Proefschrift--Utrecht. / "Stellingen": 3 p. laid in.

This thesis attempts to discover out of the debate between Lord Devlin and H.L.A. Hart the theoretical basis of decision-making in cases where there is a conflict between individual moral freedom and social control. It is structured in the form of an analysis of the debate between Devlin and Hart concerning the principles for and against the enforcement of morality. There are five main chapters of the thesis and a short conclusion. The first chapter, headed "The Hart-Devlin Debate", introduces and summarises Devlin's answers and Hart's criticism to the first two hypothetical questions which Devlin addresses to himself, namely, (1) Has society the right to pass judgement at all on matters of morals?, (2) If society has the right to pass judgement, has it also the right to use the weapon of the law to enforce it? It analyses Devlin's attempt to rationally convert the descriptive proposition that the majority have power to enforce morality to the normative proposition that society ought to enforce morality. There is an observation that the co-existing "right" of individual freedom is not debated by rational argument. The second chapter under the heading "The Common Morality and the Feelings Test" sets out the feelings test as expounded by Devlin as a means to determine which rules of morality ought to be enforced. There is a specified list of the qualifications to the feelings test which Hart overlooks for the most part. However I reach the conclusion that it is difficult to authoritatively interpret these qualifications or to give them any substance. Discussion then centres around Hart's objections that the feelings test is an abdication of reason and a source of potential injustice. These objections are not sufficient basis for rejecting the feelings test. The third chapter, called "Moral Paternalism", attempts to isolate the difference in the views of Hart and Devlin by analysis of Hart's phrase "morality as such." Hart creates an artificial distinction between "paternalism" and"enforcement of positive morality," thereby attempting to explain which moral rules ought to be enforced by assigning these two labels. My conclusion is that the only rational distinction lies in the availability of empirical evidence to prove physical harm and non-availability of empirical evidence to prove moral harm. Hart has a stricter onus of proof than Devlin when it comes to proving harm to the individual. However, it is difficult to sustain the distinction of physical and non-physical harm as the basis for decisions which we “want” to make. The distinction is rendered impotent in practice by finding elements of harm to society in the action of the individual and thereby justifying enforcement of morals by using Mill's principle of liberty. Concepts of private and public harm are easily used to cloak the real basis of the decision. My conclusion is that the real difference between the views of Hart and Devlin, behind all the "principles," is a difference of value-preference. The fourth chapter, under the heading "Value Difference between Hart and Devlin" discusses the possible reasons for the differing value preferences. It questions whether value preferences can ultimately be traced to prevalent social conditions. There has always been historical debate concerning the mysterious balance between individual freedom and social control. In order to assist in identifying the personal values of Hart and Devlin, their respective theories are viewed in terms of three traditional intellectual antinomies. These antinomies involve the problem of choosing between (a) Public authority or a Platonic elite (b) Individualism or collectivism (c) Reason or faith; intellect or intuition Both Hart and Devlin stand in definite historical intellectual positions and their theories can be compared to the writings of numerous legal and political philosophers. I agree with those writers who argue that a conflict between two ultimate values cannot be settled by reason. Can we argue that Hart's value preference for individual freedom in moral matters is subject to question due to modern social conditions? The fifth chapter is given the name "The Irreversible Disaster Argument." This section analyses Devlin's original argument that society has the right to preserve its common morality. Justification of this argument is attempted in terms of the right of society to prevent ''irreversible disaster." This is an attempt to derive a guiding principle from an extreme fact situation in order to assist to decide the deadlocked values. In times of emergency or threatened disaster, the value of individual freedom ought to he subordinated to other values. An analogy is drawn between Devlin's arguments for the preservation of morality and current arguments for the preservation of the environment. However Devlin's arguments for the enforcement of morality, even in terms of the principle of irreversible disaster, can be met by several unanswerable objections. A short attack is made on Devlin's theory by a similar device of applying the theory to a possible interpretation of modern social conditions. However this criticism does not enable us to subordinate Devlin's value-preference either. The conclusion is that Hart and Devlin have different value-preferences and their pronounced theoretical principles only dress these preferences with the garb of rationality. Ultimately they are only able to state the theories which they develop to support their personal values and cannot explain why. / Law, Peter A. Allard School of / Graduate

South Africa is one of the most unequal countries globally, and inequality is distributed along racial lines. The impoverishment of black people and its endurance is a product of colonialism and apartheid projects. The PIU problem (poverty, inequality and unemployment) is thus a manifestation of the longue durée of colonialism and apartheid. The notion of the longue durée focuses on deeply embedded and enduring traits of the social, economic and political reality. This study focuses on the concept and discourse of non-racialism, and it shows that it exists as a political idea, a constitutional value and a social guideline. The concept of non-racialism is used in the title and is central to the research problem identified here: black impoverishment and sustained racial inequality. This study explores the role of these three interlocutors: non-racialism, neo-liberalism and whiteness in the longue durée of impoverishment and inequality. The main arguments presented in this dissertation are three-fold. First, the ANC’s idea of non-racialism is based on white grammar; secondly, the dominant societal perception of non-racialism is based on liberal sentiments and ideas. Finally, that neo-liberal economic policy does not fundamentally challenge the structural underpinnings of racial inequality. Having traced the historical evolution of the discourse of non-racialism in liberation parties’ emancipatory visions and in constitutional jurisprudence, this study ultimately grapples with the question whether non-racialism in its current form can contribute to a society that reflects racial justice. / Dissertation (LLM)--University of Pretoria, 2021. / Jurisprudence / LLM / Unrestricted

This study commences from the premises that the1994 political settlement in South Africa as reflected by the 1996 Constitution and government policies offer no solution to the land question in South Africa. By the land question, I mean the unresolved question of historical injustice relating to land dispossession through various unjust actions that manifested in both colonial and apartheid times.The study asserts that the ideological and philosophical thrust of the Constitution is completely misaligned to the lived experiences and indigenous philosophies by Africans such as Ubuntu in favour of Western philosophies represented by neo-liberalism. This misalignment adversely affects effective resolution of the land question because it is neither bifocal nor restorative and consequently protects the status quo. As regards policies of the current government and the ruling party the study argues that the much celebrated political dispensation of 1996 witnessed a change of a government and not necessarily that of a state. As I will show failure of state succession means that the colonial state form, and consequently deprivation of Africans of title to their lands, remain. The study argues that the deliberate disregard of African philosophies in the negotiation process and consequently in the form and structure of the Constitution has created a false perception that the land question was resolved, and that what was left of it would be covered by the provisions of the Constitution. The Constitution, which has a complete disregard of the violent past as evident in land theft through conquest, pretends that South African land questions started with apartheid. The study traces the rise of South Africa’s neo-liberalism and her Constitution to the fall of feudalism in Europe, the wars of conquests and subjugation, the rise and fall of apartheid and the disregard of African philosophies and practices by the ANC before and after its rise to power. The study concludes that neither the current Constitution, nor current half-hearted government policies on land will provide a solution to the land question. The study consider the Constitution an instrument for legalizing land theft and calls for a completely new Constitutional dispensation as opposed to an incremental approach. The study concludes by proposing six steps that should be taken to developing a new Constitution. Central to those six steps is the principle of participation by the victims of conquest and subjugation. Participation will mean the latitude granted to victims to make inputs into the contents of the Constitution before adoption by parliament and to confirm their support for a new document through a referendum shortly before it is officially signed off by the head of state. This study will therefore consider, the hitherto unappreciated views on human rights, by victims of colonialism, which views are in many respects contrary to those reflected in the South African Constitution. Consequently, one of the central arguments of this study is, therefore, that the realignment of human rights with the land question necessarily implies the reframing of the concept of human rights itself. / Mini Dissertation (MPhil (Law and Political Justice))--University of Pretoria, 2018. / Jurisprudence / MPhil (Law and Political Justice) / Unrestricted

A research report submitted to the Faculty of Health Sciences, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Medicine in Diagnostic Radiology Johannesburg, 2014. / INTRODUCTION: Litigation may involve radiology personnel radiological reports and imaging studies as evidence and therefore influences clinical practice. Litigation is implicated in defensive radiology practices. There are no publications addressing litigation and radiology specifically for South Africa. AIM: To determine the number of legal cases involving radiological personnel and radiological investigations in South Africa and frequency of citing of these within the law reports. METHOD: The search engine attached to The Southern African Legal Information Institute (SAFLII) website was searched systematically for the period 2001 to 2010 with keywords relating to radiologists, radiographers and equipment / imaging modalities using a frequency ‘citation’ score. RESULTS: 114 legal cases involving radiological personnel and radiological investigations in South Africa were identified (0.5% of all cases reported). Few radiologists have been sued in medicolegal lawsuits, but nearly a quarter of all radiology medicolegal reports, involved radiologists providing expert opinion and reports. In addition to being the commonest imaging investigation to feature in medicolegal reports (in over two thirds), plain X-rays also had the highest citation scores. CONCLUSIONS: Very few radiologists have been the accused in medicolegal suits, yet radiologists were involved in nearly a quarter of reports, predominantly providing expert opinion and reports. Plain X-rays were the commonest imaging investigation to feature but CT scanning featured in 20% of reports. This is of particular concern because this is considered an advanced technology, not widely available in South Africa.

Thesis (LLM) --University of Pretoria, 2009. / No abstract available. Includes bibliographical references .

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Scholarship on modern Japanese law tends to focus on the codification of Japan’s legal system in the 1890s and its dramatic overhaul after 1945. This dissertation argues that the interwar years constituted a third point of inflection that transformed Japanese law and laid the foundation for the Japanese welfare state. In the wake of World War I, amid varied and widespread social tumult, a group of influential professors at Tokyo Imperial University undertook to remake civil law as an instrument of social policy. They rejected the Japanese civil code as it was codified in the 1890s, along with the methods of strict interpretation developed by their teachers. In its place they envisioned a new paradigm of legal thinking and practice that they believed could mend tearing social fabric. Their ideas were inspired by a transnational discourse on the centrality of society to law that emerged at the end of the nineteenth century. In Japan they coalesced into a new and nationally distinct legal movement that came to be called “social jurisprudence” (shakai hōgaku). There were many elements, but the most notable were an emphasis on the indeterminacy of legal interpretation and a preference for informal conflict resolution, as opposed to the formal procedures of the modern judiciary. The 1923 Kanto Earthquake afforded an opportunity to put these ideas into practice on a large scale. In these years two of the most notable features of modern Japanese law were established: reliance on judicial precedents rather than simply the statutory law, and the prevalence of informal mediation. With these tools, the social jurist strove to reform urban housing, rural tenancy, labor relations, and family law. From the 1930s they took their ideas to the Chinese mainland, where they were deployed in the puppet state Manchukuo in an attempt to pacify the local population by harnessing “Asian” customs. Never did these efforts hit their intended mark, yet they gave rise to new legislation, legal practices, and frames for thinking about society, history and gender that have endured into the present.

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No description available.