Malawi Law Journal - Volume 4, Issue 1, 2010
Volume 4, Issue 1, 2010
Source: Malawi Law Journal 4 (2010)More Less
We are greatly honoured to feature in this issue of the 2010 edition of the Malawi Law Journal a long essay tracking and critiquing the development of the jurisprudence of one of the most respected living legal philosophers, Ronald Dworkin, co-authored by another internationally renowned legal philosopher, Drucilla Cornell. In this essay, Drucilla Cornell and Nick Friedman offer profound insights into the contours of Dworkin's jurisprudence from his Law's empire, through Justice in robs to his forthcoming Justice for hedgehogs. The core of their concern is to provide a basis on which countries that have just emerged from an oppressive past such as those characterised by state sponsored discrimination can construct a fair and just system of laws.
Source: Malawi Law Journal 4, pp 1 –94 (2010)More Less
In this essay we provide a critique of the historical development of the central themes of Ronald Dworkin's work, from Law's empire to his forthcoming book, Justice for hedgehogs. We argue that Dworkin's early work is best understood through a reading of Hegel in order to understand the constitution of the community of principle which is central to Dworkin's interpretive theory. Even on this reading, though, Law's empire still fails to make the decisive break with legal positivism which Dworkin claims it does. However, this break finally appears in Dworkin's recent work. In Justice for hedgehogs, Dworkin develops a comprehensive conception of political morality in which his notion of 'integrity' in the law is ultimately an aspirational ideal of legality rooted in dignity. This is an expressly Kantian turn in his work, which we commend. However, we proceed to critique aspects of Justice for hedgehogs on the basis of what we believe is a proper interpretation of Kant. First, contrary to Dworkin's hesitance on the point, Kant does in deed support one of the key in - sights of the book - that moral duty can not be insulated from the over all project of living well. Secondly, Kant would denounce Dworkin's labelling of his second principle of dignity as the principle of 'authenticity'. And thirdly, Dworkin cannot fully reconcile moral duty with living well until he embraces Kant's demand that we seek a principled harmonisation of our interests with others ex ante, rather than ex post. We conclude our essay by demonstrating that the South African Constitution is exemplary of precisely the aspirational ideal of legality which Dworkin now powerfully defends.
The institution of asylum in Malawi and international refugee law : a review of the 1989 Refugee ActAuthor Tapiwa Shana NkhomaSource: Malawi Law Journal 4, pp 97 –123 (2010)More Less
Since the Mozambican refugee influx into Malawi in the 1980's, Malawi has continued to host diverse populations of refugees. The Refugee Act 1989 is the primary domestic legislation on refugees. Some of its provisions are obsolete, contrary to international law and unconstitutional. There are manifold problems within the Refugee Act which impede its effective implementation, not to mention that the government itself does not take refugee issues seriously in its policy agenda. For refugees to be treated with the dignity they deserve as human beings, the Refugees Act and government policy on refugees need to be revamped and re aligned with the international jurisprudence on refugee rights.
Author Shima BaradaranSource: Malawi Law Journal 4, pp 124 –147 (2010)More Less
Malawi is one of the few countries in the world that explicitly protects the right to be presumed innocent before and during trial in its Constitution. While many countries to day claim to uphold this right, most of them apply it only after trial has commenced - when it is arguably too late for the defendant to prepare an adequate defence. These countries have in effect chosen to prevent crime at the expense of the constitutional liberty of their citizens. While some Malawian courts have generally upheld the presumption of innocence before trial, statutory law allows them to consider the nature of the crime the defendant has allegedly committed in determining whether to grant bail or not. Courts should abide by the precepts of the Constitution and preserve the presumption of innocence before trial to avoid predictions of guilt and detention before trial as a means of crime control. Moreover, stream lining bail procedures for all criminal defendants and involving communities in bail procedures could strengthen the right to liberty and contribute to the fulfilment of the promises of dignity and freedom guaranteed to all individuals in the Constitution.
Author Ronald Kakungulu-MayambalaSource: Malawi Law Journal 4, pp 151 –159 (2010)More Less
In this short article, I review a recently published book by the United Nations (UN) Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, Professor Steven James Anaya, entitled: International human rights and indigenous peoples. James Anaya is the James J Lenoir Professor of Human Rights Law and Policy at the University of Arizona's James E Rogers College of Law. He was appointed as UN Special Rapporteur in March 2008.