Alors que la protection effective des droits et libertés est souvent conçue comme dépendante de leur garantie juridictionnelle, cette dernière implique une transformation de l'équilibre qui s'établit entre le juge, non élu, et le législateur, représentant du peuple souverain. À travers une analyse pratique des effets du travail juridictionnel sur l'activité législative, tels qu'ils se sont déployés aux États-Unis, au Canada et au Royaume-Uni sur les quinze dernières années, il est possible d'évaluer les conséquences de la consécration de certains droits dans un catalogue opposable par le juge au législateur, en matière d'équilibre entre les pouvoirs législatif et juridictionnel. Si ces trois systèmes, aux traditions constitutionnelles éloignées, disposent chacun de mécanismes spécifiques pour assurer le respect des droits consacrés, plusieurs points de convergence peuvent être mis en lumière. Leur étude sera alors l'occasion d'appréhender dans une perspective renouvelée l'équilibre qui s'établit entre les deux institutions. Elle fera progressivement apparaitre l'idée d'une véritable collaboration du législateur et du juge en matière de protection des droits et libertés dans les démocraties contemporaines / Effective human rights protection is often perceived as being dependent upon their judicial enforcement. However, such a mechanism transforms the relationship between unelected judges and electorally accountable legislators. Through an empirical analysis of the effects of judicial review on legislation and legislative decision-making, in the United States, Canada and the United Kingdom, during the last fifteen years, the actual impact of the entrenchment of human rights in a written bill of rights will be assessed and evaluated. Even though these three countries have different processes to guarantee the respect of entrenched rights, and despite their long-settled and contrasting traditions, their systems are not as conflicting as it is often thought. This study finally leads to a better understanding of the relationship between judges and legislators in contemporary democracies and underlines the idea of a genuine collaboration of powers

Historically South African law has been dominated by Western law. Indigenous law and the jural postulates which underpin that law are insufficiently accommodated in the South African legal order. The Western component of the official legal system is regarded as institutionally and politically superior and is as such perceived to be the dominant system. In contrast indigenous law is regarded as a servient system. The monopolistic control of the legal order by the Western section of the population resulted in the creation of a legal order primarily suited to its own needs. The fact that few of the values of indigenous law are reflected in the official legal system and the fact that there is a measure of conflict and tension between the fundamental precepts of indigenous law and those of Western law, gave rise to a crisis of legitimacy of the official legal system in South Africa. This in turn lead to the emergence of unofficial alternative structures for the administration of justice. Indigenous law should receive full recognition and enjoy the same status as Western law. To accomplish this, legislative measures which entrench a distorted indigenous law, limit the application of indigenous law, or affect its status in the South African legal order, should be revoked. Even in a multicultural society such as that of South Africa, there is a common nucleus of core values that are shared by the whole society. But different cultures have different conceptions of these basic values and their role in legal, political and social ordering. The Bill of Rights should give due recognition to the postulates which underscore both Western and indigenous law. This should be done by providing that the values the Bill entrenches, must be interpreted in their proper cultural perspective where circumstances so demand. But this will be possible only if the level of knowledge of indigenous law and its fundamental precepts is drastically improved. / LL.D

Due to the fact that Scripture is the authoritative Word of God (Belgic Confession. Article 5), the infallible written Word of God. is and stays the basis for Christian ethics. Scripture is not just another single source for Christian ethics among other sources, but it is the decisive source among all other sources. The question then arises - how is it possible in the ever-changing life situation of the modem day context of society? In an ever increasing secularized society places the Christian life and also the Christian ethics under more pressure. The acceptance of the authority of Scripture is therefore indispensable for Christian ethics. Scripture does however not present a text as an absolute answer for every possible or similar ethical problem. The deep-seated principles of Scripture must be exposed. From these principles norms should be derived that is applicable to the modem problem. The problem statement that follows from this culminates as the following: Can a thematic analysis of the Biblical dogma present a fundamental working foundation for Christian ethics in modem day society and serve as a corrective for the problematic approaches of a biblicistic as well as an over critical view of Scripture for the basis of ethics? The central theoretical argument of the study is the following: A thematic analysis of the Biblical dogma can indeed present a fundamental, working foundation for Christian ethics in modem day society and can serve as a corrective for the problematic approaches of a biblicistic as well as an over critical view of Scripture for the basis of ethics. In the second chapter the definitions of what could be defined as Christian ethical perspectives and principles is examined. In other words, the purpose of the chapter is to examine and to give a broad overview of the understanding of ethics, morality, morals etc. The qualified deontological approach is chosen due to the fact that normative approach with its focus on Scripture as authoritative therein plays a big role. The third chapter focuses on which view of Scripture and use of Scripture is normally applied in Reformed ethics in the use or interpretation of Scripture. Special attention is given to the authority of Scripture, view of Scripture and an attempt is made to convey the hermeneutical points of departure (axioms) in order to derive an intra-biblical use of Scripture. The chapter comes to the conclusion that even though the Christian ethicist does have in theory at his disposal a biblical-founded hermeneutical model it does not safeguard him against a faulty use or interpretation of Scripture in practice in the fourth chapter the present-day Scriptural principles that serves as basis and cadre for the interpretation of Scripture in light of the answering of Christian ethical questions is examined. In light of the present-day situation seems that although there is a sound hermeneutical axiom that serves as filters in the interpretation of Scripture in the reformed ethics, in practice either a biblicistic or a Criticism of Scripture approach to Scripture is chosen. The approaches of the fundamentalistic/biblicistic and Criticism of Scripture is examined and m e s to the conclusion that both, in their own way, does bring the authority and the message of Scripture in disrepute. In the event of the fundamentalistic and biblicistic approach the divine inspiration character of Scripture is overemphasized and all Scriptural Utterances is treated on the same level to such an instance that everything is sanctioned. In the event of the Criticism of Scripture the human fallible character is again overemphasized to the extent that the normative authority of Scripture for Christian ethics is not taken into account . The chapter comes to the conclusion mat a "third way” must be examined to circumvent the many pitfalls of either a fundamentalistic/biblicistic of Criticism of Scripture in the interpretation of Scripture in light of a modem day ethical problem. In the fifth chapter an adjudication and evaluation of the quality of the use or Interpretation of Scripture in light of capital punishment within the biblical view of a right to life is given as a representative of modem day ethical problems. In light of the principles given in Chapter 3 and 4 it is shown that Scripture is most often misused despite fair hermeneutical principles Only to reflect the ethicist own preconceived ideas. The last chapter indicates an approach that might possibly serve as an alternative/valid use or interpretation of Scripture in reformed ethics other than a typical biblicistic/fundamentalistic or Criticism of Scripture approach. The chapter draws to the conclusion that the contextual-paradigmatic approach is at this time the only capable approach of acknowledging the proper interpretation of Scripture to shed some light on the ethical problems of modem day society, without stepping into the boundaries of either a biblicistic/fundamentalistic of Criticism of Scripture interpretation of Scripture. The contextual-paradigmatic approach succeeds in preventing the ethicist to misinterpret Biblical texts that seems to be of importance to the debate of capital punishment and to make a scientific contribution lo important debates in South Africa today, especially those related to the interpretation of the Bible and its use in the development of South Africa. In this way an attempt is made to contribute towards and to provide guidelines for a healthy and responsible society and for the functioning of Christians within the current South African state. The message of the Bible must thus be established in a responsible and valid way, and communicated effectively to society. / Thesis (Ph.D. (Ethics))--North-West University, Potchefstroom Campus, 2006

This thesis challenges some of the current limits to the grounds for judicial review of legislation accepted by most Canadian jurists. More specifically, it makes a common law-based argument in favour of the priority over legislation of principles which are implied from the Imperial Constitution Acts 1867-1982 and which originally derive from the English constitution – namely implied constitutional principles. The argument faces two main interrelated legal objections: Parliamentary sovereignty and the Framers’ intentions. The first objection is rebutted by arguing that Parliamentary sovereignty possesses an ability to change in a way that can incorporate substantive legal limitations. The most prevalent common law-based theories of change to Parliamentary sovereignty suggest that the courts can authoritatively determine if implied constitutional principles can check legislation. The second objection is rebutted by reference to the notion of progressive interpretation as conceived under Hartian and Dworkinian theories of law and adjudication. Under these theories, progressive interpretation is an aspect of the courts’ best overall interpretation of the constitution, which includes implied constitutional principles. Such progressive interpretation can result in these principles constraining legislative authority. Justification of the progressive interpretation of implied constitutional principles can be based on the rule of law from which derive a number of these principles. One plausible conception of the Canadian rule of law is that it rejects the view that implied constitutional principles can prevail when in conflict with legislation. However, the better conception is that, as an attempt to adapt implied constitutional principles to relevant changes in society and to protect their underlying values, the judiciary should interpret these principles as capable of checking legislation to the extent that they form part of the core content of the rule of law. Such a conception and an operation of implied constitutional principles can properly be explained by Hartian or Dworkinian common law-based progressive interpretation of these principles and by their relationship with legislative authority.

Thesis (Ph.D. (Ethics))--North-West University, Potchefstroom Campus, 2006.

In this thesis I examine the status of the rights recognised in the International Covenant on Economic, Social and Cultural Rights in New Zealand‘s domestic law. I contrast that status with the constitutional guarantees that Brazil, South Africa and Finland provide for these rights, and critique the principal objections made in New Zealand and elsewhere against them. I argue that greater domestic legal protection of economic, social and cultural rights is necessary and propose that they be incorporated into the New Zealand Bill of Rights Act 1990.

In this thesis I examine the status of the rights recognised in the International Covenant on Economic, Social and Cultural Rights in New Zealand‘s domestic law. I contrast that status with the constitutional guarantees that Brazil, South Africa and Finland provide for these rights, and critique the principal objections made in New Zealand and elsewhere against them. I argue that greater domestic legal protection of economic, social and cultural rights is necessary and propose that they be incorporated into the New Zealand Bill of Rights Act 1990.

Before 1994 administrative law was dominated by parliamentary supremacy which dictated that Parliament is the supreme law-making authority in the state. This position was radically changed by the new democratic order. To protect the rights of citizens a Bill of Rights was introduced in South Africa. This research focuses on the uncertainty pertaining to the application of the audi alteram partem rule to the proceedings of commissions of inquiry. Section 24 of the interim Constitution, section 33 of the final Constitution and the Promotion of Administrative Justice Act 3 of 2000 were introduced to safeguard the individual against unfair administrative action. These legislative measures as well as applicable case law are analysed in order to establish whether they have brought about greater clarity concerning the application of the audi alteram partem rule to the proceedings of commissions of inquiry. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2004.

Before 1994 administrative law was dominated by parliamentary supremacy which dictated that Parliament is the supreme law-making authority in the state. This position was radically changed by the new democratic order. To protect the rights of citizens a Bill of Rights was introduced in South Africa. This research focuses on the uncertainty pertaining to the application of the audi alteram partem rule to the proceedings of commissions of inquiry. Section 24 of the interim Constitution, section 33 of the final Constitution and the Promotion of Administrative Justice Act 3 of 2000 were introduced to safeguard the individual against unfair administrative action. These legislative measures as well as applicable case law are analysed in order to establish whether they have brought about greater clarity concerning the application of the audi alteram partem rule to the proceedings of commissions of inquiry. / Thesis (LL.M. (Public Law))--North-West University, Potchefstroom Campus, 2004.

Due to the fact that Scripture is the authoritative Word of God (Belgic Confession. Article 5), the infallible written Word of God. is and stays the basis for Christian ethics. Scripture is not just another single source for Christian ethics among other sources, but it is the decisive source among all other sources. The question then arises - how is it possible in the ever-changing life situation of the modem day context of society? In an ever increasing secularized society places the Christian life and also the Christian ethics under more pressure. The acceptance of the authority of Scripture is therefore indispensable for Christian ethics. Scripture does however not present a text as an absolute answer for every possible or similar ethical problem. The deep-seated principles of Scripture must be exposed. From these principles norms should be derived that is applicable to the modem problem. The problem statement that follows from this culminates as the following: Can a thematic analysis of the Biblical dogma present a fundamental working foundation for Christian ethics in modem day society and serve as a corrective for the problematic approaches of a biblicistic as well as an over critical view of Scripture for the basis of ethics? The central theoretical argument of the study is the following: A thematic analysis of the Biblical dogma can indeed present a fundamental, working foundation for Christian ethics in modem day society and can serve as a corrective for the problematic approaches of a biblicistic as well as an over critical view of Scripture for the basis of ethics. In the second chapter the definitions of what could be defined as Christian ethical perspectives and principles is examined. In other words, the purpose of the chapter is to examine and to give a broad overview of the understanding of ethics, morality, morals etc. The qualified deontological approach is chosen due to the fact that normative approach with its focus on Scripture as authoritative therein plays a big role. The third chapter focuses on which view of Scripture and use of Scripture is normally applied in Reformed ethics in the use or interpretation of Scripture. Special attention is given to the authority of Scripture, view of Scripture and an attempt is made to convey the hermeneutical points of departure (axioms) in order to derive an intra-biblical use of Scripture. The chapter comes to the conclusion that even though the Christian ethicist does have in theory at his disposal a biblical-founded hermeneutical model it does not safeguard him against a faulty use or interpretation of Scripture in practice in the fourth chapter the present-day Scriptural principles that serves as basis and cadre for the interpretation of Scripture in light of the answering of Christian ethical questions is examined. In light of the present-day situation seems that although there is a sound hermeneutical axiom that serves as filters in the interpretation of Scripture in the reformed ethics, in practice either a biblicistic or a Criticism of Scripture approach to Scripture is chosen. The approaches of the fundamentalistic/biblicistic and Criticism of Scripture is examined and m e s to the conclusion that both, in their own way, does bring the authority and the message of Scripture in disrepute. In the event of the fundamentalistic and biblicistic approach the divine inspiration character of Scripture is overemphasized and all Scriptural Utterances is treated on the same level to such an instance that everything is sanctioned. In the event of the Criticism of Scripture the human fallible character is again overemphasized to the extent that the normative authority of Scripture for Christian ethics is not taken into account . The chapter comes to the conclusion mat a "third way” must be examined to circumvent the many pitfalls of either a fundamentalistic/biblicistic of Criticism of Scripture in the interpretation of Scripture in light of a modem day ethical problem. In the fifth chapter an adjudication and evaluation of the quality of the use or Interpretation of Scripture in light of capital punishment within the biblical view of a right to life is given as a representative of modem day ethical problems. In light of the principles given in Chapter 3 and 4 it is shown that Scripture is most often misused despite fair hermeneutical principles Only to reflect the ethicist own preconceived ideas. The last chapter indicates an approach that might possibly serve as an alternative/valid use or interpretation of Scripture in reformed ethics other than a typical biblicistic/fundamentalistic or Criticism of Scripture approach. The chapter draws to the conclusion that the contextual-paradigmatic approach is at this time the only capable approach of acknowledging the proper interpretation of Scripture to shed some light on the ethical problems of modem day society, without stepping into the boundaries of either a biblicistic/fundamentalistic of Criticism of Scripture interpretation of Scripture. The contextual-paradigmatic approach succeeds in preventing the ethicist to misinterpret Biblical texts that seems to be of importance to the debate of capital punishment and to make a scientific contribution lo important debates in South Africa today, especially those related to the interpretation of the Bible and its use in the development of South Africa. In this way an attempt is made to contribute towards and to provide guidelines for a healthy and responsible society and for the functioning of Christians within the current South African state. The message of the Bible must thus be established in a responsible and valid way, and communicated effectively to society. / Thesis (Ph.D. (Ethics))--North-West University, Potchefstroom Campus, 2006