and notions of justice and morality.
Therefore, morality should not be used to criticise legal systems but should be separate from
them. In Hart’s view, a legal system can operate effectively even if it is neither just nor moral.

Fuller, however, argued that … Syiqin’s part (fuller’s side of the debate)

The focus of the debate would be ‘The Grudge Informer Case.’ In this case, the wife, a
defendant, sought to get rid of her husband and denounced him to the Gestapo because he had
made insulting remarks about Hitler’s conduct of the war. The husband was tried and sentenced
to death, but the sentence was converted to service as a soldier on the Russian front. In 1949, the
wife was charged for causing the loss of her husband’s liberty. The case was brought to a court of
appeals, which concluded that “the sentencing judge should be acquitted, but that the wife is
guilty since she utilised… a Nazi ‘law’ which is contrary ‘to the sound conscience and sense of
justice of all decent human beings’ to bring about the death or imprisonment of her husband.”33

32
‘Hart-Fuller Debate.’ (Feb., 2023). UOLLB First Class Law Notes. Retrieved from:
https://uollb.com/blog/law/hart-fuller-debate#:~:text=Hart%20argued%20that%20morality%20should,to%20reflect
%20certain%20moral%20principles.
33
‘Legal Positivism and a Dynamic Picture of the Law.’ (n.d.). University of Toronto. Department of Philosophy.
[PDF]. Retrieved from:

17
To analyse… I volunteer to analyse but syqin can tambah if there’s missing points (Status: TBC
lol)
*refer back to extract - link Mandela’s mention of racial discrimination with the grudge informer
case
*link with fuller hart views on the validity of nazi laws

11.0 Conclusion

https://philosophy.utoronto.ca/wp-content/uploads/Legal-Positivism-and-a-Dynamic-Picture-of-the-Law.pdf

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 BIBLIOGRAPHY

ARTICLE JOURNAL
Shapiro, S.J. (n.d.). ‘What is the Rule of Recognition (and Does it Exist?).’ Public Law and
Legal Theory Research Paper Series. Yale Law School. Retrieved from:
https://law.yale.edu/sites/default/files/documents/pdf/Faculty/Shapiro_Rule_of_Regulatio
n.pdf

Holton, R. (n.d.). ‘Positivism and Internal Point of View.’ [PDF]. Retrieved from:
http://web.mit.edu/holton/www/pubs/Internal.pdf

‘Legal Positivism and a Dynamic Picture of the Law.’ (n.d.). University of Toronto. Department
of Philosophy. [PDF]. Retrieved from:
https://philosophy.utoronto.ca/wp-content/uploads/Legal-Positivism-and-a-Dynamic-Pict
ure-of-the-Law.pdf

WEBSITE
‘Hart-Fuller Debate.’ (Feb., 2023). UOLLB First Class Law Notes. Retrieved from:
https://uollb.com/blog/law/hart-fuller-debate#:~:text=Hart%20argued%20that%20moralit
y%20should,to%20reflect%20certain%20moral%20principles.

CASE LAW

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