Since 25 January 1994, when the interim Constitution came into operation, South Africa's criminal justice system became subject to constitutional provisions, especially the Bill of Rights. All forms of punishment and treatment are subject to the provisions of the Constitution. The first casualties were the death penalty and corporal punishment, which were found to be unconstitutional by the Constitutional Court. Since our criminal justice jurisprudence is still in the developing stage, a comparative analysis with the Canadian and American penal systems forms part of this thesis. Provisions of the Constitution, which will have an indirect influence on punishment include, access to information, just administrative action and state institutions supporting democracy. The following provisions of the Bill of Rights are expected to have a significant impact on punishment in all its facets, equality; human dignity; life; freedom and security of the person; freedom from slavery, servitude and forced labour; and the rights of children. Judgments of the Constitutional Court, which abolished the death penalty and corporal punishment are examined since they were the first indication the Court gave on aspects of punishment. The Constitution also deals specifically with the rights of arrested, detained and accused persons. It is within this provision that 2 the rights of prisoners are spelt out. Imprisonment as a form of punishment, has to conform to the provisions of the Constitution, and the Correctional Services Act is an attempt to render imprisonment compliant. With the abolition of the death penalty and corporal punishment, the effect of constitutional provisions on conventional forms of punishment and the overpopulation of prisons, the establishment of alternative forms of punishment, which would pass constitutional muster, is imperative. The Child Justice Bill is an attempt to establish a unique system for juveniles who commit offences / Penology / D. Lit. et Phil. (Penology)

De importância central para o debate sobre a efetivação de princípios constitucionais, a distinção entre princípios e regras desenvolvida por Robert Alexy tem sido objeto de considerações opostas quanto à sua adequação e suas implicações práticas: por um lado é defendida como uma forma de garantir judicialmente a máxima realização das normas constitucionais, por outro, é criticada por levar ao acúmulo de poder nos órgãos judiciais e por comprometer a segurança jurídica. Essa polarização está diretamente relacionada à compreensão sobre o modo de solução do conflito entre um princípio e uma regra. Concebidos, quase que paradoxalmente, como normas que ordenam que algo seja realizado na maior medida possível dentro possibilidades fáticas e jurídicas existentes caso dos princípios e normas que contêm determinações no âmbito daquilo que é fática e juridicamente possível caso das regras , essas duas espécies normativas podem prescrever consequências jurídicas opostas a uma mesma situação, dando ensejo a um conflito cuja relevância não se limita ao âmbito metodológico, mas também tem implicações práticas diretas. Dependendo dos ônus argumentativos que forem impostos pelo método de solução deste conflito normativo, tem-se um cenário mais favorável à prevalência das regras ou, de modo oposto, à sua superação para a efetivação dos princípios colidentes, o que é extremamente relevante, uma vez que a positivação das regras tende a estabilizar as expectativas dos seus destinatários, fomentando a segurança jurídica, e a preservar a competência decisória de agentes estatais que, muitas vezes, são mais representativos ou tecnicamente mais capacitados para decidir sobre a melhor forma de concretizar os princípios constitucionais do que os órgãos judiciais. Para que essas funções possam ser cumpridas, o conflito entre um princípio e uma regra não pode ser resolvido por meio de um sopesamento entre princípios materiais, nem compreendido como uma relação de restrição à realização do princípio pela regra, que, diante de inevitáveis resultados indesejados, acaba sendo relativizada em situações indefinidas ou descritas por critérios excessivamente vagos. É necessário que as regras sejam mais resistentes à superação e vinculem o aplicador do direito em maior medida do que os princípios, o que pode ser observado em dois métodos de solução para o conflito entre um princípio e uma regra defendidos pelos adeptos da teoria dos princípios: o exame de proporcionalidade e o sopesamento envolvendo princípios materiais e formais. Orientados por parâmetros argumentativos distintos, que podem ser claros e bem definidos, no caso do exame de proporcionalidade, ou abstratos e complexos, no caso do sopesamento envolvendo princípios formais e materiais embora nesse caso tendam a ser mais adequados, pois que permitem a consideração de outros aspectos além do grau de realização dos princípios materiais , esses métodos levam a soluções mais equilibradas para o conflito entre um princípio e uma regra, atenuando a influência da teoria dos princípios tanto para a proteção de direitos por meio da adjudicação, como também para a concentração de competência decisória nos órgãos judiciais e para o casuísmo na aplicação do direito. / Central in the debate on constitutional principles, the distinction of legal norms into principles and rules developed by Robert Alexy has been either defended by most of its adepts as necessary means to ensure the realization of constitutional rights through adjudication or criticized for concentrating power in the judiciary branch and reducing legal stability and reliance. This polarization is directly related to the comprehension of the resolution of the conflict between principles and rules. Described almost paradoxically as norms requiring something to be realized to the greatest extent possible, given the factual and legal possibilities at hand case of the principles and norms that entail definitions in the realm of what is factual and legally possible case of the rules , norms of these two kinds can prescribe different consequences to the same situation, which leads to a normative conflict with not only methodological but also practical implications. Depending on the argumentative burdens imposed by the method applied to solve this normative conflict, the scenario can be more prone to rule-based decisions, or, adversely, to overruling and principle-based decision-making, which is extremely relevant given that rules tend to stabilize expectations, thus promoting legal stability, and to protect the decision-making competence of state branches that are often more representative and instrumentally more capable of taking better decisions on the realization of constitutional principles than the judiciary bodies. For these functions to be fulfilled, the conflict between a principle and a rule cannot be solved neither by means of a balance between material principles nor by assuming that the principles realization is always constrained by the rule, since this constraint, often resulting in unwanted effects, ends being overridden in situations either described in extremely vague terms or not at all. Rules impose stronger constraints in decision-making and must bind the decision-maker to a higher extent than principles, as presented in the two methods admitted by the principles theory to decide on the prevalence of a rule or an opposing principle: the proportionality test and the balancing between formal and substantive principles. Guided by distinct argumentative standards, which can be clear and well defined in the proportionality test or abstract and complex when balancing involves formal and substantive principles in this case the standards might be more suitable to decision-making by permitting the consideration of other elements in addition to the extent of the realization of substantive principles , these methods tend to lead to more balanced solutions to the conflict between a principle and a rule, thus lessening the influence of the principles theory on the realization of constitutional rights through adjudication, as well as on the concentration of power in the judiciary bodies and on the decrease of legal stability and reliance

When the Metis were included in section 35 of the Constitution Act 1982, Metis leaders were euphoric. With the constitutional recognition of the Metis as on of the three Aboriginal peoples of Canada and the protection of Metis Aboriginal rights in section 35 of the Constitution Act, 1982, it was thought that the battle for recognition was over. Surely the next step would be the federal government's recognition of its jurisdiction for the Metis and the recognition by the courts and the Crown that Metis have Aboriginal rights that can be exercised along with those of the Indians and the Inuit. But Metis expectations were short lived. More than twenty years later, Canada refuses to recognize it has legislative jurisdiction for the Metis, arguing that Metis are a provincial legislative responsibility. And both the federal and provincial governments have failed to conduct themselves in keeping with the principle of the "honour of the Crown" because they consistently deny that Metis have Aboriginal rights. Whenever Metis harvesters attempt to exercise their rights, the Crown is there as a game warden, prosecutor or jailor, but never as a fiduciary to maintain the Crown's honour. The Crown often argues that without a clear understanding of Metis definition and identity, Metis Aboriginal rights would be too difficult to administer. More importantly, the Crown has argued that if Aboriginal rights are linked with pre-contact customs practices and traditions, the Metis could not possibly meet the Aboriginal rights test that has been established by the courts. But then came the decision in R. v. Powley making it clear that the Metis are a distinct people, separate from the Indians and the Inuit, with Aboriginal rights flowing from the customs, practices and traditions of Metis communities that emerged subsequent to the period of first contact, and prior to the exercise of "effective control" by the Crown. The Supreme Court of Canada found in favor of Powley by using a "purposive" approach in the analysis of Metis Aboriginal rights and by not mechanically applying the section 35 justification analysis. The purpose of this thesis is to develop a core set of principles that can be used as a framework for a purposive analysis of Metis Aboriginal rights. The principles support the propositions that: Metis fall within the exclusive legislative jurisdiction of the federal government; that Metis have Aboriginal rights that are recognized and affirmed by section 35; and, that Metis Aboriginal rights are immunized from the application of provincial wildlife regulations because of the doctrine of interjurisdictional immunity. / Law, Peter A. Allard School of / Graduate

The issue of religion and its place in society has been a topic of controversy and debate since long before the creation of our constitutional republic. The relationship between religion and government has witnessed some of its most intense conflicts when the governmental entity in question involves public education. As our country moved into the 20th century, legal challenges in the field of public education began to emerge calling into question the constitutionality of various policies and practices at both the state and local levels. This dissertation examined the legal methodology that was initially developed and then subsequently modified as the judicial branch has interpreted how the Establishment Clause delineates the relationship between religion and public education. Because the United States Supreme Court has not overturned its decision in Lemon v. Kurtzman, the tri-partite test it established still remains the law of the land. Subsequent decisions by the Court leading up to their ruling in Mitchell v. Helms, however, have continued to modify the judiciary's approach toward the use of the Lemon test in Establishment Clause jurisprudence. This research analyzed the decisions of the various federal courts subsequent to the ruling issued in Mitchell to discern both the present position of the federal judiciary as it relates to the continued validity of Lemon and theorizes how the future course of any Establishment Clause legal challenges may ultimately be resolved by the federal courts. The analysis suggested that, while the Supreme Court has avoided Lemon's three-part test as the standard for evaluating Establishment Clause claims, the lower courts continue to place a strong emphasis on the importance of the test established in Lemon as the basis for how they render their decisions with issues that involve public education. This data indicated that Lemon continues to be an important tool for determining the validity of state programs and policies involving federal questions related to the Establishment Clause.

"The purpose of this paper is to make a study of some of the Supreme Court decisions that have affected education. The cases to be cited are the ones thought to be of most value to the writer in the field of school administration. No attempt has been made to show all the court decisions which have influenced education. Cases from the United States Supreme Court and cases from several of the various State Supreme Courts have been selected and studied"--Introduction. / "August, 1951." / Typescript. / Advisor: H. W. Dean, Professor Directing Paper. / "Submitted to the Graduate Council of Florida State University in partial fulfillment of the requirements for the degree of Master of Arts." / Includes bibliographical references (leaves 43-45).

This thesis studies the Cambodian Constitution from a socio-legal and ethnographic perspective, highlighting some of the multiple ways in which diverse constitutional discourses and practices manifest themselves in the country outside of judicial, or even state, institutions. The thesis starts by recognising that existing literature typically associates constitutionalism exclusively with the work of courts, and with liberal-democracy, before providing a series of case studies that focus on constitutional practices that are typically obscured from view by such a focus. These case studies provide accounts of how, for example: international actors and local civil society groups engaged in Cambodia’s 1993 constitution-making process; Cambodia’s apparently liberal-democratic Constitution has been used publicly by the government to facilitate and justify authoritarianism; court cases are themselves used by local activists to conduct domestic and internationally-focused advocacy; constitutional provisions have helped to shape the way Buddhist monks understand their role in society and politics; and artists are helping to shape constitutional definitions of national identity and culture through their interactions with or avoidance of state censorship. The result is a nuanced, empirically grounded account of a constitutional order that has been largely overlooked by scholars in the country and abroad. However, it is also an exploration of the ways in which constitutionalism can be understood to operate outside of courts or state institutions, and how a liberal-democratic constitution can simultaneously act as a source of legitimacy for and challenge to authoritarianism. / Graduate / 2023-02-06

No description available.

This dissertation discusses the history of the politics of abortion in Argentina from the standpoint of democratic constitutionalism. It describes the normative world in which a legal rule criminalizing women who interrupted their pregnancies emerged in 1921, and the slow process through which the rule was re-politicized. The dissertation makes a contribution to the theory of democratic constitutionalism, by highlighting its usefulness for comparative analyses because it is based on common and usual features of democratic societies. It also contributes to the history of abortion regulation in Argentina, by underscoring the life of the law outside courts. Based on social movement theory, the dissertation contributes to the literature that finds that individuals play a very meaningful role in processes of legal and constitutional change.

Dedication to a Process argues that while judicial review is a justified decision-making procedure in a democratic scheme of government on instrumentalist grounds, it will always come at a politico-moral cost. Chapter One surveys Thomas Christiano’s egalitarian conception of democracy to establish a scheme of democracy upon which to ground this analysis. This chapter argues that under Christiano’s account of the normative grounds of democracy, which is rooted in the fundamental social justice principle of public equality, there are necessary limits to democratic authority. When these limits are exceeded, there is a results-based argument available that can justify the use of judicial review from a Razian perspective, however, this manner of decision-making comes at the concession of a significant politico-moral value that is bound up with democratic authority: intrinsic justice. Chapter Two analyzes Ronald Dworkin’s constitutional conception of democracy to determine if there is a way to pay down the cost of judicial review. This chapter will argue that a purely content-based analysis like the one Dworkin is suggesting with his holistic scheme of democratic authority may be able to avoid the loss of intrinsic justice. However, if we are more concerned not with content but with who the authoritative voice is on constitutional matters, as is the case with Christiano’s modular scheme of democratic authority, then we must revert to the conclusion reached in Chapter One. Chapter Three considers Wil Waluchow’s theory of Community Constitutional Morality to rule out the possibility that judges appealing to a community’s positive normative commitments as a kind of customary constitutional law can be grounded in public equality, thereby retaining democratic authority and avoiding the politico-moral cost established in Chapter One. This chapter will argue, however, that despite passing the Public Equality Test mechanically, there is an important value argument to be made that locates intrinsic justice within characteristically democratic institutions such as the legislature and that any compromise of the democratic process must result in a politico-moral loss if we are indeed dedicated to the process. / Thesis / Master of Arts (MA)

Constitution as Promise contends that constitutions are sets of promises. As such, it argues that they must be interpreted in a living constitutionalist manner. Chapter One argues that constitutions meet the analytic criteria to be considered promises. It is argued that constitutions are expressions of the intention of a government to bind itself to a set of principles. Absent this expression, citizens lack assurance of the protection of their rights and legal recourse when their rights are violated. Chapter Two considers the use of promise in contract theory and investigates its viability in constitutional theory. Some theories of contract are skeptical of promise as a basis for contract. The chapter argues that while promise may be an inadequate moral underpinning for the law of contract, it is apt for the law of constitutions. Chapter Three notes that constitutions are sets of vague promises. Vague promises ought not be interpreted solely in accordance with the intentions of promisors or promisees. Traditional forms of originalism contend that constitutions should be interpreted according to the intentions of their framers. So, constitution as promise rules out traditional forms of originalism. Chapter Four considers the positive consequences of constitution as promise. It argues that vague promises ought to be interpreted through a negotiation process between promisor and promisee. This negotiation should consider what moral reasoning reveals about the promise’s terms, the context in which the promise was uttered, the capacities and competing obligations of the promisor, and the expectations of the promisee. To properly consider these factors, the chapter maintains that the negotiation must occur on a case-by-case basis, incrementally specifying the promise’s terms. The chapter then notes the similarities between this negotiation process and the interpretive suggestions of living constitutionalism. It concludes that living constitutionalism is entailed by the promissory nature of constitutions. / Thesis / Master of Philosophy (MA) / Constitution as Promise investigates the interpretive consequences of conceptualizing constitutions as promises from governments to citizens. It first argues that constitutions satisfy the criteria to be considered promises. It then maintains that the morality of promising is apt for application to constitutional law. In the third and fourth chapters, it considers how one ought to interpret vague promises. Vague promises, it argues, should be interpreted incrementally, on a case-by-case basis. The promisor and the promisee must come to an agreement about what their vague promise requires, as new cases arise. When they cannot agree, promisor and promisee need an adjudicator. Since constitutions are sets of vague promises, they must also be interpreted incrementally, on a case-by-case basis and require adjudication where agreement is impossible. Constitution as Promise concludes that the only available interpretive theory that is sensitive to constitution’s nature as vague promise is living constitutionalism. As such, constitutions ought to be interpreted in a living constitutionalist manner.