Married Women Bankrupts in the Age of Coverture

Many married women with separate property held their property as stock-in-trade and traded independently from their husbands. However, if the business failed, a married woman trader's ability to take advantage of bankruptcy process depended on the exception to coverture according to which she held her separate property. This article is the first to examine reported bankruptcy cases involving married women in their doctrinal context and in relation to other exceptions to coverture. It analyzes the issues arising in the eighteenth century and argues that they should be understood in relation to the larger picture of married women's law, especially the law of private separation. The article also considers the oblique relationship between private separation jurisprudence and married women's bankruptcy in the nineteenth century, a relationship that was bridged by a line of cases that, on the surface, seem to be unrelated.     

Dignity and Equality

Inequality remains one of the most challenging issues on theglobal human rights agenda. It is widely recognised that a formalapproach to the assessment of inequality has failed to eliminateentrenched structural social and economic inequality and thata different approach is required in order to tackle the rootsof inequality and achieve substantive equality. In seeking toimplement an approach to equality that addresses the historyof apartheid and the social and economic inequality endemicin South African society, the South African Constitutional Courthas rejected formal equality, and is in the process of developinga substantive interpretation of equality based on the protectionof human dignity. Critics of this approach have argued thatthe concept of human dignity is too indeterminate to providea stable foundation for equality law and that it promotes anexcessively individualistic conception of equality. Focussingon key developments in defining human dignity in German andSouth African constitutional law, this article argues that theconcept of dignity is rooted in a rich tradition which is capableof underpinning an approach to equality which avoids excessiveindividualism and fully recognises the interplay between individualand community needs. A detailed exploration of the equalityjurisprudence of the South African Constitutional Court revealshow the dignity-based approach has been developed in order toprovide a framework within which the actual experience of victimsof discrimination can be explored. It is concluded that thisapproach has the potential to engage with the realities of thewide range of divisions within South African society and theireffects in order to address not only the legacy of apartheidbut also to contribute to the creation of a society in whichevery person is valued equally.     

不失尊严的死亡：选择与挑战

虽然绝症患者可以拒绝医治的权利已被确立,但在医生的辅助下实施“自杀”仍然是人们长期争议的一个热点话题。在美国,人们认为他们有权利按照自己选择的生活方式自由自在生活的同时,大多数人却没有意识到,当选择以安乐死来解脱被无法治愈疾病折磨的痛不欲生的生命时,这种自由权     

Overcoming Doctrinal School Thought: A Unifying Approach to Human Dignity

The concept of human dignity is criticized due to its vagueness, but by discussing the most important schools of thought, we can identify a core meaning that is common to most understandings of human dignity: Whether we conceptualize human dignity in terms of autonomy, self‐respect, social acts, or equal status, we always refer to some kind of personal identity. This personal identity consists in those aspects that we consider to be constitutive of our individual personality. Instead of remaining within doctrinal school thought, this core meaning can be taken as a common denominator for human dignity discourse.     

Human Dignity and Socio-Economic Rights

The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identification of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers.     

国家权力与人的尊严

国家权力也有尊严,但不能高于人的尊严,更不能建立在侵犯人的尊严基础之上。侵犯人的尊严有私人间的个体侵犯、当权者的侵犯、"上位者"的侵犯、多数人的侵犯等等。国家权力直接侵犯或参与侵犯人格尊严往往危害更大,而最严重的侵犯人格尊严多发生在国家权力与民间联手之时。宪法保障人格尊严意味着国家权力不仅不能侵犯人的尊严,还有保障人的尊严之义务。     

State Powers and Human Dignity

国家权力也有尊严,但不能高于人的尊严,更不能建立在侵犯人的尊严基础之上.侵犯人的尊严有私人间的个体侵犯、当权者的侵犯、“上位者”的侵犯、多数人的侵犯等等.国家权力直接侵犯或参与侵犯人格尊严往往危害更大,而最严重的侵犯人格尊严多发生在国家权力与民间联手之时.宪法保障人格尊严意味着国家权力不仅不能侵犯人的尊严,还有保障人的尊严之义务.     

Dignity Takings and Dignity Restoration: Creating a New Theoretical Framework for Understanding Involuntary Property Loss and the Remedies Required

In We Want What's Ours: Learning from South Africa's Land Restitution Program, I introduced the concept of “dignity takings,” which I defined as property confiscation that involves the dehumanization or infantilization of the dispossessed. I argued that the appropriate remedy for a dignity taking is “dignity restoration”: material compensation to dispossessed populations through processes that affirm their humanity and reinforce their agency. For this symposium, contributors were invited to examine these paired concepts through case studies beyond the South African context. This introductory essay summarizes the central arguments of We Want What's Ours and considers how the symposium contributions confirm, extend, or revise the concepts of dignity takings and dignity restoration.     

Clearing the Innocent: Guarantees of Personal Honor and Dignity

The measures of compulsion used to protect the interests of the state and society significantly constrain the rights of citizens suspected or accused of committing crimes. These constraints are necessary and justified. By its essence, compulsion by the state expresses application of the power to wield authority and in the given case affects the constitutional right of citizens to inviolability of the person. It is very important that such authority be used with adherence to legal and moral norms and with the greatest caution and tact. Toward this end guarantees of legality in the work of the agencies of police investigation, preliminary investigation, the procuracy, and the courts are being constantly strengthened and broadened. Their forms and methods of work are being improved, and the levels of political ideology and professionalism of officials so engaged are being raised. Guidance of criminal investigation has been improved, and criminal liability has been established for handing down a deliberately unjust verdict, making a knowingly illegal arrest or detention, and for the use of compulsion to testify.     

Republican Dignity: The Importance of Taking Offence

This paper analyses the republican notion of non-domination from the viewpoint of individual dignity. It determines the aspect of individual dignity that republicans are concerned with and scrutinises how it is safeguarded by non-domination. I argue that the notion of non-domination as it is formulated by Pettit contains a number of ambiguities that need to be addressed. I discuss these ambiguities and argue for specific solutions that place great importance on a person’s moral beliefs and his status as a moral being amongst others. Furthermore, I argue that the impunity interpretation is to be favoured over the immunity interpretation of non-domination. I show that whilst these solutions accord well with many important republican tenets, they have other implications that contradict known republican positions. In particular, I show there is both room and a need for retributivism within republicanism.     

Dignity Takings and Dispossession in Israel

This article examines the concept of dignity takings, as developed by Bernadette Atuahene, and its applicability to the Israeli situation, focusing on takings from the Arab‐Palestinian minority in Israel. Although I find dignity takings a valuable concept, as it emphasizes the interconnections between land dispossession and the denial of human dignity, I offer some qualifications and suggestions. I then examine the applicability of the concept to the dispossession of Arabs/Palestinians in Israel through two case studies: one, a close reading of the (in)famous Ikrit villagers' dispossession; the other, an examination of the dispossession of Negev (southern Israel) Bedouin citizens of Israel, which takes place, not unlike terra nullius, simultaneously with a denial of this very taking. The article concludes that with some modifications, the concept of dignity taking applies to the situation of Arab/Palestinian citizens of Israel.     

Law's Polyarchy: A Comment on Cohen and Sabel

This comment links Cohen/Sabels' idea of a 'directly-deliberative polyarchy' to the contemporary debate on the deficit in democratic legitimation of the European Union. Within this constitutional-legal debate the conventional options are either to defend a vision of the EU which separates global economic law from national sovereignty, and thus relies on the legitimising powers of free markets, or to regard the legitimation problem (at least under present conditions) as beyond solution: that is to say that any further progress towards an 'ever closer union' would inevitably increase the legitimation deficit, and to suggest that the capacity for political action of the nation state should be protected or restored. This comment seeks to show that the concept of a 'directly-deliberative polyarchy' offers an attractive alternative to these traditional positions because it breaks the stranglehold of the false dichotomy 'global market vs national democracy' and thus permits an extension of the idea of radical democracy to European Supranationalism.     

人格尊严的宪法意义

人格尊严是基本权利的价值核心。①就其本质而言,它是国家的目的,不能被当作国家及社会作用的手段,人对其基本权利的正当行使有自治和自决的权利。就其性质而言,它不是一项具体的基本权利,它与其他基本权利的关系也不完全类同于平等权与其他基本权利之间的关系。就其功能而言,与其他大多数基本权利不同,人格尊严兼有消极和积极两个方面的功能,两者相比,前者居于主导的地位。