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Accompanying early seventeenth-century Europe were challenges related to the limitation of political power, civic participation in public affairs and the attainment of the public interest. Absolute rule and the absence of the individual as well as of the collective in political activity required urgent attention. The republican quest towards a much-needed rearrangement of the guardians and executors of political power as well as a more inclusive role to be played by the individual and the collective was accompanied by a view on the law as something beyond merely law enforced by the governing authorities. At the time, England and Scotland served as a scholarly hub where constitutionalism was vigorously addressed. The seventeenth-century Scottish theorist Samuel Rutherford contributed towards the formulation of a constitutional model not only suited to the context of his time but which also has overlapping value for contemporary theories on constitutionalism. Rutherford accomplishes this with special emphasis firstly on an understanding of the concept of republicanism, an understanding that was coupled with a rich legacy spanning many centuries and including Ancient Hebrew, Classical Greek and Roman, Patristic, Medieval, Canonist and Scholastic thinking. Secondly, Rutherford argues for the importance of the Rule of Law idea, together with the idea of the covenant. The encompassing framework within which a constitutional model was to be sought was against the background of the view that the law transcends the laws applied by the civil authorities, mere positivism and pragmatism. Rutherford reiterates the Ciceronian idea that the law is something more than Niccolá½¹ Machiavelli and Jean Bodinâs command of the ruler. Thirdly, Rutherfordâs constitutionalist thinking also includes valuable insights pertaining to the protection and maintenance of religion and of the conscience. This Rutherford does in reaction to the oppression of religion by the authorities and a more enlightened development in seventeenth-century Britain by which the emphasis was placed on the âinner lightâ within man, and which was supported by influential theorists such as Grotius, John Milton and John Locke. Emanating from this study are also enduring insights related to constitutionalism such as the importance of social contractarianism; the centrality and superiority of natural or moral law; the mutual relationship between rights and duties; every individualâs participation and duty towards a common good, which transcends mere self-interest; the rulerâs accountability primarily before the moral law; the office of the ruling power and its universalist and immutable normative substance; and activism against physical and psychological oppression.

The theories of truth and the marketplace of ideas, of democracy, and of human dignity underlie the constitutional protection of freedom of expression and simultaneously set boundaries with regard to such protection. The value of expression in terms of these theories firstly determines the scope of protection afforded to particular forms and incidences of expression. There exists an inherent tension in the appeal of each of the values and interests that is involved. Freedom of expression is central to the development of human personality, but may also harm inherent human dignity. The response to discriminatory expression may eventually promote equality. Free expression may be instrumental to the increase in knowledge and to the maintenance of democracy, but may also discourage target groups from participating in the marketing of ideas and in the democratic process. Secondly, the extent to which a discriminatory statement or expressive conduct serves the values and interests of knowledge, democracy and dignity is a relevant consideration in the context of proportionality analyses. It determines the weight to be assigned to the right to freedom of expression relative to other rights or interests that are involved. The Constitution, in terms of section 16(2)(c), categorically excludes, from constitutional protection, âadvocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harmâ. âHate speechâ on these grounds constitutes a proven threat to constitutional democracy. Expression of this nature should be criminalised. Circumstances may exist where âhate speechâ on other grounds poses a similar threat and should likewise be criminalised. Current atrocities in South Africa related to homosexuality and nationality constitute such circumstances. This approach is in accordance with South Africaâs obligations in terms of international agreements. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act categorically prohibits a narrowly defined field of expression, including expression under section 16(2)(c) of the Constitution. The prohibition does not criminalise expression and does not apply to bona fide engagement in expression stipulated in terms of section 16(1) of the Constitution. Within the limited field that remains, it prohibits expression related to any prohibited ground that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful, or to incite harm or promote or propagate hatred. The prohibition will be constitutional if it can be accepted that the expression will, in all given circumstances, constitute or promote unfair discrimination. Considerations in the South African context of the values that inform the protection as well as the restriction of expression, and of international obligations, lead to a positive conclusion in this respect. Of essential importance is the fact that the prohibition does not stifle debate about issues, even if statements relevant to the debate offend people with reference to their group identity. Section 6 of the Act prohibits unfair discrimination, subject to a fairness analysis. It is often not possible to determine whether the effect of discriminatory expression in the broad societal context is indeed detrimental. In the media context, the unequal balance of power in given circumstances reinforces the risk that inequality will be promoted. In the determination of fairness, care should be taken not to restrict expression without sufficient context-related indications of disadvantage. At the same time, the obligation to prohibit unfair discrimination, and the categorical restriction in terms of section 10, may not be disregarded. In the light of section 192 of the Constitution, these considerations are particularly significant with respect to broadcasting. The present broadcasting codes lack the necessary related guidelines and should be amended accordingly.

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Which uses of the power to criminalise are misuses of that power? When, in other words, is an exercise of the power to create a criminal offence an exercise of that power which cannot be morally justified? This thesis seeks to provide one part of the answer, by addressing an aspect of the question little discussed by criminal law theorists. Thus it seeks not classes of conduct which it is impermissible to criminalise, nor classes of objective which offence-creators cannot permissibly pursue. Rather the thesis addresses the distinct issue of means – of how criminal offences (are set up to) bring about their creators’ objectives. It asks which means of achieving objectives it is impermissible to employ or make available, and how the power to criminalise must be used to avoid their employment or availability. In answering these questions the thesis distinguishes a number of types of criminal offence, by reference to the means by which the tokens of each (are set up to) achieve objectives. The argument is that to create tokens of these types is often to misuse power, because it is often to employ, or make available, impermissible means. This judgment of impermissibility is a function of a number of principles of political morality, some of which are developed at length in the course of the thesis. No single principle (or set of principles) is presented as an absolute limit on the power to criminalise; but each is part of a complete picture of how that power can permissibly be used, and contributes to vindicating the thesis defended within these pages. That thesis, to repeat, is that some uses of criminalisation are no better than misuses, on account of the means by which the resulting offences (are set up to) achieve their creators’ ends.

Thesis (Ph. D.)--UCLA, 2009. / Vita. Description based on print version record. Includes bibliographical references (leaves 149-151).

Thesis (Ph. D.)--Florida State University, 2006. / Advisor: Alfred Mele, Florida State University, College of Arts and Sciences, Dept. of Philosophy. Title and description from dissertation home page (viewed Sept. 20, 2006). Document formatted into pages; contains vii, 166 pages. Includes bibliographical references.

This thesis is about the legal and moral status of abortion. It is primarily concerned with the metaphysical status of the foetus, with particular attention to the question whether the foetus is properly characterised as a person in the philosophical sense. The argument of the thesis proceeds in two parts. The first part surveys certain lines of argument to the effect that the question of prenatal personhood is immaterial to the moral and legal permissibility of abortion. Against these claims, it argues that the personhood status of the foetus is indeed central to the moral and legal appraisal of abortion practice. The second part focuses on the metaphysical question in its own right. The thesis proposes a theoretical underpinning for the ‘gradualist’ view of human life before birth, according to which the human foetus is a fuller instantiation of a person the more biologically developed it is. It sets out to defend the kernel of the gradualist thesis against a cluster of criticisms, commonly advanced by those who endorse the belief that the personhood of human beings begins at conception. One notable challenge of this sort, which the thesis aims to address, asserts that any graduated account of personhood before birth is logically inconsistent with basic human equality. Finally, the thesis considers a few practical implications for the legal regulation of abortion stemming from the gradualist thesis, and the rule of law standards by which a regulatory framework must abide.

Thesis (Ph. D.)--Ohio State University, 2006. / Title from first page of PDF file. Includes bibliographical references (p. 243-249).

According to retributivism, what justifies punishment is a wrongdoer's desert. Critics argue that retributivists fail to provide sufficient justification for punishment. Herbert Morris offers the type of justification critics demand, providing an account of punishment that: 1) values autonomy, and 2) appeals to the principle of fairness. Punishment, in this account, restores equilibrium of benefits and burdens with respect to autonomy. Since punishment largely ignores the autonomy of the victim, however, punishment alone seems unable to ensure justice. In order to provide a more complete account of justice, I contend that one must be committed to retributivism and restoration. Indeed, restoration of the victim’s autonomy may be understood to be part of a completed deployment of the rationale for punishment.