This thesis is a cross-disciplinary study of legal history and customary law. Respect for, and accommodation of local customary law has been a constant and integral feature of law in Britain since Anglo-Saxon times. It guided the emergence of the common law, and continues as a rule of law to the present day. Such respect and accommodation was an essential principle that permitted the peaceful consolidation of the British realms from its constituent parts. Continuity of law is a legal presumption whether territories have been added by conquest, cession or annexation. The principle respect for local legal custom was one of two schools of thought carried to Britain's overseas colonies; the other was a theory that local customary law could be extinguished by non-recognition on the part of the British sovereign or his/her delegates. Nevertheless, customary laws and institutions were explicitly and implicitly recognized in the colonial period. The doctrine has modern application with respect to the customary law ways of indigenous peoples wherever the common law has been extended overseas. Rights under customary law are distinguished from Aboriginal rights, though there is some overlap between the two. Customary law can only be extinguished by an express statute, or by clearly unavoidable implication. Legal customs are not invalid merely for being contrary to the common law. Common law defers to valid customary law as a matter of constitutional common law. But the common law provides tests by which courts can identify valid legal custom. Where a valid, unextinguished legal custom is found, courts are bound by the common law to apply it. Where customary law can be identified, it binds the servants and agents of the Crown, except when it is inconsistent with Crown sovereignty itself.

The topic of this thesis is legal transplants in China since 1978. The first part is devoted to a presentation of contextual elements of Chinese Law, with a critical discussion of various theories of legal transplants, including the most recent Chinese scholarship on this topic. The second part contrasts the influence, on the Chinese legal reforms, of the continental (or civilian) legal tradition with that of the common law. To this end, the author uses a study of the reception of the bona fide principle and of the fairness principle in The Contract Law of the People's Republic of China, with a discussion of the future Chinese Civil Code. The common law's influence, in the same law, is then presented with a focus on the doctrines of anticipatory breach and indirect agency. In the end, the author explains why the civilian legal tradition will remain the dominant, but not exclusive, model on Chinese legal reforms.

This study examines two interconnected and as yet wholly neglected aspects of Max Weber's 'Sociology of Law,' namely, its substantive underpinnings and focal concern with the status of the judge. At the heart of the 'Sociology of Law' is a comparative analysis of the Continental and the English administrations of justice, which can best be understood when read against his substantive sociology and which requires an assiduous reading of the 'Sociology of Law.' Thus the first part of this examination elucidates Weber's overarching concern with the effects of bureaucratization on the development of personality. The second part provides a detailed explication of the 'Sociology of Law' which privileges his treatment of the Common Law and distinguishes the juristic and sociological strands of his analysis, re-examines his notion of formal and substantive rationality, pays close attention to his assessment of the Free Law Movement, and accords due place to his discussion of the anti-formalistic tendencies in modern law. Taken together, these expose the contradictions and assumptions which frame his tendentious analysis and bring to light the vital role he ascribes to the judge.

<p>The purpose of this thesis is to broadly determine the influence of the Constitution on the South African labour environment and to do so from the perspective of the labour rights of workers who fall outside the ambit of the traditional common law contract of employment. An examination of the Constitution&rsquo / s influence will involve a consideration of various aspects including: (i) The evolution of the concept of employee and the contract of employment / (ii) The impact of the Constitution on South African labour relations and labour laws / (iii) The purposive interpretation of legislation / (iv) An outline of the &lsquo / Kylie&rsquo / CCMA ruling and Labour Court judgment / (v) The current legal position of prostitution in South Africa / (vi) The requirements for a meaningful transformation in the legal treatment of sex workers particularly as regards their entitlement to the protections afforded to vulnerable workers provided in the LRA.</p>

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In this paper. I attempt to prove that obscenity as a legal concept is actually a moral judgment made by patriarchal powers and a political tool used to police female sexuality. I analyze James Joyce’s Ulysses as a case study, using Gustave Flaubert’s Madame Bovary as a precedent. While I believe that literature can transfer and inspire ideas, I don’t believe that transferring or inspiring perversity was the intent or effect of these novels. I argue not only that the trials’ prosecutions incorrectly claim that the novels sexually arouse the average or reasonable reader, but also that they do the opposite, or fail to meet expectations to do so. In the case of Madame Bovary, I further argue that the defense incorrectly claims that the novel has and enforces a set of morals, as the novel neither punishes nor lauds its protagonist, or any of its characters for the matter. These so-called obscene novels don’t convert the everyman into a pervert. However, Ulysses and Madame Bovary do reflect and thus reveal a reality that is inconsistent with the censors’ imagined utopia: the characters in the novels’ world as well as the readers in the real word are all sexual beings, women included. I argue that censors banned novels such as Ulysses and Madame Bovary because they wished to police female sexuality under the guise of protecting the public from obscenity. Specifically, they prevented the publishing and distribution of these and other Modernist texts in an attempt to erase realistic representations of female sexuality, thus illegitimating it. Nevertheless, the perseverance of these texts proves that moral values, particularly those regarding sexuality, cannot be enforced by the law (and neither should they be).

The purpose of this thesis is to broadly determine the influence of the Constitution on the South African labour environment and to do so from the perspective of the labour rights of workers who fall outside the ambit of the traditional common law contract of employment. An examination of the Constitution&rsquo;s influence will involve a consideration of various aspects including: (i) The evolution of the concept of employee and the contract of employment; (ii) The impact of the Constitution on South African labour relations and labour laws; (iii) The purposive interpretation of legislation; (iv) An outline of the 'Kylie' CCMA ruling and Labour Court judgment; (v) The current legal position of prostitution in South Africa; (vi) The requirements for a meaningful transformation in the legal treatment of sex workers particularly as regards their entitlement to the protections afforded to vulnerable workers provided in the LRA. / Magister Philosophiae - MPhil

The focus of this study is on the criteria and processes used by the South African Revenue Services (SARS) in recognising spouses in permanent, unmarried unions. In theoretically positioning this focus, four possible areas of tax benefits were reviewed . These include: (i) donations tax, (ii) capital gains tax, (iii) estate duty tax and (iv) transfer duty. Also , the focus of this study was positioned relative to South African taxation acts. Specifically, three Acts were selected for review, viz.: (i) the Income Tax Act, No. 58 of 1962, the Estate Duty Act, No. 45 of 1955, and the Transfer Duty Act, No. 40 of 1949. These Acts may be understood relative to the South African Constitution's framing of notions like equality - given that these Acts signal the legislation's intention to honour the constitutional rights of its tax-paying citizenry. Furthermore, a theoretical framework that highlights official and espoused perspectives of practice is reviewed as it provides a theoretical frame for this study. Given this legislative and theoretical background the following aims were focussed: (1) To identify the official and espoused criteria used by the South African Revenue Services to recognise unmarried partners as spouses, and (2) To identify the official and espoused processes used b~ the South African Revenue Services to recognise unmarried partners as spouses. The chosen methodology is an explorative descriptive methodology, as situated within a qualitative framework. Data sources are described as constituting the three tax Acts, a senior SARS official, and SARS helpdesk personnel. Data selection criteria are described , and convenience and purposive sampling are the stated data selection techniques. Document analysis and interview schedules were used to collect data. Data was managed and analysed via the use of several data analysis techniques. Results are presented and discussed. Significantly, SARS has non-specific criteria that are nebulous, and open to interpretation. Furthermore, processes are poorly stated and provide insufficient guidance to the taxpayer. Given these outcomes, this study also offers two South African legal cases that cogently illustrate criteria and processes for recognising a spouse. Each of these cases are analysed regarding the criteria and processes used to determine the definition of 'spouse'. These cases, while dealing with issues of same-sex adoption and same-sex partner's rights to remuneration benefits serve to highlight factors that may be of use to SARS. Furthermore, international case exemplars are also discussed. Specifically, Canada's taxation laws were focussed. Canada's criteria and processes used to define common-law partners (read as spouse for purposes of this study) serves as an informative case exemplar, relative to other countries also investigated in this study, viz .: the United States of America , Belgium and other European countries. Finally, several recommendations are stated , and an evaluation of the study is provided. / Thesis (M.A.)-- University of Durban-Westville, 2002

This thesis proposes an exception to the common law efficiency hypothesis. In many cases, common law moves toward efficient legal rules through an evolutionary process of litigation incentives. Software patent law has departed from this trend, due to an asymmetric and unopposed set of litigation incentives by parties in precedent setting decisions. This paper evaluates the history of software patent legal rules, using an economic model of litigation incentives. It concludes that software patent law has been driven toward inefficiency due to an asymmetric set of interests between patent filers and administrative agencies.

According to legislation, common law and case law, South African educators have a responsibility to ensure the safety of learners. Above all, God has placed children in our care and it is our God-given duty to take care of them. For educators to be able to perform this duty of care as it should be, they need to be equipped with the necessary legal knowledge. However, the acquisition of this knowledge remains the primary responsibility of each educator. Other educational role-players also have some moral obligation and responsibility to assist educators in attaining such knowledge. As educators should acquaint themselves with the relevant legislation regarding duty of care, such legislation should be accessible to all educators. Principals should encourage educators to become acquainted with the content of the relevant education laws. All the determinants regarding duty of care ought to be general knowledge to educators. Principles such as what torts comprise of, the requirements of delictual accountability, reasonable foreseeability and preventability and the reasonable educator test should be as well-known as subject didactical knowledge. Real-life situations and case law should be used to ensure a clear understanding of these principles. Tendencies in international law should also be communicated to educators. This study determined that educators do not have sound legal knowledge to meet the minimum requirements set by legislation, common law and case law. Tertiary institutions will have to compile training programs urgently so that education departments, trade unions, governing bodies and principals can make it available to educators, who, in turn can empower themselves with relevant, practical education law knowledge. / Thesis (M.Ed.)--North-West University, Potchefstroom Campus, 2006.