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.

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.

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.

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.

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.

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.

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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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.