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.

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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.

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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

This thesis examines Muhammad 'Abduh's ideas on Islamic Law, and the extent to which his writings influenced subsequent Muslim reformers in the sphere of law. The study focuses on 'Abduh's views on ijtihad and its application in modern society. / The principle of ijtihad, as practised by 'Abduh, was not dependent upon the opinions of previous scholars. A leading reformer of Islamic law (1849-1905), 'Abduh rejected taqlid which in nineteenth century Egypt was the rule of the day. Scholars in his day adhered to the books of their respective madhhabs to the extent of choosing to ignore the main sources of Islamic law, viz. the Qur'an and Hadith. For this reason, 'Abduh did not follow any particular madhhab in his ijtihad, but chose to be guided by whichever school of law he believed was best fit to deal with a particular contemporary problem. This practice has come to be known as talfiq. His use of it was the beginning of legal reform in Islamic law. / To facilitate legal reform, 'Abduh employed the Islamic legal principle of al-maslahah al-mursalah. This principle was an application of ijtihad which he invoked in order to deal with issues such as polygamy and bank interest. 'Abduh's fatwas were based on the sources of Islamic law, i.e. the Qur'an and the Hadith. Although his main concern was to rehabilitate the use of reason in law, he never strayed far from the traditional sources.

This thesis examines the views held by Muh&dotbelow;yi al-Din Ibn al-`Arabi on shari`ah, based for the most part on his magnum opus, al-Futuh&dotbelow;at al-Makkiyyah. It explores his attitude towards the shari`ah as practical religious law and his teachings concerning its sources and interpretation. Despite being misunderstood on account of his s&dotbelow;ufi background and his well-known criticism of the fuqaha' Ibn al-`Arabi's teaching, in fact, advocated a strict and consistent orientation to the shari`ah. This thesis shows how, on the one hand, his criticism of the jurists was due to their inability to achieve the high standards that he set for interpreting the law, and how, on the other, his s&dotbelow;ufi beliefs complemented, rather than weakened, the foundations of the shari`ah. It is clear that the principle underlying his approach to the shari`ah's application was his belief in its being a manifestation of God's mercy. He demonstrates this by pointing to the direct sources of God's law, accepting differences in legal opinion and seeking as much as possible the deeper spiritual and universal meaning of God's intentions in the law.