Constitutional Law and Philosophy of Law
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Browsing Constitutional Law and Philosophy of Law by Author "De Freitas, S. A."
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Item Open Access A critical retrospection regarding the legality of abortion in South Africa(Faculty of Law, University of the Free State, 2005) De Freitas, S. A.English: Abortion touches at the heart of the commencement of life, and therefore has to be approached accordingly. In this article, the South African jurisprudential debate on the legality of abortion, including the judgment in Christian Lawyers Association of SA v Minister of Health and the Choice on Termination of Pregnancy Act, is critically investigated. In conclusion, a proposed point of departure is postulated, with the aim of shedding more light on foetal status. In this regard, it is argued that, as part of the primary enquiry, morality and science, with special emphasis on fertilization, will have to play a more integral role.Item Open Access International humanitarian law against the background of custom and humanity(University of the Free State, 2010-11) Nell, Albert; De Freitas, S. A.English: International humanitarian law (IHL) strives to improve and protect human dignity during the most tumultuous periods known to mankind. As such, every endeavour to strengthen and enhance the functioning of this branch of law must be pursued and supported. The ICRC Study on Customary International Humanitarian Law (CIHL) was precisely such an endeavour. This Study found that very many IHL rules have been subsumed by CIHL, thus applying irrespective of treaty ratification, and that the rules applicable in international armed conflicts were converging with those applicable in non-international armed conflicts. However, this Study and its attendant literature have refrained from returning to a theoretical reconsideration of the normative foundation of IHL and, by extension, CIHL. The present dissertation aims to fill this theoretical lacuna and, in the process, to re-establish natural law principles and, in particular, considerations of humanity, as the raison d'être of and motivating factor for IHL. Accordingly, the dissertation pursues the natural law principle of humanity through its practical and theoretical development, before investigating its possible application through the Martens clause, norms of ius cogens and obligations erga omnes. Since the objective is to elucidate the essential foundation of IHL to better comprehend its customary source, the interconnectedness between IHL, CIHL and natural law principles, like humanity, is emphasised. In the process, the dissertation also enters the debate regarding the necessary methodological approach for CIHL ascertainment and postulates a normative, transcendental approach in this regard. Subsequently, the ICRC Study on CIHL is evaluated through the natural law paradigm established in the dissertation, which seemingly has not yet occurred in international legal literature.Item Open Access The unborn and A, B, & C v Ireland: chronicles(Faculty of Law, University of the Free State, 2010-06) De Freitas, S. A.; Myburgh, G. A.A, B, and C v Ireland (ABC-case) arose from an application lodged on 15 July 2005 to the European Court of Human Rights, which was directly referred to the Grand Chambers (thus indicating the importance of the case) for a hearing which commenced on 9 December 2009. The complaints were briefly the following: the third applicant complained that the restriction on abortion, and the lack of clear legal guidelines regarding the circumstances in which a woman may have an abortion to save her life, infringed upon her right to life under Article 2 of the European Convention on Human Rights.