In the absence of formal legal recognition, domestic partners (i.e. persons who cohabit outside of marriage) are required to regulate the consequences of their relationship by utilising alternative regulatory measures and remedies which are, for the most part, inadequate. The traditional justification used to differentiate between domestic partners and spouses is known by some as the “choice argument”. The choice argument is based on the rationale that persons who choose not to marry cannot claim spousal benefits. It understands choice narrowly as it only takes into account an objective legal impediment to marriage. As such, it has been the driving force behind the non-recognition of heterosexual domestic partnerships. Same-sex domestic partners have, however, been able to sidestep the choice argument considering that their sexual orientation has until recently been an objective legal impediment against marriage. According to the majority of legal commentators the enactment of the Civil Union Act 17 of 2006 has removed the objective legal impediment against same-sex marriage. As such, they argue that the choice argument should now be applied to both heterosexual and same-sex domestic partners equally. The Constitutional Court has, however, held that unless the legislature intervened the benefits accrued by same-sex domestic partners prior to the enactment of the Civil Union Act 17 of 2006 should be available to them exclusively. As the legislature has not yet done so, the legislature does not appear to view the choice argument as being equally applicable to heterosexual and same-sex couples. Taking into consideration the choice argument’s narrow understanding of choice, together with the possible unfair discrimination caused by its application, an alternative theoretical basis for the future recognition and regulation of domestic partnerships has to be found. Three possible solutions will be investigated in this study, namely, the model of contextualised choice, the function-over-form approach, and finally, the Smith model. Because of the invasive effect of the latter two approaches, the study advocates for the adoption of the model of contextualised choice. If adopted it will imply that the subjective considerations of domestic partners will be taken into account and they will be afforded a minimum degree of protection based on need. If this approach is adopted it must be determined to what extent it is supported in proposed legislation. Accordingly, it has to be investigated whether proposed legislation provides domestic partners with need-based claims while still upholding the established differences between domestic partnerships and formalised relationships. It is ultimately concluded that the proposed legislation will have the effect of blurring the differences insofar as registered domestic partnerships are concerned. The reason for this is that such a partnership comes into existence through a public expression of the partners’ commitment and, as such, does not really fall within the ambit of the definition of a domestic partnership in the narrow sense of the word. With regard to unregistered domestic partners, it is concluded that the proposed legislation goes too far in protecting unregistered partners’ proprietary rights (even if only on an ex post facto basis) as these claims are not based on need. As such, it is recommended that the proposed legislation be redrafted. If not redrafted the proposed legislation can possibly have the effect of not only infringing on the autonomy of one or both of the partners but also create a regulatory system which does not fully appreciate the differences between marriage and domestic partnerships. / Dissertation (LLM)--University of Pretoria, 2014 / gm2015 / Centre for Human Rights / LLM / Unrestricted

Generally binding ordinances of municipalities Abstract This thesis deals with generally binding ordinances of municipalities. Generally binding ordinances are legal regulation which issue municipalities in independent competence on the basis of Article 104 Paragraph 3 of the Constitution of the Czech Republic. It is necessary to distinguish them from decree of municipality issued in delegated competence according to Article 79 Paragraph 3 of Constitution. The approach to generally binding ordinances significantly influenced the Constitutional Court. The first chapter deals with constitutional and legal basics of local administration generally, also with territorial and personal basis and independent and delegated competence of municipalities. The second chapter analyses in more detail process of passing of generally binding ordinances and potential public involvement on this process, also content requirements and structure of generally binding ordinances. It deals also with announcement and record of legal regulation of municipalities and draws attention to planned colection of legal regulation of municipalities and regions. Part of the chapter is dedicated to role of Minstry of the Interior, which administers supervision of issue and content of generally binding ordinances, and to proceedings before the...

In certifying the Constitution of the Republic of South Africa, 1996 the Constitutional Court of the Republic of South Africa emphasised the importance of the notions of intergovernmental relations and co-operative government by inter alia stressing as follows: “The constitutional system chosen by the Constitutional Assembly is one of co-operative government in which the powers of important functional areas are allocated concurrently to the national and provincial spheres of government. This choice, instead of one of competitive federalism which some political parties may have favoured, was a choice which the Constitutional Assembly was entitled to make in terms of the Constitutional principles.” In view of the above, it is evident that co-operative government can be regarded as one of the cornerstones of the new constitutional dispensation in South Africa and that intergovernmental relations can be regarded as a practical instrument for ensuring co-operative government in the delivery of services by the three spheres of government. This study therefore seeks to establish if intergovernmental relations in South Africa, with specific reference to the City of Tshwane Metropolitan Municipality, facilitate the performance of the local sphere of government with a view to help improve the role of intergovernmental relations in facilitating service delivery. In achieving this purpose, a whole range of research methods such as the literature review and policy documents were used to collect data on the subject matter. Relevant data was analysed and was compared with legislative guidelines on the subject matter. The findings and conclusions of the study indicated that: “Intergovernmental relations in South Africa facilitate the performance of the local sphere of government in the delivery of services with specific reference to the City of Tshwane Metropolitan Municipality.” In order to further inculcate a culture of intergovernmental relations in service delivery in the City of Tshwane Metropolitan Municipality and local government in general, the management of change and human resources development interventions are recommended. The study further recommends that further research in this discipline should continue as long as political innovation exists. / Thesis (PhD (Public Affairs))--University of Pretoria, 2006. / School of Public Management and Administration (SPMA) / PhD / unrestricted

Do Constitutional Court's rulings bind lower courts? Doctrinal and empirical perspectives Abstract Czech doctrinal researchers conclude that decisions of the Czech Constitutional Court are - at least in some respect - bind lower courts pro futuro. Although continental legal systems do not officially subscribe to a doctrine of precedent, a quasi-precedential role of the jurisprudence of higher courts is often defended by theorists. However, this theory of quasi-precedent has never been empirically tested in the Czech Republic. This dissertation constitutes a first such attempt as it examines whether courts actually decide in practice according to the jurisprudence of the Czech Constitutional Court. Specifically, it focuses on a guideline decision by the Czech Constitutional Court on parole decisions made in 2018. The guideline decision emphasized that parole decisions - made by courts in the Czech legal system and not by parole boards or committees - constitute a systemic problem since they are poorly reasoned and as a result they are ambiguous and not persuasive. The guideline decision in detail stated what reasons can be used to justify parole decision and how various factors, such as previous convictions, should be interpreted when deciding on parole. This dissertation studies two groups of first-level...

The Doctrine of Substantial Core of the Constitution of the Slovak Republic in the Light of Rulling Pl. ÚS 21/2014 Issued by the Constitutional Court of the Slovak Republic Abstract Presented paper is concerned with the question of substantive core of the Constitution of the Slovak Republic. The aim of the paper is to analyze the theory of substantive core of constitution in terms of doctrinal debate and of rulling PL. US 21/2014 issued by the Constitutional Court of the Slovak Republic. The author considers it as a crucial subject that is even more current in the light of the abovementioned rulling of Constitutional Court, which may be deemed as groundbreaking. Author of presented paper has focused on several questionable aspects of substantive core theory, analyzing its theoretical and practical development. The paper analyzes especially questions of justification of the existence of constitutional substantive core, its content and its protection, mainly provided by the Constitutional Court. Anylisis of the abovementioned rulling of the Constitutional Court and critical examination of some of its objectionable considerations may be considered as the crucial part of the presented paper. The paper includes comparative analysis of similar theories in constitutional systems of India, Colombia and United...

The Trust in law within the case law of the Constitutional Court of the Czech Republic Abstract The main topic of the diploma thesis is an attitude of the Constitutional Court of the Czech Republic towards the principle of trust in law presented in its case law. The thesis is stratified into three major sections. The first part is focused on the Constitutional Court as one of the fundamental constitutional institutions - in the beginning of the thesis highlights its substance and explains why it's case law is worth studying in detail. Considering the main topic, some aspects described in this first part are analyzed through the optics of trust or credibility. Firstly, the significance of constitutionality protection and the history of constitutional judiciary are studied shortly. Further, this part inspects the position of the Constitutional Court within our constitutional system. Also, the relationship between the Constitutional Court and general courts is studied and separate chapter is dedicated to the legislation of the Constitutional Court's executive mechanisms. Moreover, the problematics of case law as a theoretical concept and controversial questions which are regarding the case law analysed in the literature are mentioned. The first part is concluded by investigating the criticized aspects of...

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This public law study aims to analyze abstract norm review in Sweden and Azerbaijan, conducted byspecific entities – the Swedish Council on Legislation (Lagrådet) and the Constitutional Court ofAzerbaijan, respectively. The primary focus is to examine and compare the approaches of Lagrådet andthe Azerbaijani Constitutional Court in abstract norm control.In this essay, a comparison is made between abstract norm review in Sweden and Azerbaijan, revealingsimilarities in purpose but significant differences in the powers and the binding nature of decisions.Historically, Sweden has undergone a longer constitutional development, while Azerbaijan hasundergone changes following its independence from the Soviet Union, which is noticeable throughvarious historical and political contexts shaping their norm review processes.In practice, Lagrådet in Sweden plays an advisory role during the legislative process. Although itsadvice carries significant weight, the final decision to follow or deviate from these recommendationslies with the government. Meanwhile, the Constitutional Court in Azerbaijan possesses direct legallybinding authority over its decisions, which affect all organs and individuals in the country.The difference in independence and legitimacy between these institutions is reflected in their impact onlegislation. Despite its active role, Lagrådet is subordinate to the government's decisions. Meanwhile,the Constitutional Court in Azerbaijan has a more independent and tangible influence on legislation.

La règle du précédent, clé de voûte de la Common law, impose au juge de respecter les décisions analogues précédentes, en l’absence de justification pour se départir de celles-ci. Cette règle est donc logiquement absente de la théorie du droit romano-germanique, selon laquelle, schématiquement, le juge n’est soumis qu’à la loi. Pourtant, l’étude des décisions des juridictions de tradition romaniste et, plus précisément, des cours constitutionnelles montrent que ces dernières n’hésitent pas à appliquer la règle du précédent. Il ne s’agit pas d’une volonté de se soumettre à un précédent contraignant et obligatoire, mais de juger en conformité et dans la logique des solutions antérieurement adoptées. L’autorité du précédent constitutionnel est donc, le plus souvent, psychologique et le juge constitutionnel peut renoncer à l’appliquer lorsqu’il l’estime nécessaire. Le précédent devient ainsi un instrument judiciaire universel, permettant d’assurer, indifféremment du système juridique, l’uniformité et la cohérence de la jurisprudence. / Precedent, the key-stone of Common law, obliges the Court to comply with analogous preceding decisions, in the absence of justification for abandoning them. This rule is therefore logically absent from the theory of Civil law, according to which, schematically, the Court is only bound by written law. Nevertheless, the study of court decisions in Civil law systems and, more exactly, those of constitutional courts show that they do not hesitate to apply the rules of precedent. It is not a question of a will to be held by a binding and obligatory precedent, but to judge in conformity and within the logic of previously adopted solutions. The authority of constitutional precedent is therefore, more often than not, psychological and the constitutional court can desist from applying it when it deems necessary. Precedent thus becomes a universal judicial instrument, enabling to ensure, regardless of the legal system, the uniformity and the coherence of case-law.

The scope of this thesis in public law discussed the abstract judicial review in Sweden and Germany, which is practiced by a specified organ. In Sweden, the abstract judicial review is practiced by the Council on Legislation, and in Germany by the German Federal Constitutional Court. This study focuses on how the Swedish Council on Legislation and the German Constitutional Court differ in the practice of the abstract norm control. Moreover, a theoretical discussion is applied to regarding whether the Swedish justice system is in need of setting up a constitutional court or whether the Swedish Council on Legislation should be in a stronger position. Throughout this study, we concluded that the Swedish legal system is not in need to establish a Constitutional Court or another organ for the maintenance of an adequate standard norm control in Sweden. To this end, we suggest that the abstract norm control in Sweden by the law's compatibility with the constitution should be strong, but that there may be reason to further strengthen the review of the Council on Legislation. For instance, enhancing the investigation could be done by creating a legal secretariat and subsequently emphasizing the council’s independence from the parliament and government. By reinforcing the council with legal expertise, such as linking draftsmen to the council, can thus make the council’s opinion legally binding.