Joining in the search for a post-apartheid South African jurisprudence, this dissertation departs from transformative constitutionalism, as formulated by Karl Klare. Transformative constitutionalism is a long-term project of bringing about social change through the interpretation and enactment of the constitution. Because the project envisions transformation not as single occurrence but as a continuous process, it requires a legal culture that is conducive to this change. Legal culture pertains to the way in which law and legal concepts are approached. The suggestion is that there is a continuation of a formalistic legal culture in South Africa, and this continuation of formalism stifles the transformation envisioned by the South African Constitution and the project of transformative constitutionalism. The idea of continuation emphasises the momentum of legal culture and is related to institutional inertia. This dissertation links conservatism, positivism, formalism and other related concepts with the notion of spectacle as outlined in the work of Njabulo Ndebele and proposes that South African legal culture is a continuation of spectacle by looking at approaches to history, constitutionalism, democracy and rights. The spectacle, like formalism, prefers the determinate, values display and emphasises the external - it is an overt and celebratory mode devoid of thought. Because the spectacle and the continuation of a legal culture of spectacle stifles transformative constitutionalism, the submission is that there should be a refusal of spectacle in South African legal culture and a return to the ordinary. The notion of refusal comes from an article by Karin Van Marle, and links with a critical and slower approach. Ndebele introduces rediscovery of the ordinary, which is related to the concept of the everyday. Opposed to the spectacle, refusal and the ordinary favours contemplation and commemoration. This leads to a view on approaching history, constitutionalism, democracy and rights as refusal of spectacle and rediscovery of the ordinary. It is an attempt to rethink South Africa’s legal culture in order to move closer to the aims of transformative constitutionalism. Following the aesthetic turn in South African jurisprudence, this dissertation makes use of literary examples to illustrate the arguments. Ndebele’s The Cry of Winnie Mandela and Eben Venter’s Horrelpoot introduce the themes of storytelling, travelling and post-colonialism and aptly expands on the call for a refusal of spectacle. / Dissertation (LLM)--University of Pretoria, 2009. / Jurisprudence / LLM / Unrestricted

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Legal Culture of the State of Israel Keywords: Israel, legal culture The present legal system of the State of Israel is unique because of its mixing of different legal sources. The legal environment is characterized by interfacing of principles arising out of common law and continental law as well as religious law. The object of this thesis is to analyze how these different legal sources are mixing in modern Israeli legal system. The main question to be answered by this analysis is whether the Israeli legal system can be qualified as the member of one from basic legal cultures of the world (i.e. common law or continental law). Eventually whether the combination of legal aspects is specific so much it is necessary to speak about absolutely unique legal culture category. The thesis analyzes the legal system of Israel in basic branches of law. It is focused on constitutional questions, the way how the state power is established and how is enforced in day-to- day experience. There is parliamentary democracy with principles similar to many European countries but there are some distinctions as well. Peculiar for Israeli political system is strong influence of religious political parties. The very specific for Israel is the construction of Basic laws replacing standard constitution. The great part of the...

This dissertation examines how ordinary people in England and Russia form their perceptions of legal institutions in their experiences with lower courts. This work is based on a qualitative study involving interviews and observations in county and magistrates' courts in England and courts of Justices of the Peace in Russia, a number of focus groups with the court users and the judges, as well as a variety of secondary sources. The goal of this study is to investigate the inner workings of the English and Russian legal cultures through the analysis of stable attitudes towards legal institutions and their interplay with the people's perceptions of their individual experiences. My examination of these complex sets of ideas and images includes the analysis of people's preconceptions about institutions of justice, people's perceptions of administrative and procedural models, their interaction with court administration and legal professionals, and evaluations of the final outcomes of their cases. I argue that perceptions of legal institutions even at the lowest level are linked to the traditional images of courts in the Russian and English societies. The perceived position of legal institutions within the framework of the state, i.e. the level of their independence and impartiality, is one of the leading factors that shape people's long-standing attitudes of trust in legal institutions. The availability of administrative and procedural mechanisms that create and reinforce perceptions of transparency, equality, and reliability of legal institutions in people's everyday experiences contributes to the creation of stable attitudes of institutional trust. People’s perceptions of the English and Russian lower courts reflect how ordinary citizens see the law and the institutions of justice in their countries, and how they perceive their own ability to obtain justice with the use of official legal mechanisms. These perceptions reveal the underlying relationships between people, law, and legal institutions in different societies and, therefore, contribute to our understanding of legal cultures.

In northern Thailand, legal and social change creates dilemmas for forest conservation. On the one hand, Thailand suffers from severe deforestation and biodiversity degradation mainly as a result of human activities that overuse and encroach on forest areas. On the other hand, forestry law has, in turn, intruded on traditional communities that lived in and relied on the forest before modern state law diminished their lands and community rights. One of the potential solutions to this dilemma is community forest management (CFM), which acknowledges the forest stewardship of the communities who rely on the forest and helps them to become better forest protectors. CFM refers to people’s participation in forest conservation in the form of collective community action. The right to practise CFM is guaranteed in the Thai Constitution as a community right. However, state forestry law provides direct authority to government agencies and dominates forest management without reference to the Constitution. My hypothesis is that the Thai legal system is not compatible with CFM because the legal culture is based on written law and not on living law, which comes from the legal consciousness of the villagers and government officers who practise CFM. I use interviews as a research method to investigate the legal consciousness of three groups of people involved in implementation of CFM: members of three selected northern lowland and hill tribe communities/villages; government officers; and legal professionals. I apply green legal theory to analyze the two types of law governing CFM: state law and the law of the commons. People in the selected forest communities apply their own CFM regulations and use state forestry law for support only when their regulations cannot handle extreme situations. The villagers’ own CFM – the law of the commons – together with state law, creates their “living law”. Government officers cooperate with CFM, knowing that it will help them fulfill their mission of forest conservation. In contrast, legal professionals rely only on state forestry law rather than the Constitution, despite its supremacy, and ignore the law of the commons. To explain this phenomenon, I “decode” Thai legal culture by investigating its historical and social contexts. I also examine the legal education system, law making processes, legal commentaries and court decisions, to understand what shapes Thai legal culture. In my view, the narrow focus on statute law in Thai legal culture, and the focus on law as a profession rather than as a justice-based discipline, can be explained by the “modernization” of Thai administration and laws, and by the encroachment of globalization and capitalism, both of which have resulted in moving away from traditional land management based on the commons. I conclude by suggesting that the acceptance of CFM in Thai legal culture can be improved by encouraging socio-legal study, increasing understanding of CFM, implementing constitutional legal principles – and by reclaiming the law of the commons. / Graduate

This dissertation explores Christian-Jewish relations in the decades prior to the watershed of 1391, when Christian mobs throughout Castile and the Crown of Aragon killed or, more often, forcibly converted many Jews. My research indicates that the explosive violence of 1391 was not the predictable, inevitable result of growing interfaith animosity in the Crown of Aragon but was sparked by developments in Castile. Because of the resultant converso problem many historians consider 1391 to be a turning point in Iberian history. Yet historians have not closely explored Jewish-Christian interaction in the crucial later fourteenth century, particularly not in the Crown of Aragon, and have assumed, wrongly I believe, that the period following the Black Death (1348) saw a steady deterioration in the Jews’ relations with Christians. The first three chapters of the dissertation deal with the “crises” that marked late fourteenth-century Catalonia and Aragon. In the first chapter I outline the long-term precedents - the Black Death and successive wars – of the economic crisis that would follow. The second chapter focuses on economic matters – the Jewish contribution to the economy as well as the impact of growing debt and the development of new credit mechanisms. Chapter three, in turn, focuses on the impact of increasing taxation on Jewish communities. The final three chapters explore ways in which Jews and Christians coped with crises: chapter four deals with sources of conflict within Jewish communities, chapter five with conflict between Jews and Christians, while the last chapter looks at conversion as a way of coping with the crises of the fourteenth century. Throughout, my research shows how Jews and their Christian neighbours and rulers developed strategies and means of coping with the effects of epidemic disease, famine, and frequent warfare. I pay particular attention at how the law became a mechanism for coping with the worsening of economic conditions.

This dissertation explores Christian-Jewish relations in the decades prior to the watershed of 1391, when Christian mobs throughout Castile and the Crown of Aragon killed or, more often, forcibly converted many Jews. My research indicates that the explosive violence of 1391 was not the predictable, inevitable result of growing interfaith animosity in the Crown of Aragon but was sparked by developments in Castile. Because of the resultant converso problem many historians consider 1391 to be a turning point in Iberian history. Yet historians have not closely explored Jewish-Christian interaction in the crucial later fourteenth century, particularly not in the Crown of Aragon, and have assumed, wrongly I believe, that the period following the Black Death (1348) saw a steady deterioration in the Jews’ relations with Christians. The first three chapters of the dissertation deal with the “crises” that marked late fourteenth-century Catalonia and Aragon. In the first chapter I outline the long-term precedents - the Black Death and successive wars – of the economic crisis that would follow. The second chapter focuses on economic matters – the Jewish contribution to the economy as well as the impact of growing debt and the development of new credit mechanisms. Chapter three, in turn, focuses on the impact of increasing taxation on Jewish communities. The final three chapters explore ways in which Jews and Christians coped with crises: chapter four deals with sources of conflict within Jewish communities, chapter five with conflict between Jews and Christians, while the last chapter looks at conversion as a way of coping with the crises of the fourteenth century. Throughout, my research shows how Jews and their Christian neighbours and rulers developed strategies and means of coping with the effects of epidemic disease, famine, and frequent warfare. I pay particular attention at how the law became a mechanism for coping with the worsening of economic conditions.

This dissertation explores the relation between literature and legal culture in Argentina. It asks why Argentinean literature repeatedly engages with problems of justice and criminality, and what social meanings and social effects this produces. The recurrence of judicial scenes in Argentinean literature expresses a frustration for the way in which the state and society try to solve their conflicts, and reveals what demands and ideas of justice are conceivable in a society that, like Argentina’s, is prone to unlawfulness. My argument is that given Argentineans resistance to the law, literature configures an alternative legality that contests state definitions and juridical principles, and displaces the symbolic place of criminality within society, revealing the jurisgenetic potentials of literature, its ability to create legal meaning. In Chapter 1, I analyze literary contestations of state definitions of criminality and justice during the simultaneous development of juridical and literary discourses at the end of the nineteenth century, specifically in Esteban Echeverría’s El matadero (1871), José Hernández’s Martin Fierro (1872, 1879), and Eduardo Gutiérrez’s Juan Moreira (1879). Chapter 2 examines how Jorge Luis Borges questions the philosophical possibility of political and juridical representation and appeals to a Hispanic affectivity to argue for a personal, individual, and affect-driven justice that ignores the state. Finally, Chapter 3 shows the alternative legality produced by literature at work by surveying cases of litigation in the cultural sphere between 1959 and 2004. The study of the legal opinions written by the judges in the cases against Ricardo Piglia’s Plata quemada (1997) and against the exhibition entitled León Ferrari. Retrospectiva. Obras 1954-2004 demonstrates that the notions and mechanisms regulating artistic practices are capable of refracting juridical principles. / 2018-08-11T00:00:00Z

This thesis examines the practices of international, national, and localised criminal courts in post-genocide Rwanda. It argues that, although the courts are compatible in law, an interpretive cultural analysis shows that they have often competed with one another. The research draws on interviews conducted with judges, lawyers, and a group of witnesses and suspects from the United Nations International Criminal Tribunal for Rwanda (ICTR), the national Rwandan courts, and the gacaca community courts. The courts’ judges and lawyers have interpreted Rwanda’s transitional justice processes very differently. The ICTR has been principally concerned with developing international criminal case law. The national courts purport to have focused on domestic legal reform, while personnel inside gacaca view these local courts as having provided an account of the events and causes of the genocide. This thesis argues that the different interpretations offered within Rwanda’s post-genocide courts illuminate divergent legal cultures inside the institutions, leading to failures in effective cooperation and evidence gathering. The courts have pursued diverse means to try to establish their legitimate authority. However, among a group of Rwandan citizens, the practices of one court were routinely used as the basis to criticise the actions of the others, raising challenges for the legitimacy of transitional justice in Rwanda. The potential for similar competition between domestic and international justice processes is apparent in the current practice of the International Criminal Court (ICC). However, this competition can be mitigated through more effective communication between different justice systems which respond to the needs of the affected populations, fostering a legal culture of complementarity.

<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>