South Africa's Experience in Constitution-Building
This chapter draws on a brief history of the constitution-making process in South Africa to highlight five particular aspects of constitution-building. Noting that the process of constitution-making has become a key element in political transitions and post-conflict settlements in the post-cold war era, it is argued that the process of building a constitutional democracy encompasses a far broader range of issues than the drafting and adoption of a new constitution. The chapter identifies and discusses five sources of variation in constitution-building processes that impact the different issues enabling the building of a constitutional democracy. First, there is a temporal dimension, which may be characterised as being both macro and micro in scope, in that the general historic timing of a democratic transition as well as the specific time-frames within the process of constitution-making, all have clear consequences for the choices available to the parties. Second, there is a question of process in which the specific process of constitution-building, chosen from a range of historic options, is deployed by the parties to achieve specific advantages over their opponents but can also serve as a means to ensure that the political transition proceeds. Third, participation in the constitution-building process is an aspect that is important both for those who are active in the actual constitution-making process as well as the broader society that is called upon to accept and legitimate the constitutional product as the basis of a future social compact. Fourth, the recognition and use of constitutional principles is an important element of constitution-building in this era. Finally, the substantive choices inherent in a constitution-building process involve alternative institutional designs and substantive elements of the constitution, all of which have a significant impact on the overall process of constitution-building.
The impact of implied constitutional principles on fundamental rights adjudication in common law jurisdictions
This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.
Factors Likely to Influence Tort Litigation in the European Union
As the European Union moves towards harmonization in a variety of business, political, and regulatory settings, an opportunity exists to influence the form of tort liability found in these nations. The opportunity should not be missed, with rising concern that U.S. influences will set into motion costly litigiousness, particularly as EU member nations pull back on the level of social programmes available to cover costs typically included in tort claims. To assist policymakers in their deliberations about European Union tort directives, this paper provides discussion of the frequently cited key differences between the U.S. tort systems and what is found in most EU member nations. The discussion is focused on available evidence regarding the influences of these differences as well as important areas of future research. The most important areas seem to be (1) the need to enforce European Law when no defined regulatory body exists for this purpose; (2) the connection between government social programmes and the need for tort liability compensation; (3) and the influence of rules governing payment of legal costs and lawyer fees.