Evaluate, by comparing at least 2 jurisprudential theories that address the state’s duties regarding ‘social justice’, which of these jurisprudential theories, according to you, best attains the stated aims to achieve social justice in the first paragraph of the Grootboom case as well as in the Preamble of the Constitution. on chapter 6 Bilchitz et al
The two jurisprudential theories that can be compared in this context are natural law theory and legal positivism.
Natural law theory asserts that there are universal principles of justice and morality that underpin the law, and that the state has a duty to uphold these principles in order to achieve social justice. In the Grootboom case and in the Preamble of the Constitution, the aim of achieving social justice is based on the recognition of fundamental human rights and dignity, which aligns with the principles of natural law theory.
Legal positivism, on the other hand, argues that the law is a social construct that is created by society and enforced by the state, and that the state's duty is to uphold and enforce the law as it currently exists. While legal positivism does not inherently prioritize social justice as a goal, it does provide a framework for the state to address social justice issues through legislative and policy measures.
In this context, natural law theory is likely to be more effective in achieving the stated aims of social justice in the Grootboom case and in the Preamble of the Constitution. This is because natural law theory emphasizes the importance of upholding fundamental human rights and dignity, which are central to the concept of social justice. By grounding the state's duties in universal principles of justice and morality, natural law theory provides a more robust foundation for addressing systemic injustices and inequalities in society.