Masters Degrees (Constitutional Law and Philosophy of Law)
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Item Open Access Gender trouble in the church: promoting associational autonomy through ontological difference(University of the Free State, 2023) Vorster, Janko; de Freitas, S.This dissertation investigates the complex interplay between a pluralistic, liberal, and democratic state's duty to maintain diversity and protect the identities of individuals and groups with irreconcilable worldviews, focusing on the intersection of transgender identity and religious associations. The study grapples with the challenges of defining key concepts in the discourse of religious rights and diversity within a liberal democracy, avoiding simplistic definitions. The examination reveals the limitations of the prevailing discourse, which often assumes a secular neutrality that overlooks religion's role in shaping communal identity. It also explores the nuances of transgender rights, recognizing the importance of gender identity while respecting the traditional perspectives within religious associations. International legal developments highlight the tension between advocating transgender rights and upholding the principles of liberal democracy, revealing potential biases within the Yogyakarta Principles. The study underscores that claims based on transgender identity are ontological rather than empirical scientific facts. In the context of religious employment exemptions, the doctrinal core approach is critiqued in favour of the organic or permeated ethos approach, which respects the communal perspective and substantive autonomy of religious associations. Hypothetical scenarios further emphasise the doctrinal core approach's inadequacy in addressing issues related to religious exemptions and discrimination involving transgender individuals. Overall, the dissertation calls for an inclusive and nuanced approach that upholds the ideals of freedom, democracy, and diversity, while emphasising the need to safeguard the rights and identities of both transgender individuals and religious groups within a pluralistic society.Item Open Access Analysing the three-fold relationship between corruption, socio-economic rights and social justice in South Africa(University of the Free State, 2023) Morisse, Taylor Riley; De Man, AnnelieThis study analyses the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. This analysis consists of a review of three concepts and the relationship between these concepts in a South African context. Referred to as the three core concepts, the research problem that this study addresses and the research questions that emanate from it revolve categorically around (a) corruption, specifically governmental corruption; (b) human rights, specifically socio-economic rights; and (c) social justice. The aim of this study is two-fold. First, this study aims to combine academic comprehension of these core concepts. This study's second and overriding aim is to establish how these concepts relate, this second aim relates directly to the objective of this study which is to analyse the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. To establish this three-fold relationship between these concepts, each concept is investigated in terms of its attributed meanings, suggested consequences, assigned obligations, and debated achievement views. This investigation is done by analysing ample differing academic views. As it relates to the first core element of this study, corruption within government in South Africa is probed with the objective possibly to show its extent and gravity as its existence is well documented. The consequences of corruption within government are elucidated due to their potential contribution to understanding this element's role within this three-fold relationship. A commonly suggested consequence of corruption within government is that it adversely affects the fulfilment of human rights. To understand whether anything is undermining human rights fulfilment in South Africa, an assessment of the respect, protection, promotion, and fulfilment of human rights is applicable. Regarding the evaluation of human rights, the scope of this study is limited to the assessment of two socio-economic rights recognised in the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢, 1996 (𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯). Note below the applicable sections of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 that guarantee these rights and the limitations of this study. Sections 27(1)(a)-(c) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantee the following socio-economic rights: (a) everyone has the right to access healthcare (including reproductive healthcare), (b) everyone has the right to access to sufficient food and water, and (c) everyone has the right to access to social security. This study is limited to assessing the right to access healthcare as contained in Section 27(1)(a). This assessment includes the evaluation of the availability of pre-exposed HIV/AIDS (Human Immunodeficiency Virus Infection and Acquired Immune Deficiency Syndrome) medications for mother-to-child transmission, including nevirapine, but excludes the evaluation of reproductive healthcare. The space limitation of this study does not allow for this subset of rights to be addressed. Section 29 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantees that everyone has the right: (a) to basic education, including adult basic education and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. This study is limited to assessing the right to a basic education as contained in Section 29(a). This assessment excludes the evaluation of adult basic education due to the space limitation of this study. Therefore, the assessment of corruption within government in national departments in South Africa focuses on the Department of Health and the Department of Education as these departments are arguably the national departments responsible for enabling the realisation of the rights contained in Sections 27(1)(a) and 29(a) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. Considering modernity and the aim of providing an updated viewpoint, it must be acknowledged that governments have ever changing variables, when assessing a government, ongoing changes and challenges must be considered. The inclusion of current events does this. Befittingly, corruption in state-owned enterprises as it relates to the investigation into state capture in South Africa carried out by the 𝘑𝘶𝘥𝘪𝘤𝘪𝘢𝘭 𝘊𝘰𝘮𝘮𝘪𝘴𝘴𝘪𝘰𝘯 𝘰𝘧 𝘐𝘯𝘲𝘶𝘪𝘳𝘺 𝘪𝘯𝘵𝘰 𝘈𝘭𝘭𝘦𝘨𝘢𝘵𝘪𝘰𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 𝘊𝘢𝘱𝘵𝘶𝘳𝘦, 𝘊𝘰𝘳𝘳𝘶𝘱𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘍𝘳𝘢𝘶𝘥 𝘪𝘯 𝘵𝘩𝘦 𝘗𝘶𝘣𝘭𝘪𝘤 𝘚𝘦𝘤𝘵𝘰𝘳, 𝘪𝘯𝘤𝘭𝘶𝘥𝘪𝘯𝘨 𝘖𝘳𝘨𝘢𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 (the Zondo Commission) is included because it is the most recent investigation into corruption within government in South Africa. The findings of the Zondo Commission are included to demonstrate that it is not only corruption in national departments that has a potential plummeting effect on government funding in South Africa. Arguably, it is also corruption in state-owned enterprises that erodes the availability of government resources.¹ Although there are other variables that impact the availability of government resources this study is limited to the assessment of the above mentioned. Given the last core element of this study, the conceptual idea of social justice and what is believed to be necessary to achieve social justice is analysed to understand whether it is possible to achieve social justice in South Africa if socio-economic rights are not respected, protected, promoted, and fulfilled for everyone. An idea of social justice is to see all people be equal under the law and have equal opportunities to develop their potential.² Social justice includes the fair distribution of rights, resources, and opportunities.³ The achievement of social justice within a society is necessary because its potential to enable and promote human rights fulfilment including the fulfilment of socio-economic rights, redress injustices, ensure equality, create opportunities and an overall better standard of living.⁴Item Open Access Moderne teoretiese benaderings van international verhoudinge(University of the Free State, 1973-01) Barnard, Lukas Daniel; Wessels, F. J. H.Item 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.Item 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 availableItem 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.Item Open Access Die grondwetlikheid van die vasstelling van maksimum werkure ingevolge die Wet op Basiese Diensvoorwaardes(University of the Free State, 2009-11) Marais, Maria Elizabeth; Pretorius, J. L.English: The purpose of the Basic Conditions of Employment Act is to advance economic development and social justice by fulfilling the primary objects of the Act which are to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution, and to comply with obligations incurred by the Republic as a member state of the International Labour Organisation. Section 9(1) read with section 10(1) of the Act has the effect that employees covered by the sections are not allowed to work for the same employer for more than 55 hours per week. This does not prevent employees from working longer hours in total in terms of employment agreements with different employers, an option that entails certain disadvantages. The study investigates the constitutionality of the limitation of the opportunity to work for longer hours for the same employer. Reference to comparative law focuses on the legal position in America, Germany and Canada. Throughout the study the notion that work involves more than a trade agreement in terms of which labour is sold, is a basic theme. Constitutional perspectives on the concepts human dignity and freedom, with reference to freedom of the person as well as freedom of contract, are discussed. A direct relationship between work and employment, and the development of personality and human dignity, is indicated. The discussion leads to a conclusion that the relevant articles limit the rights to human dignity and freedom of the person, including freedom of contract, of the employees concerned. Human dignity is also discussed within the context of the entrenchment of socioeconomic rights. The relevant provisions are substantively assessed in terms of the reasonableness standard set by the Constitution. The conclusion is reached that the provisions cannot be accounted for on this basis. A third fundamental constitutional principle, equality, is considered. A substantive assessment in terms of the applicable test established in Harksen v Lane NO reveals that the provisions have the effect of reinforcing the disadvantaged position, owing to past discrimination, of black people and women with regard to job opportunities, which supports a conclusion that the relevant provisions constitute indirect unfair discrimination based on race, gender and socio-economic status. It furthermore appears that, although the provisions pass the rationality test that applies to provisions that regulate trade, occupation or profession, the fact that the regulating effect of the provisions violates fundamental constitutional rights, constitutes a violation of the right to freedom of trade, occupation or profession, protected by section 22 of the Constitution. The study also focuses on section 23(1) of the Constitution that determines that everyone has a right to fair labour practices, as well as on section 23(5) that confers a right to engage in collective bargaining. It appears that the provisions have a negative effect as far as work security is concerned, and therefore are unfair. The position with regard to section 23(5) is that the bargaining options of union members and employers are limited by the determination of minimum standards. The study concludes with an application of the section 36 test for the justification of limitations of constitutional rights. The adverse effects and the objects of the relevant provisions, taking into account the extent to which the provisions effectively promote the objects, are weighed up proportionally. Less restrictive means by which the objects can be promoted, are discussed. A conclusion is reached that the infringement of the constitutional rights of employees who are adversely affected by the relevant provisions, cannot be justified.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.