The wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, has played an important part in recent jurisprudential debate. It seems to be clear support for the argument of legal positivists, who insist on a distinction between law and morality, and to be an insurmountable obstacle to critics of positivism who reject that distinction.
This work evaluates this debate. Its basis is a detailed study of judicial interpretations of the apartheid laws of South Africa and a brief study of recent English judicial decisions, mainly on statutes and executive decisions dealing with matters of state security. The case study shows that particular conceptions of law and of the rule of law determined the reasoning both of judges whose decisions facilitated official policy and of judges whose decisions resisted that policy.
The surprising conclusion is that positivism does not produce healthy legal practice. It would be far better for judges to adopt the morally charged conception of law put forward by positivism's critics, most notably Ronald Dworkin. It is argued that this conclusion prompts a novel understanding both of the positivist tradition and of the resources in common legal systems available to positivism's critics.
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