Law Commons^™

The Right Of Public Participation In The Law-Making Process And The Role Of The Legislature In The Promotion Of This Right, Karen Czapanskiy, Rashida Manjoo

Karen Czapanskiy

In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate …

Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks

Taunya Lovell Banks

Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …

Marginalized By Race And Place: Occupational Sex Segregation In Post-Apartheid South Africa, Sangeeta Parashar

Department of Sociology Faculty Scholarship and Creative Works

Purpose: Given South Africa’s apartheid history, studies have primarily focused on racial discrimination in employment outcomes, with lesser attention paid to gender and context. This paper fills an important gap by examining the combined effect of macro-and micro-level factors on occupational sex segregation in post-apartheid South Africa. Intersections by race are also explored. Design/methodology/approach A multilevel multinomial logistic regression is used to examine the influence of various supply and demand variables on women’s placement in white- and blue-collar male-dominated occupations. Data from the 2001 Census and other published sources are used, with women nested in magisterial districts. Findings Demand-side results …

Judgments Of The United States Supreme Court And The South African Constitutional Court As A Basis For A Universal Method To Resolve Conflicts Between Fundamental Rights, Daniel H. Erskine

Daniel H. Erskine

This article describes the methods utilized by the United States Supreme Court to resolve specific cases involving conflicts between federal constitutional rights, a federal constitutional right and a state constitutional or statutory right, and an international treaty right and a federal constitutional right. Consideration of particular decisions representative of the manner the Court resolves conflicts between rights in the three typologies described above, illustrates how the Court views such conflicts and the rationales employed to resolve apparent conflicting rights. The rationales used by the United States Supreme Court are compared to the South African Constitutional Court’s decisions in the Soobramoney, …

Like A Virgin? Virginity Testing As Hiv/Aids Prevention: Human Rights Universalism And Cultural Relativism Revisited, Erika George

International & Comparative Law Colloquium Papers

No abstract provided.

Human Rights And Gun Confiscation, David B. Kopel

David B Kopel

This Article addresses a human rights problem which has been generally ignored by the advocates of firearms confiscation: the human rights abuses stemming from the enforcement of coercive disarmament laws.

Part I conducts a case study of the U.N.-supported gun confiscation program in Uganda, a program which has directly caused massive, and fatal, violations of human rights. Among the rights violated have been those enumerated in Article 3 (“the right to life, liberty and security of person” ) and Article 5 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”) of the Universal …

The Right Of Public Participation In The Law-Making Process And The Role Of The Legislature In The Promotion Of This Right, Karen Czapanskiy, Rashida Manjoo

Faculty Scholarship

In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate …

Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Lovell Banks

Faculty Scholarship

Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …

Authorizing Subnational Constitutions In Transitional Federal States, Jonathan L. Marshfield

Vanderbilt Journal of Transnational Law

Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa's celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.

Occupiers Of 51 Olivia Road V. City Of Johannesburg: Enforcing The Right To Adequate Housing Through Engagement, Brian E. Ray

Law Faculty Articles and Essays

On 19 February 2008, the South African Constitutional Court handed down an important new socioeconomic rights decision, Occupiers of 51 Olivia Road v City of Johannesburg ('City of Johannesburg'). City of Johannesburg approved a landmark settlement between the City of Johannesburg and residents of several informal communities in Johannesburg who had sought to prevent the City from evicting them as part of an inner-city regeneration project. Rather than imposing a direct remedy, the Court instead constitutionalised a novel 'engagement' requirement in housing-rights cases. Engagement, which requires government entities to consult with residents affected by policy decisions that may involve eviction …

South Africa's National Credit Act: A Possible Model For The Proper Role Of Interest Rate Ceilings For Microfinance, Megan Whittaker

Northwestern Journal of International Law & Business

This comment will discuss the current debate regarding the proper role of interest rate ceilings in microfinance and how the South African National Credit Act should serve as a model for future studies of microcredit systems in developing countries. Part II will discuss the controversy over interest rate ceilings in microfinance, setting concerns regarding the effect of ceilings on the viability of microfinance institutions against the need to protect marginalized consumers from predatory lending. Part III will analyze various alternatives to usury laws that microfinance experts have proposed, with an emphasis on supervisory and regulatory systems as the most promising …

In The Spirit Of Ubuntu: Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John Bessler

All Faculty Scholarship

This Article discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's lack of compliance with the human rights of orphans and vulnerable children whose lives have been affected by HIV/AIDS. The Constitution of the Republic of South Africa explicitly protects children's rights and various socio-economic rights of concern to children, and the Constitutional Court of South Africa has held such rights to be justiciable. The constitutional rights of South African children affected by HIV/AIDS, however, have been continually violated. This Article discusses how the existence of these constitutional rights may …

Authorizing Subnational Constitutions In Transitional Federal States: South Africa, Democracy, And The Kwazulu- Natal Constitution, Jonathan Marshfield

Jonathan Marshfield