This thesis explores the way in which the rules of interpretation of the Vienna Convention on the Law of Treaties have been applied in the context of the US-Canada Free Trade Agreement, the North American Free Trade Agreement, the GATT, the World Trade Organization Agreement and the European Union. The author seeks to analyze the way the dispute settlement panels established according to these agreements and the Court of justice of the European Communities have used the interpretation tools provided by public international law. The author then examines the interpretation framework for international treaties and investigates how Articles 31 and 32 of the Vienna Convention have been applied in the context of each of these agreements or treaties. The extensive panels and court practice surveyed by the author underlines the importance of public international law when interpreting international trade law.

No description available.

M.A. (Applied Linguistics) / The rigid nature of legal language seems to be a major factor contributing to the inaccessibility or unintelligibility of legal texts. This is often also true of the translated texts. As the law plays such an important role in the community at large, influencing and ruling the lives of its members in many ways, it should be accessible to all. The point of departure of this study is therefore the problems surrounding the apparent poor communicative ability of legal texts as well as translated legal texts, not only from the point of view of the uninitiated, but also the initiated, those who are legally literate. In this context, linguistic and extralinguistic characteristics of legal texts, theoretical as well as pragmatic, are identified to illustrate the differences between legal and other technical texts. The development of South African law is discussed in broad terms to illustrate where the various legal categories influencing the nature of legal texts differ or agree. From this it is clear that the South African legal system, while strongly influenced by Roman-Dutch as well as English law, developed indigenously and is therefore unique .. A study of the analysis and interpretation of a legal translation can therefore not, merely with minor adjustment, be compared with studies of legal translation in other countries, because of the vast differences between legal systems.

LL.D. / My dissertation expounds the difficulty of interpreting fundamental claims - as found in a justiciable constitution - in circumstances of social diversity. The basic premise is that successful interpretation depends on the open acknowledgement of the fact of diversity (and its accompanying problems) and a willingness to critically re-evaluate traditional definitions and existing theories of interpretation. In the Introduction I argue that the established conception of social/cultural identity as being stable and isolated, should be replaced by the idea that identity is overlapping, shifting and internally negotiated. Such a conception would create the forum for constitutional . dialogue leading to a temporal and conditional agreement about meaning. I also argue for a more inclusive understanding of the term "interpretation" - analogous to the much broader act of "translating". In chapter two I contend that so-called "monism" - the viewpoint that there is a single correct answer to every problem of interpretation - is an impossible and harmful ideal, undermining the contextuality of interpretation in a diverse society. I discuss the two theories traditionally used by South African courts to ensure "objective/correct" interpretation - literalism and subjectivism - to illustrate the -- unfeasibility of monism. Hart's analytical jurisprudence, in spite of its acceptance of the linguistic contextuality of the law, still postulates so-called "easy cases" where legal meaning can be found instead of negotiated. Finally, I argue that Dworkin's expansive theory of legal constructivism - construing an allperspicacious judge finding the "one correct answer" in the "seamless web of the law" - is both morally unacceptable and practically impossible in a diverse society such as ours. Chapter three explores the hermeneutic dialogue - as expounded by Gadamer - as a more realistic way of perceiving constitutional interpretation in a diverse society. The different social and historical contexts (or "horizons") of the participants - and of the text they interpret- are seen as inescapable and indeed necessary for understanding. Each participant must, however, be prepared to reconsider his/her own pre-conceptions in the light of alternative points of view. I illustrate Gadamer's dilemma of avoiding both extreme context-bound subjectivism and extreme context-free objectivism by discussing two of his critics: Habermas and his theory of "critical hermeneutics" and the ethnocentrism of Rorty. I argue that, in spite of severe problems - specifically the danger of participants destroying the process by way of male fide inputs and of the domination of the dialogue (and of the forum) by established groups - the hermeneutic dialogue remains the only possible way of accommodating diversity in the process of constitutional interpretation. In chapter four I examine three sceptical theories in order to mitigate the (unwarranted?) optimism required by philosophical hermeneutics. Both legal realism and the CLS movement made a valuable contribution to maintain a vigilant and critical attitude towards the reality of the judicial process and to expose the undermining influences of existing social structures and institutionalised practises on this process. Deconstruction, on the other hand, points to the possibility of broadening the interpretive forum by including hitherto non-privileged points of view. I conclude with Caputo's plea for facing the difficult - but not impossible - task of acknowledging diversity within the broad "interpretive community" while maintaining a critical or reflexive attitude towards the process, the other(s) and oneself.

No description available.

published_or_final_version / Law / Master / Master of Laws

The thesis aims at studying the growth and systematization of Shi'i usul al-fiqh in the fifth century, A.H. The attempt involves an analysis of the background against which this systematization developed and takes into account the two major works of the period, representing this systematization. The first is al-Dhari'ah of Sharif al-Murtada (d. 436/1044) and the second, 'Uddat al-Usul of Shaykh Abu Ja'far al-Tusi (d. 460/1067). The analysis of the books attempts to trace the pattern of development each writer has followed, the methodology of each and, ultimately, the basic principles each evolved as a basis for his usul al-fiqh. A certain amount of emphasis has been laid throughout the work, on determining what distinct concepts were being developed, as compared to the Sunnis. The main themes investigated are khabar, ijma' and ijtihad and how they affected the systematization.

Doctorat en droit / info:eu-repo/semantics/nonPublished

Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2006. / The objective of this study is to examine the significance of postmodern insights regarding interpretation (especially the rejection of intentionalism) and subjectivity for contractual interpretation theory. In Part One (consisting of chapters 2-5), the leading postmodern insights on interpretation, individual autonomy, texts and intentionalism are discussed. This is done by analysing the present interpretive practice in four chapters: 1) Different theories of interpretation ranging from objectivism and natural law theories to post-structuralism are discussed in chapter 2. 2) In chapter 3 individual autonomy (as advocated by liberal theorists) is contrasted with communitarianism in order to problematize the notion of contracting parties as autonomous, self-regulating beings. By highlighting criticism against liberalism and communitarianism, and also by suggesting critical self-rule as an alternative, the assertion that contracting parties are autonomous and self-regulating is contested. 3) The process of textual definition is critically analysed with emphasis on the position reflected by the application of the parol-evidence rule and also post-structuralist ideas on the definition of texts in chapter 4. It is shown that textual definition consists of interpretation rather than identification. 4) The nature of intention and the process of intention “discovery” are analysed in chapter 5. Because of the centrality of intention in contractual practice, alternative theories on intention (and its role during interpretation) are postulated and it is suggested that post-structuralism can provide a critically reflective theory of intention. It is clear (from the critical analysis of intentionalism) that the way intention is presently approached is theoretically flawed. It is also apparent from the critique of liberal beliefs held regarding the nature of interpretation, subjectivity and the definition of texts that the theoretical foundations of these beliefs are fundamentally flawed. A critical re-imagination of contractual interpretation is necessary. In Part Two, questions about the justifiability of the present interpretive theories are posed. In chapter 6 the practical implications of a new theoretical basis for contractual interpretation are considered by examining the way various rules of interpretation are influenced by the new theoretical basis of interpretation. Three “rules” are examined: 1) The golden rule of interpretation is examined because of its reliance on intentionalist assumptions; 2) the parol-evidence rule is examined because of its relation to positivist assumptions about the definition of texts; 3) the relevance of bona fides as a substantial remedy during the interpretation of the contract is analysed to reveal assumptions about the nature of legal subjectivity in which the present consideration of the bona fides is grounded. It is shown that rules depend not on their content for operation, but rather on the assumptions upon which they are grounded. In short, we do not have to do away with our rules of contractual interpretation, but we have to re-evaluate how we apply those rules. The final part of this dissertation consists of a summary of the conclusions drawn during the course of this study.

published_or_final_version / Law / Master / Doctor of Legal Studies