LL.M. / This study seeks to investigate the extent to which the state fails to comply with its constitutional and legal duties, and the impact of this failure on democracy. The study determines the effect of such failure and assesses the effectiveness of existing compliance mechanisms in ensuring the state fulfills its constitutional and legal duties. The duties imposed on the state must be complied with to ensure the legitimacy of the Constitution remains intact. State compliance with these duties forms an essential foundation of the Constitution. It is accepted in this study that the manner in and extent to which the state fails to comply with its duties impacts the status of the Constitution and the development of democracy in South Africa. There are two ways in which the state may fail to comply with its duties: 1. The first instance is where the state bona fide misinterprets legislation. 2. The second instance is where the state negligently ignores its duties or wilfully disregards its duties or takes on “imagined powers”. This study concerns itself with this second instance of non-compliance. The question not only concerns the extent of state non-compliance with its duties. The question also becomes, what are the ramifications if the state does not comply with its duties? What would be the consequences if the state wilfully, with mala fide intent or by the use of “imagined powers” neglects or ignores its duties? What would be the effect on the development and sustainability of democracy in South Africa? What are the existing compliance mechanisms and are they effective enough to ensure state compliance with its duties? The study endeavours to explore these questions. The study looks at a series of court cases illustrating the extent to which the state has so far failed to act in compliance with its duties. The study attempts to determine whether such non-compliance was merely a mistake or whether the state acted with some form of wilfulness or neglect. The study looks at the existing mechanisms and watchdogs that ensure state compliance with the Constitution and briefly examines whether they are effective. Other possible mechanisms that may strengthen control over state compliance are also considered. The study first looks at the duties of the state and the existing control mechanisms. Then a selection of cases are analysed to determine in what manner and to what extent the state is failing to comply with its constitutional duties. The study then assesses the current control mechanisms to determine whether they are effective in enforcing state compliance with its duties. Lastly, the study examines other possibilities and alternative mechanisms that may be introduced to secure state compliance.

This dissertation argues that applying a flexible delay rule to self-reviews of administrative acts under the principle of legality facilitates enhanced state accountability and contributes to upholding the rule of law. This flexibility is particularly important amidst allegations of widespread corruption and maladministration in South Africa that necessitate strong accountability mechanisms. Public functionaries are granted express power to participate in commercial transactions in the public interest. When this power is exercised unlawfully, the state has an opportunity to remedy its unlawful administrative acts through the court process of judicial review. The delay rule requires judicial reviews to be instituted without unreasonable delay. Courts must pronounce on the issue of delay prior to considering the unlawfulness of a public act. After defining the delay rule in the context of self-reviews, this study compares the delay rule set out in the Promotion of Administrative Justice Act (PAJA) with the delay rule under the principle of legality. Through case law, this research establishes that the PAJA delay rule is applied rigidly by courts. This rigidity has led to courts dismissing self-reviews after finding that a public functionary's review application was instituted unreasonably late and the delay could not be overlooked in terms of PAJA. The dismissal has meant that the impugned public act was neither declared unlawful nor set aside, undermining accountability and the rule of law. This study finds that the application of a less strict delay rule under legality in self-reviews enables courts to declare public acts in contravention with the Constitution unlawful notwithstanding an unreasonable delay in pursuit of accountability and the rule of law. / Mini dissertation (LLM (Constitutional and Administrative law))--University of Pretoria, 2021. / Public Law / LLM (Constitutional and Administrative law) / Unrestricted

This dissertation explores conceptual, normative, and institutional dimensions of the emergency problematic and defends judicial participation in emergency governance. I develop my arguments on the basis of Posner and Vermeule’s discussion in their book Terror in the Balance. I reject their institutional account of emergency governance captured in their deference thesis by showing its incompatibility with fundamental liberal democratic commitments. As I argue, Posner and Vermeule’s call for across-the-board judicial deference to the executive during emergencies is unwarranted in a number of cases, most notably those involving conflicts of constitutional rights. I also reject Posner and Vermeule’s account of emergency policymaking captured in their tradeoff thesis by showing that it does not provide a suitable criterion by means of which the legitimacy of emergency policies could be determined. My arguments against the tradeoff and deference theses are based in part on my critique of Posner and Vermeule’s conception of emergency situations. In fleshing out my conception of emergency, I present and defend a methodological approach to studying the emergency problematic and offer an extensive discussion of exceptionality associated with emergencies. My conclusion is that it is necessary to take in account liberal democratic commitments in the process of emergency policymaking and that judicial review of the executive during periods of emergency is conducive to legitimate emergency governance. / Thesis / Doctor of Philosophy (PhD) / Some national security crises pose serious challenges to western liberal democracies. On the one hand, because such crises threaten individual lives and the welfare of the political community, there is a strong case in favor of demanding that the government do everything in its power to quash such threats by any means necessary. On the other hand, a number of constitutional commitments seem to prevent liberal democracies from using some means in addressing national security crises. In particular, emergency measures such as coercive interrogation and indefinite detention seem to undermine a number of values and commitments that are fundamental to liberal democratic regimes. In addition, there is a controversy surrounding the role of the judiciary during emergencies. Should judges review executive action to ensure its legitimacy during emergencies or should the executive be the final authority on the legitimacy of its policies? My dissertation develops answers to these questions. I begin by exploring conceptual issues surrounding emergencies. On the basis of this exploration, I provide an account of the role of fundamental liberal democratic commitments in the project of emergency governance and argue in favor of judicial participation in governing liberal democratic communities during periods of emergency.

Thesis--Faculté de droit de Paris. / Includes bibliographical references.

No description available.

The thesis approaches the question of distributive justice through an analysis of legal rights, focusing in particular on constitutional rights. In Part I (Chapters 1, 2, 3) conceptual issues of the meaning of rights are considered. The concept of a right is analyzed generally as (1) a claim to something; (2) which is logically correlated with a duty; and (3) which is justified, in the case of constitutional rights, by reference to constitutional grounds. The more specific Hohfeldian analysis of legal rights is then coordinated with the general account. Analyzing rights as justified claims leads to the question of what counts as constitutional justification which is in turn intimately tied to a correct account of judicial review. In Part II (Chapters 4,5) a definitive account of judicial review is attempted. After examining the logical base of legal reasoning and concluding that it is essentially dialectical, the major normative theories of judicial review are considered. In particular natural law, legal realism, reasoned elaboration, and legal positivism are considered and all are rejected in part. An attempt is then made to incorporate significant elements of each in a general theory using the coherence methodology of Ronald Dworkin. Finally the results are applied to a paradigm of the sort of judicial reasoning that seems to capture the elements picked out in the earlier analysis. It is argued that the thesis advanced here explains and justifies the judicial reasoning used in that case (Griswold v. Connecticut).

The thesis surveys and analyses Commonwealth Bills of Rights. It examines the content of these Bills of Rights and considers their origin and political implications. The first chapter reviews the political history of Bills of Rights generally. This is followed by a chapter dealing with the initiation and introduction of Commonwealth Bills of Rights. Particular attention is given to the attitudes and influences of British officials and advisors. The third chapter considers the general forms of Commonwealth Bills of Rights and the ways in which such guarantees are qualified. The next three chapters examine the substance of the particular guarantees and note judicial cases that are of particular interest. In the seventh chapter some of the political implications of these Bills of Rights are considered. The eighth chapter concerns judicial attitudes toward the enforcement of a Bill of Rights. This is followed by concluding remarks.

Thesis advisor: David Hollenbach / Subsidiarity is a principle in Catholic social thought that informs the distribution of authority among levels of the political and social order. First expressly articulated by Pope Pius XI in his 1931 encyclical letter Quadragesimo Anno, the roots of the concept go back further to Pope Leo XIII and to Thomistic social theory. But subsidiarity is frequently subject to the criticism that it is vague and indeterminate and thereby an ineffective guide to politics and public policy. Much of the discussion of subsidiarity proceeds as though the principle were merely one of devolution of authority to the local level. Moreover, the principle is often taken to be a procedural norm, counseling "small is better" regardless of the underlying substantive question to which one is applying the principle of subsidiarity. The thesis of this dissertation is that it is only through an adequate examination of concrete policy issues that subsidiarity's import can be fully measured and appreciated and only by asking what the common good requires in particular instances through the exercise of political prudence that the proper distribution of authority can be determined. The account of subsidiarity advanced in the dissertation is one of "functional pluralism," denoting that subsidiarity focuses upon the multiple ends of differentiated political societies and thereby seeks to determine the goods they pursue and the means that are properly adapted to those ends. The dissertation argues that federalism and localism as informed by the principle of subsidiarity provide a safeguard for fundamental concerns of Catholic social thought, such as human rights and the common good. After examining the concepts of subsidiarity in Catholic social thought and federalism in American constitutional law and considering their relation, the dissertation discusses three areas in which a richer and analytically sharper understanding of the principle of subsidiarity can make an important contribution to policy debates over the role of federalism and localism in law and public policy. The three policy questions addressed in the dissertation are physician-assisted suicide, FDA preemption, and school finance. / Thesis (PhD) — Boston College, 2009. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Theology.

Thesis advisor: R. Shep Melnick / The United States now has an extensive, publicly controlled, and bureaucratic system of election regulation. Until roughly a century ago, however, elections were viewed as private party contests subject to minimal state regulation. We examine how this changed, considering in particular the role played by the courts, given that for much of the nineteenth century they viewed the parties as private, constitutionally protected associations. We consider how and why the libertarian argument concerning free speech came to prominence in the campaign debate, and find that at first neither the reformers nor the courts at any level viewed this as a fundamental obstacle to--or even an issue to be considered in--the regulation of money in politics. This shift from a private to a public electoral system had a significant impact on American democracy that has not often been examined. To understand these changes, we examine the arguments put forth by advocates of cam-paign finance reform from the nineteenth to the latter part of the twentieth centuries. We focus on how the proponents justified these laws and how state and federal courts responded to these arguments, paying particular attention to court rulings on the constitutionality of these unprecedented statutes in the late nineteenth and early twentieth centuries and to the evolution of their jurisprudence in this regard during the twentieth century. / Thesis (PhD) — Boston College, 2009. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Political Science.

My dissertation focuses on ratification--the submission of a draft constitution to the people for their approval in an up or down vote--and has two central aims. First, it explores the mechanics, current usage, and possible effects of ratification and argues that despite its intuitive nature and ubiquity, it is in need of justification. Ratification is increasingly common and regularly included within the framing recommendations given by consultants, NGOs, transnational institutions, and the like. In addition, the procedure has significant effects: it can influence the behavior of framers, subsequently alter the contents of what they produce, is expensive to implement, and can lead to costly constitutional rejections. Despite this, both practitioners and scholars treat ratification as a given and provide no explanation or justification for its use. I argue that this is a mistake. Second, the primary aim of my dissertation is to ask what justifies the use of ratification, i.e. what reasons constitution-makers might have for implementing the procedure. Drawing from the history of ratification and the empirical and theoretical literature on constitution-making, I explore a series of possible justifications for the procedure, each of which connects to a central topic or theme in democratic theory. First, I ask whether ratification plays a role in a representative process ongoing during constitution-making, and whether the importance of fostering representation justifies its use. Second, I examine whether the need for ratification stems from its function as a moment of constituent power, an instance where the people manifest and exercise their will to make a constitution their own. Third, I explore whether ratification helps legitimize constitutions; this entails articulating a three-part theory of legitimacy corresponding to the concept's legal, moral, and sociological manifestations, and analyzing the role of ratification within this scheme. I test these potential justifications by looking at their theoretical coherence, applicability to cases of constitution-making from the 18th century to the present, and their compatibility with the actual dynamics and mechanisms of the constitution-making process. The results of my analysis are as follows. I argue that the only role ratification might play in a representative process is as an accountability mechanism, but that the possible divergence between how a voter evaluates a draft constitution and the behavior of his or her representative framer makes the procedure unable to take on this role. I find that theories of constituent power only justify ratification if the procedure is the sole moment during constitution-making in which the people take direct action on the constitution. This limits the justification to ratification procedures involving referenda, and requires that voters make a meaningful choice on the proposed constitution, i.e. they must choose whether to accept or reject a constitution on the basis of their understanding of its contents and the likely result of its rejection. However, this standard of meaningful choice, which requires a far greater level of voter informedness than ordinary instances of direct democracy, is unlikely to be met because voters cannot be expected to possess or obtain the sort of highly technical and specialized information such constitutional evaluation requires. Finally, I show that legal legitimacy collapses into sociological legitimacy when it comes to new constitutions and that ratification might produce sociological and moral legitimacy by making the contents of a constitution more likely to fall within the bounds of actual or perceived legitimacy, or by procedurally legitimating the outcome regardless of its substance. However, each of these pathways has considerable explanatory weaknesses and do not in themselves justify ratification. Thus, I ultimately conclude that there seems to be no convincing general justification available for ratification. The initially compelling arguments in favor of the procedure apply only occasionally, ignore differences between constitutional and ordinary lawmaking, contradict some of our central theories and assumptions about constitutionalism and democracy, or assume the prior existence of robust democratic norms. This does not amount to a wholesale rejection of ratification, for contextual variables might produce reasons for its implementation and I explore what these might be, but it does give reason to question the automatic application of this procedure, as well as the similar treatment of other peripheral components of constitutional and institutional design processes the merits of which are assumed rather than critically evaluated.