Acta Juridica - Volume 2008, Issue 1, 2008
Volume 2008, Issue 1, 2008
Source: Acta Juridica 2008, pp VII –XIV (2008)More Less
Dignity has developed into a key concept of constitutional and human rights law worldwide. Increasingly, human rights documents and other international legal instruments, constitutional Bills of Rights, and the decisions of international and domestic courts proclaim the centrality of dignity to their endeavors.
Author Catherine O'ReganSource: Acta Juridica 2008, pp 1 –17 (2008)More Less
At the Constitutional Court, collegial deliberation is lengthy, substantive and conducted both verbally in meetings and electronically by the exchange of notes and drafts. During the course of deliberation on a particular case, the court will meet at least twice to discuss it and often as many as half a dozen times and sometimes even more. In addition, there will ordinarily be many lengthy written exchanges on the case. The process of deliberation at its best refines issues, improves legal reasoning and renders just outcomes more likely. As a result of the process of deliberation, a draft judgment may change dramatically from when first written to its final form.
Bridging the span toward justice : Laurie Ackermann and the ongoing architectonic of dignity jurisprudenceAuthor Drucilla CornellSource: Acta Juridica 2008, pp 18 –46 (2008)More Less
Justice Laurie Ackermann has played a pivotal role in the development of the dignity jurisprudence of South Africa. At the heart of Ackermann's journey is nothing less than bravery exhibited by a constant struggle with the development of a dignity jurisprudence worthy of a constitution that does not simply forsake its moral grounding in ideals and values but insists that enumerated rights must always be defended alongside the aspiration to live up to those ideals and values.
Author Allen WoodSource: Acta Juridica 2008, pp 47 –65 (2008)More Less
This is my first trip to South Africa. In fact, it is my first time on the continent of Africa, and even my first adventure south of the equator. I am honoured to be in South Africa, because I regard this nation as just about the only one whose history in the past half century might have the power to inspire us with hope. My own country, for instance, the United States, has long thought of itself (and has even been thought of by others) as a defender of human rights and liberty. But during the past fifty years, it has become the world's leading imperialist power. It now engages without hesitation in brutal wars of aggression. It regards its military power as exempting it from all international law and even from all recognised standards of human decency. At home as well as abroad, it is turning into a sham all the conceptions of human rights, and all the ideals of democracy and freedom, which it still arrogantly thinks of as its exclusive property.
Author Jeremy WaldronSource: Acta Juridica 2008, pp 66 –90 (2008)More Less
Citizens of South Africa do not need me to tell them how important the idea of dignity is in our modern conceptions of human rights. Human dignity is the first of the values on which the South African Constitution is founded and, along with equality and freedom, it is the basis of South Africa's Bill of Rights.
Author Frank I. MichelmanSource: Acta Juridica 2008, pp 91 –111 (2008)More Less
'Freedom is one of the underlying values of our Bill of Rights', Langa CJ has recently written, in the course of upholding a claim for reasonable accommodation of a cultural practice in an otherwise commendable school dress code. Langa CJ quoted in support the words of Ackermann J's minority judgment in Ferreira: 'To deny people their freedom is to deny them their dignity'.
Author Francois Du BoisSource: Acta Juridica 2008, pp 112 –148 (2008)More Less
One of the most striking features of South Africa's constitutional vocabulary is that 'dignity' enjoys considerably more prominence than 'freedom'. To be sure, the Constitution itself, and therefore also court decisions and legal treatises, list an impressive number of freedoms. However, whereas legal discourse emphasises that the role of human dignity is not confined to the express constitutional right in which it features but suffuses the Bill of Rights as a whole as a - indeed, as the - constitutional value, individual freedom remains tied to its specific manifestations and is given a restrictive interpretation.
Author Sandra LiebenbergSource: Acta Juridica 2008, pp 149 –176 (2008)More Less
Freedom is one of the foundational constitutional values in the 1996 Constitution. When interpreting the Bill of Rights, a court must 'promote' this value along with the other two foundational values of human dignity and equality. These values also serve as the lodestar in guiding the interpretation of legislation, the development of the common law and customary law, as well as for assessing the justifiability of limitations to the rights in the Bill of Rights.
Author Anton FaganSource: Acta Juridica 2008, pp 177 –184 (2008)More Less
In the case of Ferreira v Levin NO, Justice Laurie Ackermann seemed to make the assumption that the political right to freedom is best explained, and its content therefore best determined, by the fact that all human beings have dignity. That is, he seemed to assume that dignity and the fact that human beings necessarily possess it provide the key to an understanding of the political right to freedom. This is, I think, an assumption made by many. The aim of this essay is to question its validity.
Author Theunis RouxSource: Acta Juridica 2008, pp 185 –203 (2008)More Less
The question I want to explore in this contribution is whether there is any non-accidental connection between the two main themes of Laurie Ackermann's constitutional jurisprudence: on the one hand, his concern for human dignity, and, on the other, his often masterful demonstration of the usefulness and relevance of comparative constitutional law. Ackermann, as we know, was the foremost exponent of the relevance of human dignity to South African constitutional law, both as a justiciable right and as a value informing the entire Bill of Rights. Is there a connection between that part of his judicial oeuvre and the other main theme that runs through his constitutional jurisprudence - a commitment to taking up the post-apartheid Constitutions' invitation to apply foreign law?
Author Roger BerkowitzSource: Acta Juridica 2008, pp 204 –218 (2008)More Less
Justice Laurie Ackermann's decision in Ferreira is a study in tonal dissonance. Ackermann's 232 paragraph judgment begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.
Author Peggy Cooper DavisSource: Acta Juridica 2008, pp 239 –253 (2008)More Less
The South African Constitution explicitly instructs its interpreters to look to the rulings of other nations and to those of international tribunals for guidance. This cosmopolitan stance is an admirable example of the wisdom of constitutional judgments in the new South Africa. Taking such a stance, I dare say that you will find a great deal to emulate - in the United States and elsewhere. But in taking this stance you will, I imagine, draw as much wisdom from the mistakes of other nations as from their successes. Justice Ackermann, whose work is honoured here, has described South African constitutionalism as appropriately 'reactive' to the history of apartheid.
From heteronormativity to full sexual citizenship? : Equality and sexual freedom in Laurie Ackermann's constitutional jurisprudenceAuthor Pierre De VosSource: Acta Juridica 2008, pp 254 –272 (2008)More Less
The two judgments of Laurie Ackermann in the first and second National Coalition cases are in many respects remarkable documents. They engage in an intellectually rigorous and sometimes provocative way with the question of sexual-orientation discrimination and extend legal protection for many individuals who experience same-sex sexual and emotional desire. The judgments also pose significant questions about the way in which the law can and should deal with sexual identity and questions traditional notions of a fixed homosexual identity - particularly in the South African context.
Author A.J. Barnard-NaudeSource: Acta Juridica 2008, pp 273 –297 (2008)More Less
In his decision in Ferreira v Levin NO, Justice Ackermann - inspired by Berlin - appears to favour the negative conception of freedom. Yet at the same time Ackermann insists that 'a broad and generous interpretation of freedom does not deny or preclude the constitutionally valid, and indeed essential, role of state intervention in the economic as well as the civil and political spheres.'