Constitutional Law and Philosophy of Law

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Moderne teoretiese benaderings van international verhoudinge
(University of the Free State, 1973-01) Barnard, Lukas Daniel; Wessels, F. J. H.
Open Access
Die magsfaktor in internasionale verhoudinge
(University of the Free State, 1975-06) Barnard, Lukas Daniel; Wessels, F. J. H.
Open Access
Legal evaluation of affirmative action in South Africa
(Faculty of Law, University of the Free State, 2001) Pretorius, J. L.
English: With its equality jurisprudence only in its infancy stage, affirmative action will provide a difficult challenge to the Constitutional Court. Employment equity and affirmative action, like other projects of social transformation translated into law, need to be balanced with individual and collective needs of security, continuity and national integration. The specific challenge facing the court will be to integrate its approach to affirmative action with its endorsement of the notion of substantive equality and the normative standards it has developed for the determination of unfair discrimination. It is submitted that the latter do provide at least a rudimentary focus, which is sensitive and open-ended enough to accommodate the complex array of competing interests at stake in affirmative action disputes. In this article, the implications of the court's equality approach for affirmative action are considered, with reference to some pertinent issues, such as the applicable standard for the constitutional review of affirmative action, and the fairness and proportionality of affirmative action measures (including the problem of the over- or underinclusiveness of affirmative action). The present state of South African case law on the subject is considered, with comparative references to approaches adopted in other jurisdictions.
Open Access
Die regsfilosofiese implikasies van communitas en die natuurregsleer van Thomas Aquinas (1225-1274)
(University of the Free State, 2003) Swartz, Nico Patrick; Raath, A. W. G.
Abstract not available
Open Access
Conscientious objection and legal abortion in South Africa: delineating the parameters
(Faculty of Law, University of the Free State, 2003) Ngwena, C.
English: The purpose of this article is to delineate the scope and limitations of the exercise of the right to conscientious objection in respect of participation in abortion procedures under theChoice on Termination of Pregnancy Act. The Act is silent about the right to conscientious objection. However, section 15 of the South African Constitution in particular, implicitly accommodates conscientious objection to abortion. It is submitted that whilst the Choice on Termination of Pregnancy Act fails to provide the principles for determining the limits of the right to conscientious objection, guidance can be derived from section 36 of the Constitution. It is submitted that section 36 supports the limitation of the right to conscientious objection where maternal life or health is in serious danger or there is a medical emergency. Furthermore, it is argued that in the particular circumstances of South Africa, section 36 is also capable of supporting the imposition of a duty to at least provide the pregnant woman with information about where she might be able to obtain an abortion. It is noted that determining the parties that are entitled to conscientious objection beyond health care professionals that are immediately involved with abortion procedures can raise difficult issues. However, section 36 of the Constitution is, once again, a useful tool for resolving any difficulties in this regard.
Open Access
Samuel Rutherford on law and covenant: the impact of theologico-political federalism on constitutional theory
(University of the Free State, 2003-11) De Freitas, Shaun. A.; Raath, A. W. G.
English: This thesis primarily concerns the constitutional theory postulated by the 17th-century reformed Scottish theologian and political theorist, Samuel Rutherford. In this regard the angle of approach is done against the setting of the political and constitutional concepts arising from theologico-political federalism formulated by the federalists – Heinrich Bullinger, Philippe DuPlessis-Mornay and Johannes Althusius. Included among these concepts are: the law – its content and status, the separation of powers principle, the office of magistracy, the civil and religious duties of the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and active resistance to tyranny. In addition, theologico-political federalism entails in essence the idea of the biblical covenant, which concerns the biblically confirmed bilateral, mutual and conditional relationship between God and the Christian Community, as well as the political covenant between government and the governed within such a community. It was especially the relevance of the Divine law (summed up in piety and civility) as condition of the covenant that was emphasised by the federalists, and which gave a unique meaning to the concept of sovereignty as branch of the primary and absolute holder of sovereignty, namely God. It was to be from this basis that the content of the separation of powers principle, the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and resistance to tyranny, were to be determined and given perspective. This thesis not only confirms that Rutherford and the mentioned federalists had much in common regarding political and constitutional content, but also and more specifically, that Rutherford’s view on the biblical covenant and the law as foundation of politics and constitutionality was similar to those of the federalists. It is also confirmed that theologico-political federalism rates among one of the most valuable and insightful formulations emanating from reformed constitutional thought in general. Theologico-political federalism, although not the only stream of thought to be applauded for its contribution to Western constitutional theory in the 16th and 17th centuries, contributed much to such theory. Amidst the development of secular constitutional theory during the period of the Reformation, the federalists provided a model of how the constitutional dispensation of the Christian Community should be structured, and as point of departure, political society’s status as a party to the covenant with God was postulated, this covenant relationship acting as the fundamental framework for political content and activity – albeit within the absolute grace and predestination of God. The personal relationship between God and the political community as not only an effective constitutional model, but also a biblically qualified and practical constitutional theory was proposed by the federalists. It will also be confirmed that not only did the federalists provide a well researched constitutional model to be applied to the ideal Christian Community, but also assisted in championing constitutional values such as liberty, equality, the rule of law, limited governance, and democracy. In conclusion, may it be said that it can be deduced from this thesis that Rutherford’s participation in the continuation and development of the legacy of theologico-political federalism was substantial, and consequently it is hoped that his already-respected contribution to reformed constitutional theory is duly enriched.
Open Access
Equality for people with disabilities in the workplace: an overview of the emergence of disability as a human rights issue
(Faculty of Law, University of the Free State, 2004) Ngwena, C.
English: In essence, the article explores the development of disability as a human rights issue with a particular focus on equality in the workplace. It draws from developments that have been taking place at the international plane as well as in other jurisdictions. Throughout, the article seeks to ultimately relate disability to the South African workplace. It is submitted that human rights jurisprudence has been slow in harnessing equality as a normative tool for overcoming prejudice and indifference in the workplace environment. However, in the last two decades or so, there has been a paradigm shift, with disability emerging as a human rights issue at international and domestic levels. The growing recognition of the concept of reasonable accommodation as a mechanism for realising equality for people with disabilities in the workplace, is one of the most promising signs of a new approach to disability.
Open Access
The impact of Scholasticism and Protestantism on Ulrich Huber's views on constitutionalism and tyranny
(Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's (1636-1694) contribution to public law was initiated with his lectures on the general principles of constitutional law at Franeker. The fruits of his work culminated in his De Jure Civitatis. The era in which Huber produced this work was generally characterized by the emergence of rationalism and enlightenment in Dutch jurisprudence. More specifically Huber's work reflects the influence of the transition from enlightened absolutism to democratic government based on the will of the subjects. His views on popular sovereignty culminated in Huber's theory of limited government and resistance to tyranny. A study of the Latin text of Huber's pioneering work reveals valuable perspectives on these trends in the transition of Dutch jurisprudence from scholasticism to enlightenment.
Open Access
Political Covenantalism, sovereignty and the obligatory nature of law: Ulrich Huber's discourse on state authority and democratic universalism
(Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's De Jure Civitatis, published in Latin, has never been translated into any other language, making this a relatively unknown source in constitutional law. In this work Huber responds to the state absolutism of Machiavelli and Hobbes. Although Huber objects strongly to Hobbes's enlightened absolutism, his own theory of the double social contract scheme harbours distinct elements of political universalism.The possibilities for political resistance by subjects in the state are very limited. Although Huber's theory of constitutionalism prepared the way for the enlightened individualism in the theories of Locke and Rousseau, his constitutional law theory shows a clear preponderance towards political absolutism.
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.
Open Access
Huber, natural law and the reformational basis of the iurisprudentia universalis
(Faculty of Law, University of the Free State, 2005-12) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's work, De Jure Civitatis, contains the first serious effort to apply the Reformational perspectives on natural law to the field of Public Law. Not only did he integrate the perspectives on natural law with his views on Public Law generally, but he used the idea of natural law as the basis for jurisprudence as a whole (iurisprudentia universalis). In his opposition to the natural law theories of Bodin, Hobbes and Pufendorf, Huber maintained the perspective that law and justice cannot be seen as the products of utility or be determined simply by their usefulness. To Huber the principles of good and bad, lawful and unlawful, just and unjust, are based on immutable principles superceding human manipulation. For these reasons, Huber emphasises the fact that natural law is not the product of man's reason, but is based on the eternal will of God. However, man is able, with his reason, to determine the will of God from its revelation in God's moral law. In effect, then, God's eternal law is the fundamental source of natural law. As such the validity of natural law principles are not subject to an agreement among men, or to the principles of civil law, but they precede the state and the authority of government. Not only do these precepts of natural law apply as normative provisions to all elements of Public Law, but also to the rights of man (among others to life and property) irrespective of the nature and composition of the state. Huber's response to Hobbes's natural law theory in particular, highlights the importance of establishing the principles of law and justice not susceptible to the manipulation of political authorities and government authority. As such Huber's theory of natural law was not only an important contribution in his own time, but he postulated an alternative which may serve as an essential corrective in legal systems where the formal notion of the state subject to law, does not penetrate to the level of informing the material idea of the law state in a fundamental sense.
Open Access
Publiekregtelike estoppel, billikheid en die ontwikkeling van die gemenereg: 'n vonnisbespreking van Eastern Cape Provincial Government v Contractprops 25 (Pty) Ltd en Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd: chronicle
(Faculty of Law, University of the Free State, 2005-12) Raath, A. W. G.
Abstract not available
Open Access
The reply of the Eritrean government to ACHPR's landmark ruling on Eritrea: a critical appraisal
(Faculty of Law, University of the Free State, 2006) Mekonnen, D. R.
English: This article assesses the official and most recent stance of the Eritrean government on the illegal detention of eleven prominent Eritrean political personalities who remain behind bars since September 2001. The objective is to evaluate the unlawful detention pursuant to relevant Eritrean laws, namely: the 1993 "Interim Constitution" of Eritrea; the transitional codes of Eritrea which include the Penal, Criminal Procedure, Civil and Civil Procedure Codes; and other laws that amended and supplemented some of the above acts. The article critically examines the grounds which have led to the detention of the victims and analyses the legality of such reasons according to operational Eritrean laws. The contribution will also assess the prolonged duration of detention (detention without trial) and the justifications of the government for such a prolonged detention. It is submitted that the grounds of detention and the justifications for the prolonged detention, as corroborated by the Eritrean government, are ill-founded and have no legal basis. The assessment is based on the latest official account given by the Eritrean government about the detention of the officials. This account was given in a letter sent to the African Commission on Human and People's Rights upon the Commission's landmark ruling against Eritrea in November 2003.
Open Access
'n Kritiese ondersoek na societas, natuurreg en menseregte in die post-Thomistiese regsleer van Antonio Rosmini (1797-1855)
(University of the Free State, 2007) Swartz, Nico Patrick; Raath, A. W. G.
English: Societas According to Rosmini, society is not a man-made entity or creation, but rather a theistic institution, since it originates from the will of God. Accordingly, human society is founded in the order of God’s Creation. The freedom of the form of human society is realised in a variety of differentiated social forms, namely civil societas, domestic societas and ecclesiastical societas. Rosmini states that social forms are not reducable to simply civil societas, but include human social togetherness. Neither can one social form derive authority from the next. Unlike Thomas Aquinas who models the principles subsidiarity on the principles of hierarchy, autonomy and intervention, Rosmini emphasises the independence of each social form and in doing so he achieves a well-rounded doctrine of human society and social forms. He is of the opinion that the various social forms are closely bound, which means that a human society cannot be discussed without taking domestic societas, ecclesiastical societas and civil societas into account. Each social form forms part of an independent freedom and fulfils a responsibility before God. Rosmini endorses the Thomistic subsidiary principle to the extent that civil societas merely lends assistance and support to, for instance, domestic societas, should the latter community be unable to preserve its interests. On this basis, civil societas may not interfere with the interests of the other two forms. According to Rosmini, every society has a moral substructure which serves as a basis for the rights and obligations necessary for the maintenance of natural law. Social justice is expressed in society by means of the principles of goodwill. Rosmini relates to classical viewpoints where societies are bound to the fundamental moral principles of the central commandment of love, since all human rights are based on fundamental duty. On these grounds, Rosmini presents a platform for cultural discourse and ethical involvement across ideological boundaries insomuch as he is of the opinion that society as a whole stands beneath the general revelation of God. Natural law In Rosmini’s explicit stance on natural law he maintains a primarily Thomistic opinion which originates from his perspective of Divine Providence. Natural law is a manifestation of practical rationality. For example, to come to the knowledge of human rights, human nature and reasoning must be used as guidelines. As such, Rosmini upholds a paradigmatic perspective of natural law where there is a close correlation between natural law and the maintenance of justice in human society. Natural law and justice culminate in the relationship between rights and duties. Rosmini holds that natural law and justice are built upon the maintenance of important moral duties. On this basis, moral values have significant constitutional implications which give expression to the universal principle of love. In this way, natural law forms the foundation of human rights. Human Rights Rosmini’s point of view regarding human rights rests principally on his natural jurisprudence. His focus on justice in human society supports his standpoint on human rights, the jurisprudence of which originates from the Scriptural principle of love towards God and one’s neighbour. On this basis, Rosmini’s stance regarding human rights is closely linked to his theocentric idea of man’s personal relationship with God. His human rights teachings embrace both individual and social rights, the latter being reflected in social, ecclesiastical and domestic societas. Rosmini holds that social justice can only be ensured by the balanced maintenance of all natural rights on both individual and social levels. He is of the opinion that the natural rights of individuals in social entities originate most deeply in the human cry to God. Accordingly, Rosmini’s human rights teachings can be illustrated by his points of view regarding human dignity.
Open Access
African philosophical values and constitutionalism: a feminist perspective on Ubuntu as a constitutional value
(University of the Free State, 2008) Keevy, Ilze; Raath, A. W. G.
English: Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. The Court acknowledged ubuntu as part of South Africa’s jurisprudence and fused Western and African jurisprudence into a new South African “rainbow” jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a “new racism” which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the “Dark Continent”. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africa’s crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the “cultural bomb”, which eroded African values. The publication of Temple’s Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the “sum total of African values”; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africa’s closed, strong communitarian societies unique and not universal, but ubuntu “moral philosophy” proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntu’s eroded traditional African values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor “the Constitution in general and the Bill of Rights in particular”.
Open Access
Transitional justice: framing a model for Eritrea
(University of the Free State, 2008-05) Mekonnen, Daniel Rezene; Pretorius, J. Loot
English: Since its independence in 1991, Eritrea has seen egregious violations of human rights and humanitarian law. This study examines the perpetration of international crimes in Eritrea between 24 May 1991 and 30 May 2008. A factual and legal analysis of the major incidents and events that took place during the above period of time reveals that crimes against humanity, war crimes and crimes of aggression have been perpetrated in Eritrea in an alarming manner affecting hundreds of thousands of people. In most cases, human rights violations have been perpetrated under a clear and premeditated government plan of persecution and repression of political dissent and certain religious convictions. Although some of the incidents discussed in this work appear to be sporadic events occurring only in a specified time and with a specific objective, most of the violations portray a clear, coherent, systematic and comprehensive government policy of repression. The widespread and systematic violation of human rights in Eritrea constitutes crimes against humanity as defined by the relevant provisions of international law. There are also violations perpetrated in the context of the 1996 Eritrea-Yemen border conflict, the 1998-2000 Eritrea-Ethiopia border conflict, as well as other incidents of internal and international armed conflicts. These cases portray categories of crimes perpetrated with political motive of a cross-country nature. It is concluded that a certain group of highranking government officials can be tentatively identified as the most responsible perpetrators and accordingly they bear individual criminal responsibility for serious violations of international law since 1991. To end the culture of impunity, this study proposes that international criminal justice, administered by the International Criminal Court, foreign municipal courts, or national or mixed tribunals, should be instituted. However, in the event of a negotiated and peaceful political transition, conditional amnesty administered by a democratically constituted truth and reconciliation commission is also regarded as an acceptable option.
Open Access
Humanity and the protection of the unborn : a jurisprudential rationale for the furtherance of the anthropological paradigm of international law
(University of the Free State, 2008-05) Myburgh, Georgia A.; De Freitas, Shaun A.
English: This thesis is primarily concerned with the legal status of the unborn in international law. It investigates the lack of jurisprudence concerning the legal status of the unborn in this area of law and contends that such a lacuna is unacceptable. The unacceptability of this lack of discourse is highlighted in light of the concept of rationality; and rationality is presented as the best alternative method to deal with the legal status of the unborn, based on various justifications showing that the current method of legal discourse is not only devoid of rationality but inadequate to deal with this problem. Rational procedural and substantive attempts are then promoted to advance the legal status of the unborn in international law. Here the thesis emphasises the importance of taking into account requirements of humanity, sensitivity to animals and fairness, and continues to investigate the irrationality of abortion jurisprudence by arguing that the sole use of human rights and more specifically, the right to life and women’s rights, as determining the legal status of the unborn is part of the problem. Rationality requires an inclusive and sensitive approach and therefore, the sole use of concepts such as human rights, to the exclusion of science, anthropology, humanity and international justice, amongst others, are argued to be irrational. Scientific and anthropological consideration is also very important, not only to present an inclusive approach, but because these disciplines present us with some of the few convincing facts that can be used to aid philosophers when dealing with a topic where assumption and argument, rather than facts, are ample. However, this thesis does not pretend that a final or absolute solution on the legal status of the unborn is possible as cultural and ethical relativism as well as ideological affiliations present a problem to obtaining a universal rational outcome on the legal status of the unborn. However, it is stated that the possibility of a universal rational outcome, which represents an improvement on the contemporary situation, does exist and therefore, it would be irrational if such possibility were not attempted on rational grounds by way of procedure and substance, taking into account requirements of humanity.
Open Access
Do "values" mean anything at all? Implications for law, education and society
(Faculty of Law, University of the Free State, 2008-06) Benson, Ian T.
English: The term "values" is ubiquitous in modern discourse. It is held by many to embody high and noble aspirations that can be shared meaningfully. Often preferred to other terms, such as "virtues", however, values can be seen as creating an illusion of moral meaning rather than conveying something substantive and worthy of pursuit. This paper reviews scholarship that examines the term "values," particularly in relation to law and education , and suggests that the term is one that obfuscates rather than furthers clarity of meaning and that does, in fact, tend in a subjective and individualistic direction contrary to the best interests of citizenship in a free and democratic society. The article argues that the concept of "values" itself, and programmes relating to such things as "values clarification" should not form the basis of education in and for a free and democratic society. An understanding of the nature and history of "virtues" as a tool for public education is argued for, and an extensive bibliography on "values" and "virtues" included.
Open Access
Prosecuting the main perpetrators of international crimes in Eritrea: possibilities under international law
(Faculty of Law, University of the Free State, 2008-12) Mekonnen, D. R.; Pretorius, J. L.
English: A growing international consensus has emerged in the last few decades on the need to prosecute egregious violations of international law. In this regard, the establishment of the International Criminal Court (ICC) is seen as a landmark development in the global protection of international human rights and humanitarian law standards. Since its independence in 1991, Eritrea has experienced heinous violations of international law. The violations amount to international core crimes, as defined by the ICC Statute and customary international law. These include crimes against humanity, war crimes and the crime of aggression. There are consistent reports, as well as documentary and testimonial evidence from reliable sources on this. Accordingly, a number of high-ranking government officials may be reasonably suspected of involvement in the perpetration of international crimes in Eritrea. However, Eritrea is not a state party to the ICC Statute and this means that many of the international crimes perpetrated in the country may not fall under the jurisdiction of the ICC. On the other hand, violations are continuing with impunity, as there are no effective domestic remedies to rectify the problem, giving rise to the need for immediate intervention by the international community. The article discusses the legal implications of the ICC Statute with regard to international crimes committed in Eritrea before and after the coming into effect of the Statute. Drawing on the latest developments of international criminal law, it explores possible options for the prosecution of the main perpetrators of international crimes pursuant to Security Council referral as stipulated under article 13(b) of the ICC Statute.
Open Access
The Constitutional Court and ubuntu's "inseparable trinity"
(Faculty of Law, University of the Free State, 2009-06) Keevy, I.
English: The purpose of this article is to deconstruct the Constitutional Court's definitions of ubuntu as humanness, group solidarity, umuntu ngumuntu ngabantu, personhood and a moral philosophy. It is submitted that the philosophy of ubuntu or ethnophilosophy represents a religious worldview as it is inseparable from African Religion and the African spirit world. It is argued that the advocating of ubuntu's shared beliefs and values by South African courts and the state is to the detriment of other religious philosophies as it violates section 15(1) of the Constitution and constitutes unfair discrimination.