Since controlling one's own death emerged as a legal question in the 1970s in the United States of America it has remained both a contentious and undecided legal issue in that country. As a matter of constitutional law it seems clear that there is no general right to die in American law, only the limited right to refuse medical treatment. In federal constitutional law this unenumerated right flows, according to the US Supreme Court, from the liberty interest protected in the Fourteenth Amendment and as such forms part of the court's substantive due process jurisprudence. Other US courts have found that this right may be based on First Amendment religious rights, the general unenumerated right to privacy or on state constitutional privacy rights. An analysis of the right to die in South African constitutional law based upon the experience in the US suggests that in South Africa there will most likely develop a much broader constitutional right to die than is the case in the US. This is partly due to a larger range of enumerated fundamental rights being protected in the South African 1996 Constitution which will allow the Constitutional Court to shy away from the problematic substantive due process analysis with which the US Supreme Court has had to grapple in this context. While the US jurisprudence regarding the right to die provides a solid comparative point of departure for a South African analysis, local courts should be mindful of the significant differences between the jurisdictions, which might be dispositive in this instance.
South Africa has inherited the British adversarial system, which is party centred: lawyers for both the state and defence play a dominant role in the pursuit of procedural justice. The common law recognises as fundamental the right of the individual to legal advice and legal representation. It is also a fundamental principle of our law that an accused person is entitled to a fair trial. There is a practical and logical nexus between legal representation and a fair trial. The accused must be properly and promptly be informed of this right in order to be afforded a reasonable opportunity of securing it. The position on legal representation under the interim and final Constitutions is addressed. The entitlement of an accused person to legal representation at state expense where substantial injustice would otherwise result, as well as effective assistance by counsel, are important principles which are also discussed.
The suppression of the transatlantic slave trade in the nineteenth century involved a reliance on and the development of particular aspects of international law, namely those relating to the law of maritime warfare. In the process, Mixed Commissions were the judicial arm of suppression policies. Part 2 of this series of articles considers the legal background to the Anglo-Portuguese Mixed Commission in Cape Town as well as the complimentary, competing and occasionally illegal role of British Vice Admiralty Courts generally and that of the Vice Admiralty Court at the Cape of Good Hope more particularly in the suppression of the slave trade and the liberation of slaves.
In American law the rejection of the will theory and adoption of an objective theory of assent, coupled with the acceptance of the bargain theory of consideration, saw a shift in emphasis from agreement to bargain, and substance to form. However, substantive issues have remained a concern of the courts and are principally implemented under the reliance principle and even under the guise of the doctrine of consideration itself. Although most enforceable contracts are the result of subjective agreement between the parties and subjective intention, at least by implication, is thus not completely irrelevant within the context of contractual responsibility, American law clearly emphasises the manifestations of assent rather than actual assent itself. It also recognises the ascription of contractual liability on the basis of reliance in the absence of consideration. This article examines the principles of contractual liability in American law and the ways in which they are applied in contract law adjudication.
This article discusses the implications for the future of multilateralism and international law posed by the strategic doctrine of pre-emption of enemy states as graphically demonstrated by 'Operation Shock and Awe' in Iraq. This doctrine posits that the United States of America needs to intimidate countries with its power and assertiveness - always threatening, always denouncing, never showing weakness and by demonstrating that a massive military power can keep the United States of America safe. In its avowed war on terror, the Bush administration has fashioned a one-dimensional view of the world: 'there is no neutral ground, either you are with us or against us'. In this scenario, the Bush administration has appropriated the prerogative to 'smoke them out', 'remove the axis of evil' and to 'crash the shadowy foe, real or imagined'. With the United States-led attack and occupation of Iraq (March 2003-June 2004) as an example, the focus of this article is the question whether a single member state of the United Nations or the so-called coalition of the 'willing' can decide whether the US could take military action, without prior authorisation of the Security Council, either for the maintenance or restoration of international peace and security or, for the enforcement of international law in general. It is argued that the self-proclaimed right to strike pre-emptively at any danger violates the most basic rules of international law and inter-state relations with respect to the sovereign equality of nations, political independence and the territorial integrity of weaker states. It also severely compromises the system of collective security so carefully crafted after World War II and is centralised in the Security Council. In conclusion, it is submitted that the answer to the apparent failure of the Security Council to discharge its primary responsibility lies in the proposed re-structuring and repositioning of the council, and not in unilitateral and selective action by a single member or a motley collection of members of the UNO.