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AFRICAN PHILOSOPHICAL VALUES AND CONSTITUTIONALISM: A FEMINIST PERSPECTIVE ON UBUNTU AS A CONSTITUTIONAL VALUEKeevy, Ilze 27 March 2009 (has links)
Since 1995 the South African Constitutional Court has contended that it would no
longer entertain only Western thought and legal thinking but also African law and
legal thinking as the values of all sections of society must be taken into account
in South Africaâs open and democratic society. The Court acknowledged ubuntu
as part of South Africaâs jurisprudence and fused Western and African
jurisprudence into a new South African ârainbowâ jurisprudence. But beneath this
miraculous fusion lies a volatile philosophical relationship of two ancient
patriarchal philosophies which resulted in the erosion of African values and
innumerable injustices against the African Other.
Like Greek philosophy, Western philosophy has always been plagued by
philosophical prejudice towards women, slaves and barbarians. Racism,
however, only entered the equation of Western philosophy when the West had to
justify their trade in twenty million African men, women and children as African
chattel slaves in the seventeenth century. This crime against humanity was
justified in the name of Christianity by philosophers and clergy alike. Whilst the
Enlightenment philosophers proclaimed human equality and individual liberties in
the eighteenth century they also fuelled a ânew racismâ which stereotyped
Africans as inferior and subhuman. Not only did the Otherness of Africans result
in racial segregation in the United States of America in 1883, it also legitimised
Western colonisation of the âDark Continentâ. Under the banner of the cross,
Western colonial powers embarked on their Christian civilising mission of the
African continent: destroying African trade patterns, ancestral lands, self
government, tribal systems, African law, cultures, belief systems and values. It
was, however, not these factors, the colonial genocides in Congo Free State and
German South-West Africa or Apartheid South Africaâs crime against humanity
which resulted in the lingering inferiority complex Africans experience on the
African continent, but the most destructive weapon wielded by the West: the
âcultural bombâ, which eroded African values. The publication of Templeâs Bantu Philosophy in 1945 did not only bring proof
that traditional Africans have a collective philosophy but also sparked a heated
international and national philosophical debate. In an attempt to structure the
discourse on African philosophy Oruka introduced his six trends in African
philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the
collective philosophy, or ubuntu, of either an African community or Africa as a
whole; sage philosophy illustrates that rational thought prevails in philosophical
sages; political philosophy contains the liberation philosophies of African leaders
who envisaged the rekindling of eroded traditional African values; Negritude is
described as the âsum total of African valuesâ; professional African philosophy is
African philosophy in the strict sense produced by African philosophers; the
hermeneutical approach attempts to reconstruct African reality in post-colonial
Africa; and the literary trend illustrates the devastating effect of Western
subjugation of the African Other. The debate on African philosophy illustrates that
there is no homogenous way of African thinking and that professional African
philosophers, modern Africans, African theologians and African feminists reject
traditional African modes of thought.
The Constitutional Court claims ubuntu values are in line with the Constitution in
general and the Bill of Rights in particular but this study brings evidence to the
contrary. Not only are ubuntu values represented in traditional Africaâs closed,
strong communitarian societies unique and not universal, but ubuntu âmoral
philosophyâ proves to be a religious philosophy. Whilst sec. 15(1) of the
Constitution guarantees freedom of religion one has to question why the Court
entertains a religious philosophy such as ubuntu in its deliberations and not other
religious philosophies.
The Constitutional Court, African Renaissance, the Moral Regeneration
Movement, the Ubuntu Pledge, the Heartlines Project and other programmes
throughout South Africa aspire to revive ubuntuâs eroded traditional African
values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not
comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with
international or regional human rights and gender mechanisms nor âthe
Constitution in general and the Bill of Rights in particularâ.
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Å KRITIESE ANALISE VAN DIE BEGRIP âADMINISTRATIEWE GEREGTIGHEIDâ IN DIE GRONDWET, MET BESONDERE VERWYSING NA DIE KONKRETISERING DAARVAN IN DIE WET OP DIE BEVORDERING VAN ADMINISTRATIEWE GEREGTIGHEID, 3 VAN 2000Maré, Tjaart Jurgens 08 April 2009 (has links)
South Africa has an extensive heterogeneous population where drastic and far-reaching differences
regarding community values and acceptability norms exist. These are emphasised by the serious
imbalances regarding socio-economic circumstances.
The late establishment of a democracy in South Africa was preceded by a traumatic period of intense
suffering among a large section of the population. One great advantage of South Africa becoming a
democracy at such a late stage is the fact that the country could learn from the political and
constitutional successes and failures of other countries. This aided the establishment of a new order
to ensure justice and stability for all South Africans.
The final Constitution was developed after five years of intense negotiations. To address imbalances
of the past, the Legislator deemed it necessary to write the concept administrative justice into Section
33 of the Constitution. This is currently a fundamental human right which is a right every citizen is
entitled to.
The concept administrative justice contained in Section 33 of the Constitution and its concretisation in
the Promotion of Administrative Justice Act are certainly not perfect in all respects, but, in spite of this,
is a significant effort on the part of the Legislator to create a basis for peace, justice, political tolerance
and prosperity in South Africa. The foundation was built according to a concept of administrative
justice which can develop further.
In this thesis the constitutional embodiment of administrative justice is analysed through various
approaches. A critical analysis is made with specific reference to case law as well as legislation. The
emphasis is placed on the review aspects as mentioned in the Promotion of Administrative Justice
Act, and developmental aspects of the concept will be investigated further.
Attention is paid to the history preceding the current concept of justice. This will reveal both the
essence and the problems surrounding this concept that has been around for years. A closer
investigation of the practical application and influence of administrative justice on the private law fields,
more specifically, the law of delict and contractual law will shed further light on the concept of justice.
The concept administrative justice does not only belong to the state-subject relationship, i.e. vertical
application of understanding, but also has an impact on the relationships of the private individual or
institutions â the so-called horizontal application.
The embodiment of the concept administrative justice in legislation caused a drastic change in the
approach of the courts to the application of justice. The application of the courts of legislation, such as
the "ouster clauses", and the disadvantage it has for the individual now belongs to the past. The focus of this thesis falls on key elements pertaining to the concept of justice, namely, lawfulness,
reasonableness and procedural equity.
However, there is much cause for concern of state institutions and different bodies being excluded in
the definition of administrative action in the Promotion of Administrative Justice Act. It has the
potential to become a powerful barrier in the future development of administrative justice. It is clear
that all administrative action should firstly be tested to the definition before concentrating on its
different review grounds. The definition of an administrative action is compiled from three different
definitions and is, as such, interpreted with difficulty by the general civil servant in his/her daily action
in the workplace.
A further development of the above-mentioned act and the provision of a guideline, such as the Code
of Good Conduct and the implementation of courts specialising in administrative law, will be welcomed
to help further establish and develop the concept administrative justice.
In essence, this thesis attempts to critically analyse the concept administrative justice in Section 33 of
the Constitution with specific reference in its concretisation in the Promotion of Administrative Justice
Act.
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TRANSITIONAL JUSTICE: FRAMING A MODEL FOR ERITREAMekonnen, Daniel Rezene 08 April 2009 (has links)
Since its independence in 1991, Eritrea has seen egregious violations of human rights and
humanitarian law. This study examines the perpetration of international crimes in Eritrea
between 24 May 1991 and 30 May 2008. A factual and legal analysis of the major
incidents and events that took place during the above period of time reveals that crimes
against humanity, war crimes and crimes of aggression have been perpetrated in Eritrea
in an alarming manner affecting hundreds of thousands of people. In most cases, human
rights violations have been perpetrated under a clear and premeditated government plan
of persecution and repression of political dissent and certain religious convictions.
Although some of the incidents discussed in this work appear to be sporadic events
occurring only in a specified time and with a specific objective, most of the violations
portray a clear, coherent, systematic and comprehensive government policy of repression.
The widespread and systematic violation of human rights in Eritrea constitutes crimes
against humanity as defined by the relevant provisions of international law. There are
also violations perpetrated in the context of the 1996 Eritrea-Yemen border conflict, the
1998-2000 Eritrea-Ethiopia border conflict, as well as other incidents of internal and
international armed conflicts. These cases portray categories of crimes perpetrated with
political motive of a cross-country nature. It is concluded that a certain group of highranking
government officials can be tentatively identified as the most responsible
perpetrators and accordingly they bear individual criminal responsibility for serious
violations of international law since 1991.
To end the culture of impunity, this study proposes that international criminal justice,
administered by the International Criminal Court, foreign municipal courts, or national or
mixed tribunals, should be instituted. However, in the event of a negotiated and peaceful
political transition, conditional amnesty administered by a democratically constituted
truth and reconciliation commission is also regarded as an acceptable option.
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HUMANITY AND THE PROTECTION OF THE UNBORN: A JURISPRUDENTIAL RATIONALE FOR THE FURTHERANCE OF THE ANTHROPOLOGICAL PARADIGM OF INTERNATIONAL LAWMyburgh, Georgia A 08 April 2009 (has links)
This thesis is primarily concerned with the legal status of the unborn in international law. It
investigates the lack of jurisprudence concerning the legal status of the unborn in this area of
law and contends that such a lacuna is unacceptable. The unacceptability of this lack of
discourse is highlighted in light of the concept of rationality; and rationality is presented as
the best alternative method to deal with the legal status of the unborn, based on various
justifications showing that the current method of legal discourse is not only devoid of
rationality but inadequate to deal with this problem. Rational procedural and substantive
attempts are then promoted to advance the legal status of the unborn in international law.
Here the thesis emphasises the importance of taking into account requirements of humanity,
sensitivity to animals and fairness, and continues to investigate the irrationality of abortion
jurisprudence by arguing that the sole use of human rights and more specifically, the right to
life and womenâs rights, as determining the legal status of the unborn is part of the problem.
Rationality requires an inclusive and sensitive approach and therefore, the sole use of
concepts such as human rights, to the exclusion of science, anthropology, humanity and
international justice, amongst others, are argued to be irrational. Scientific and
anthropological consideration is also very important, not only to present an inclusive
approach, but because these disciplines present us with some of the few convincing facts that
can be used to aid philosophers when dealing with a topic where assumption and argument,
rather than facts, are ample. However, this thesis does not pretend that a final or absolute
solution on the legal status of the unborn is possible as cultural and ethical relativism as well
as ideological affiliations present a problem to obtaining a universal rational outcome on the
legal status of the unborn. However, it is stated that the possibility of a universal rational
outcome, which represents an improvement on the contemporary situation, does exist and
therefore, it would be irrational if such possibility were not attempted on rational grounds by
way of procedure and substance, taking into account requirements of humanity.
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ân Kritiese ondersoek na societas, natuurreg en menseregte in die post- Thomistiese regsleer van Antonio Rosmini (1797-1855).Swartz, Nico Patrick 19 June 2008 (has links)
Societas
According to Rosmini, society is not a man-made entity or creation, but rather a theistic
institution, since it originates from the will of God. Accordingly, human society is founded
in the order of Godâs Creation. The freedom of the form of human society is realised in a
variety of differentiated social forms, namely civil societas, domestic societas and
ecclesiastical societas. Rosmini states that social forms are not reducable to simply civil
societas, but include human social togetherness. Neither can one social form derive
authority from the next. Unlike Thomas Aquinas who models the principles subsidiarity on
the principles of hierarchy, autonomy and intervention, Rosmini emphasises the
independence of each social form and in doing so he achieves a well-rounded doctrine of
human society and social forms. He is of the opinion that the various social forms are
closely bound, which means that a human society cannot be discussed without taking
domestic societas, ecclesiastical societas and civil societas into account. Each social form
forms part of an independent freedom and fulfils a responsibility before God. Rosmini
endorses the Thomistic subsidiary principle to the extent that civil societas merely lends
assistance and support to, for instance, domestic societas, should the latter community be
unable to preserve its interests. On this basis, civil societas may not interfere with the
interests of the other two forms.
According to Rosmini, every society has a moral substructure which serves as a basis for
the rights and obligations necessary for the maintenance of natural law. Social justice is
expressed in society by means of the principles of goodwill. Rosmini relates to classical
viewpoints where societies are bound to the fundamental moral principles of the central
commandment of love, since all human rights are based on fundamental duty. On these
grounds, Rosmini presents a platform for cultural discourse and ethical involvement across
ideological boundaries insomuch as he is of the opinion that society as a whole stands
beneath the general revelation of God.
Natural law
In Rosminiâs explicit stance on natural law he maintains a primarily Thomistic opinion which
originates from his perspective of Divine Providence. Natural law is a manifestation of
practical rationality. For example, to come to the knowledge of human rights, human nature
and reasoning must be used as guidelines. As such, Rosmini upholds a paradigmatic
perspective of natural law where there is a close correlation between natural law and the
maintenance of justice in human society. Natural law and justice culminate in the
relationship between rights and duties. Rosmini holds that natural law and justice are built
upon the maintenance of important moral duties. On this basis, moral values have
significant constitutional implications which give expression to the universal principle of
love. In this way, natural law forms the foundation of human rights.
Human Rights
Rosminiâs point of view regarding human rights rests principally on his natural
jurisprudence. His focus on justice in human society supports his standpoint on human
rights, the jurisprudence of which originates from the Scriptural principle of love towards
God and oneâs neighbour. On this basis, Rosminiâs stance regarding human rights is
closely linked to his theocentric idea of manâs personal relationship with God. His human
rights teachings embrace both individual and social rights, the latter being reflected in
social, ecclesiastical and domestic societas. Rosmini holds that social justice can only be
ensured by the balanced maintenance of all natural rights on both individual and social
levels. He is of the opinion that the natural rights of individuals in social entities originate
most deeply in the human cry to God. Accordingly, Rosminiâs human rights teachings can
be illustrated by his points of view regarding human dignity.
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SAMUEL RUTHERFORD ON LAW AND COVENANT : IMPACT OF THEOLOGICO-POLITICAL FEDERALISM ON CONSTITUTIONAL THEORYDe Freitas, Shaun A 22 August 2005 (has links)
ABSTRACT
This thesis primarily concerns the constitutional theory postulated by the 17th-century reformed Scottish theologian and political theorist, Samuel Rutherford. In this regard the angle of approach is done against the setting of the political and constitutional concepts arising from theologico-political federalism formulated by the federalists � Heinrich Bullinger, Philippe DuPlessis-Mornay and Johannes Althusius. Included among these concepts are: the law � its content and status, the separation of powers principle, the office of magistracy, the civil and religious duties of the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and active resistance to tyranny. In addition, theologico-political federalism entails in essence the idea of the biblical covenant, which concerns the biblically confirmed bilateral, mutual and conditional relationship between God and the Christian Community, as well as the political covenant between government and the governed within such a community. It was especially the relevance of the Divine law (summed up in piety and civility) as condition of the covenant that was emphasised by the federalists, and which gave a unique meaning to the concept of sovereignty as branch of the primary and absolute holder of sovereignty, namely God. It was to be from this basis that the content of the separation of powers principle, the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and resistance to tyranny, were to be determined and given perspective. This thesis not only confirms that Rutherford and the mentioned federalists had much in common regarding political and constitutional content, but also and more specifically, that Rutherford�s view on the biblical covenant and the law as foundation of politics and constitutionality was similar to those of the federalists. It is also confirmed that theologico-political federalism rates among one of the most valuable and insightful formulations emanating from reformed constitutional thought in general. Theologico-political federalism, although not the only stream of thought to be applauded for its contribution to Western constitutional theory in the 16th and 17th centuries, contributed much to such theory. Amidst the development of secular constitutional theory during the period of the Reformation, the federalists provided a model of how the constitutional dispensation of the Christian Community should be structured, and as point of departure, political society�s status as a party to the covenant with God was postulated, this covenant relationship acting as the fundamental framework for political content and activity � albeit within the absolute grace and predestination of God. The personal relationship between God and the political community as not only an effective constitutional model, but also a biblically qualified and practical constitutional theory was proposed by the federalists. It will also be confirmed that not only did the federalists provide a well researched constitutional model to be applied to the ideal Christian Community, but also assisted in championing constitutional values such as liberty, equality, the rule of law, limited governance, and democracy. In conclusion, may it be said that it can be deduced from this thesis that Rutherford�s participation in the continuation and development of the legacy of theologico-political federalism was substantial, and consequently it is hoped that his already-respected contribution to reformed constitutional theory is duly enriched.
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DIE GRONDWETLIKHEID VAN DIE VASSTELLING VAN MAKSIMUM WERKURE INGEVOLGE DIE WET OP BASIESE DIENSVOORWAARDESMarais, Maria Elizabeth 16 September 2010 (has links)
The purpose of the Basic Conditions of Employment Act is to advance economic
development and social justice by fulfilling the primary objects of the Act which are
to give effect to and regulate the right to fair labour practices conferred by section
23(1) of the Constitution, and to comply with obligations incurred by the Republic as
a member state of the International Labour Organisation. Section 9(1) read with
section 10(1) of the Act has the effect that employees covered by the sections are not
allowed to work for the same employer for more than 55 hours per week. This does
not prevent employees from working longer hours in total in terms of employment
agreements with different employers, an option that entails certain disadvantages.
The study investigates the constitutionality of the limitation of the opportunity to
work for longer hours for the same employer. Reference to comparative law focuses
on the legal position in America, Germany and Canada. Throughout the study the
notion that work involves more than a trade agreement in terms of which labour is
sold, is a basic theme.
Constitutional perspectives on the concepts human dignity and freedom, with
reference to freedom of the person as well as freedom of contract, are discussed. A
direct relationship between work and employment, and the development of
personality and human dignity, is indicated. The discussion leads to a conclusion that
the relevant articles limit the rights to human dignity and freedom of the person,
including freedom of contract, of the employees concerned.
Human dignity is also discussed within the context of the entrenchment of socioeconomic
rights. The relevant provisions are substantively assessed in terms of the
reasonableness standard set by the Constitution. The conclusion is reached that the
provisions cannot be accounted for on this basis. A third fundamental constitutional principle, equality, is considered. A substantive
assessment in terms of the applicable test established in Harksen v Lane NO reveals
that the provisions have the effect of reinforcing the disadvantaged position, owing to
past discrimination, of black people and women with regard to job opportunities,
which supports a conclusion that the relevant provisions constitute indirect unfair
discrimination based on race, gender and socio-economic status.
It furthermore appears that, although the provisions pass the rationality test that
applies to provisions that regulate trade, occupation or profession, the fact that the
regulating effect of the provisions violates fundamental constitutional rights,
constitutes a violation of the right to freedom of trade, occupation or profession,
protected by section 22 of the Constitution.
The study also focuses on section 23(1) of the Constitution that determines that
everyone has a right to fair labour practices, as well as on section 23(5) that confers a
right to engage in collective bargaining. It appears that the provisions have a negative
effect as far as work security is concerned, and therefore are unfair. The position with
regard to section 23(5) is that the bargaining options of union members and employers
are limited by the determination of minimum standards.
The study concludes with an application of the section 36 test for the justification of
limitations of constitutional rights. The adverse effects and the objects of the relevant
provisions, taking into account the extent to which the provisions effectively promote
the objects, are weighed up proportionally. Less restrictive means by which the
objects can be promoted, are discussed. A conclusion is reached that the infringement
of the constitutional rights of employees who are adversely affected by the relevant
provisions, cannot be justified.
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INTERNATIONAL HUMANITARIAN LAW AGAINST THE BACKGROUND OF CUSTOM AND HUMANITYNell, Albert 04 October 2011 (has links)
International humanitarian law (IHL) strives to improve and protect human dignity during the most
tumultuous periods known to mankind. As such, every endeavour to strengthen and enhance the
functioning of this branch of law must be pursued and supported. The ICRC Study on Customary
International Humanitarian Law (CIHL) was precisely such an endeavour. This Study found that
very many IHL rules have been subsumed by CIHL, thus applying irrespective of treaty ratification,
and that the rules applicable in international armed conflicts were converging with those applicable
in non-international armed conflicts. However, this Study and its attendant literature have refrained
from returning to a theoretical reconsideration of the normative foundation of IHL and, by
extension, CIHL. The present dissertation aims to fill this theoretical lacuna and, in the process, to
re-establish natural law principles and, in particular, considerations of humanity, as the raison d'être
of and motivating factor for IHL. Accordingly, the dissertation pursues the natural law principle of
humanity through its practical and theoretical development, before investigating its possible
application through the Martens clause, norms of ius cogens and obligations erga omnes. Since the
objective is to elucidate the essential foundation of IHL to better comprehend its customary source,
the interconnectedness between IHL, CIHL and natural law principles, like humanity, is
emphasised. In the process, the dissertation also enters the debate regarding the necessary
methodological approach for CIHL ascertainment and postulates a normative, transcendental
approach in this regard. Subsequently, the ICRC Study on CIHL is evaluated through the natural
law paradigm established in the dissertation, which seemingly has not yet occurred in international
legal literature.
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THE CONSTITUTIONAL FRAMEWORK FOR BROAD-BASED BLACK ECONOMIC EMPOWERMENTJanse van Rensburg, Adri 04 October 2011 (has links)
The negative impact of the apartheid regimeâs policies on the social, political and
economic conditions of the majority of the population is well established and persists into
the present day South Africa. The South African Constitution acknowledges this
negative legacy, but also contains a vision of the type of society it envisages for South
Africa. The inclusion of values, principles and rights on which this new society is based
does not, by virtue of its design, erase all the consequences of the previous discriminatory
policies. Simply removing discriminatory legislation and practices cannot alleviate the
injustice and poverty that resulted from 40 years of oppressive legislation and
government policies.
Implicit in this constitutional vision are remedial and restitutionary measures for
the achievement of the constitutional goal of a free, prosperous and egalitarian South
African society. Illustrative of this fundamental commitment, several constitutional
provisions, directly or indirectly, sanction remedial measures to address remaining
injustices. Different types of remedial measures are envisaged, namely affirmative action
programmes, a government policy of preferential procurement, and Black Economic
Empowerment. The constitutional imperative for policy tools to transform the South
African economy in particular, by means of black economic empowerment is therefore
clear.
In this study the legacy of apartheid, with specific reference to the economic aspect
thereof, is researched. From this it becomes clear that transformation in the way
economic resources are divided is necessary. The enactment of specific legislation
dealing with the subject resulted from the recognition of the need for regulatory
intervention to give momentum to the process of reform. The B-BBEE Act and its Codes
of Good Practice provide the foundation for the drafting and implementing of the BBBEE
programme. The B-BBEE programmeâs operation is analysed in order to draw
conclusions on the constitutionality thereof. Within the framework of the Constitution, several provisions empower the state to
adopt remedial measures to correct systemic injustice. The most apparent of these is the
right to equality in section 9. It provides that everyone is equal before the law and has
the right to equal protection and benefit of the law and entrenches the right not to be
discriminated against, either directly or indirectly, on a number of specifically
enumerated and analogous grounds. Section 9(2) makes specific provision for remedial
measures, not as an exception to the equality guarantee, but rather an extension thereof â
a restitutionary equality conception. In the Preamble to the B-BBEE Act it is stated that
one of the objectives with the Act is to âpromote the achievement of the constitutional
right to equalityâ. The right to equality therefore occupies a central place in any
constitutional discussion on the B-BBEE programme. The position on the constitutional
validity of affirmative action measures, and therefore also the B-BBEE programme, is
currently governed by the Constitutional Courtâs decision in Minister of Finance v Van
Heerden, where the Court formulated three elements for a valid section 9(2) measure.
The Courtâs approach in the Van Heerden case was therefore analysed in order to make a
determination of the constitutionality of black economic empowerment measures.
However, in order to place B-BBEE in its constitutional context the totality of
constitutional provisions which touch on the programme, that is both mandating and
limiting provisions, was considered.
The practical operation of the programme was analysed and that information was
used to draw conclusions on the constitutionality of the programme when placed in the
framework provided by the relevant constitutional provisions. Recommendations were
also offered which could address some of the problematic aspects of the programme
identified.
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âDISABLED PEOPLEâ AND THE SEARCH FOR EQUALITY IN THE WORKPLACE: AN APPRAISAL OF EQUALITY MODELS FROM A COMPARATIVE PERSPECTIVENgwena, Charles Gideon 04 October 2011 (has links)
Disabled people constitute a historically disadvantaged and marginalized group that
experiences discrimination in the workplace among other socio-economic sectors. In
this thesis, my focus is on searching for an inclusive type of equality that could
inform the interpretation and application the equality clause in the South African
Constitution. My aim is neither to arrive at a mathematically constructed abstract
type of equality, nor to produce a blueprint of equality that puts finality on the
debate on equality. Rather, it is to engage with equality discursively with a view to
contributing towards an ongoing development of a juridical as well as philosophical
path for constructing the normative architecture of a type of equality that is more
responsive to the equality needs of disabled people. The spotlight is on developing a
type of equality that is normatively inclusive and transformative as to be capable of
sufficiently meeting the quest for political, and more crucially, economic recognition
of disabled people.
I use a repertoire of analytical techniques to explore and appraise the inclusiveness
and responsiveness of contemporary approaches to equality. At a more general
level, the discourse employs comparative analysis. However, whilst comparative
analysis in this thesis includes comparing and contrasting the equality jurisprudence
of different jurisdictions, and in this instance, comparing and contrasting South
Africa with Canada and the United States, it is, nonetheless, a relatively small part of
my comparative discourse. It is not the primary sense in which the thesis develops a
comparative discourse. The greater part of my discourse employs a comparative
approach to mean comparing and contrasting the underpinning moral compasses of
formal equality and substantive equality with a view to revealing the capacities of
each type of equality to be responsive to the equality aspirations of disabled people.
Over and above comparative analysis, I use, in the main, the historicity of apartheid,
the social model of disability, and feminist theory and practices as analytical
techniques for interrogating the responsiveness of notions of formal equality and
substantive equality. From insights drawn mainly from the social model of disability
and feminism, I construct disability method as a syncretic and legal method for
interrogating the normative sufficiency of equality laws and praxis. Disability
method is the studyâs principal interpretive method for ensuring that the appraisal
of pertinent laws, policies or practices is always conscious of the status of disabled
people as a disadvantaged and vulnerable historical community, and the imperative
of transforming erstwhile culturally, and even more crucially, economically
oppressive norms.
I contend throughout the study that law does not carry inherently neutral values
that, as a matter of course, allow for searching for alternative paradigms of equality.
Ultimately, it is the social construction of disability that holds the key to
interrogating equality norms in a serious manner and not merely restating what the
legislature and the judiciary proclaim about disability and equality. In this sense, by
way of clarifying the methodological and philosophical orientation of this study, it
bears stressing that the analytical approach that it adopts differs markedly from
conventional legal discourses that only use an âinternal critiqueâ, as it were, to critically evaluate legal norms by using norms derived from law in order to
determine whether the law is living up to the standards which it professes to hold
and whether the justice promised by those standards is being dispensed evenly
across all social groups. Though âinternal critiqueâ is part of how some of the
arguments in this study are framed, it is only a small part. The greater part of my
equality discourse derives from external critique. It derives from appraising the law
using ethical or social values that are external to the law but which I argue ought to
shape the law.
Using disability method, and drawing from the thesis of a heterogeneous civic
public sphere, I situate the normative ethical framework for substantive equality
within a type of participatory democracy in which equality is constructed
dialogically and not unilaterally or hegemonically. I treat equality as a component of
democratic ethics that result not from a given centre but from an egalitarian dialogue
between disabled people and enabled people. I argue for inclusive heterogeneous
equality as the operative equality template for eradicating disablism in an imagined
participatory democracy in which respect for pluralism and the eradication of
dominance and subordination among social groups are core foundational ethics.
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