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1.
A. J. Barnard 《Law and Critique》2006,17(2):153-170
The aim of this paper is to identify the possible substructure (looking glass/es) of a critical legal argument for contractual
justice (Wonderland) in the South African law of contract. South African contract law still fails, ten years after the constitutional
transformation, to reflect the constitutional ideals of freedom, equality and human dignity in an acceptable manner. I argue
that this disposition places a question mark over the legitimacy of contract law and marginalizes opportunities for the social
change envisaged by the Constitution. The paper explores Duncan Kennedy’s Form and Substance-argument and indicates that the
reluctance to accommodate these values may be attributable to the fact that the majority of role-players position themselves
on the individualism/rules side of Kennedy’s continuum – a paradigm that perceives the law of contract as a body of positivistic
rules to be applied neutrally and regardless of the social or socio-economic distortions its application may generate. In
an attempt to move away from this traditional approach, the privileged paradigm is criticised. A typical CLS-approach is followed
which employs sociology, psychological jurisprudence and game theory to criticise the law from outside the restrictive realms
of law itself. Simultaneously, I attempt to illuminate the argument for a shift (step through the looking glass) to another
paradigm. I conclude that our judiciary finds itself in a position similar to that of Plato’s prisoners in the cave and will
not reach the point where they apply relevant (constitutional) values directly to contractual disputes. The State is thus
responsible for infusing contract law with contractual justice, by implementing legislation to this effect in order to limit
the hegemonic consequences of the judiciary’s obsession with freedom of contract and utopian rules, which fail in reality
to further the ideal of justice.
Paper presented at the Critical Legal Conference, 4 September 2004, London, UK. This paper is dedicated to the memory of the
late Judge of Appeal, Mr. Justice P.J. Olivier. The paper is based on research conducted for the thesis in partial fulfilment
of the degree LLD in the Faculty of Law at the University of Pretoria under the title ‘A critical legal argument for contractual
justice in the South African law of contract.’ The degree supervisor is Professor Karin van Marle in the Department of Legal
History, Comparative Law and Jurisprudence. The author wishes to thank the following persons for valuable deliberations and
input: Karin van Marle, Graham Bradfield and Anashri Pillay. In addition, the author wishes to acknowledge and thank the University
of Cape Town for financially supporting this research.
†Paper presented at the Critical Legal Conference, 4 September 2004, London, UK. This paper is dedicated to the memory of
the late Judge of Appeal, Mr. Justice
P.J. Olivier. The paper is based on research conducted for the thesis in partial
fulfilment of the degree LLD in the Faculty of Law at the University of Pretoria
under the title ‘A critical legal argument for contractual justice in the South African
law of contract.’ The degree supervisor is Professor Karin van Marle in the
Department of Legal History, Comparative Law and Jurisprudence. The author
wishes to thank the following persons for valuable deliberations and input: Karin
van Marle, Graham Bradfield and Anashri Pillay. In addition, the author wishes to
acknowledge and thank the University of Cape Town for financially supporting this
research. apply relevant (constitutional) values directly to contractual disputes. The State is
thus responsible for infusing contract law with contractual justice, by implementing
legislation to this effect in order to limit the hegemonic consequences of the judiciary’s
obsession with freedom of contract and utopian rules, which fail in reality to
further the ideal of justice. 相似文献
2.
Catherine E. Ross 《Journal of Quantitative Criminology》1993,9(2):159-175
Fear of victimization may have consequences for subjective well-being. I develop and test a model linking fear of victimization to subjective health. I hypothesize that two processes link fear to subjective health-psychological and behavioral. Specifically, I hypothesize that fear of victimization increases psychological distress, and fear decreases outdoor physical activity, especially walking. High levels of psychological distress and low levels of walking, in turn, are associated with poor self-reported health. I find empirical support for the hypothesized processes in a representative national sample of 2031 adults aged 18 to 90 interviewed by telephone in 1990. The negative association between fear and health is explained largely by psychological distress and walking. However, a significant direct effect remains. I conclude with suggestions for future research linking crime and health, focusing on the need for collecting information on community disorganization. Community context is likely the ultimate exogenous variable-the one that sets in motion the destructive cycle of fear, distress, inactivity, and poor health described here. 相似文献
3.
Hispanics and the death penalty: Discriminatory charging practices in San Joaquin County, California
Catherine Lee 《Journal of criminal justice》2007,35(1):17
Following reinstatement of the death penalty after the Supreme Court's decision in Gregg v. Georgia (1976), social scientists carefully documented evidence of racial and gender bias against defendants and victims at all stages of the death penalty system, from charging to conviction and sentencing. Despite these consistent findings, questions remained. One crucial unknown was whether or not racial bias uncovered in investigations of African Americans and Whites also negatively impacted members of other minority groups, in particular the largest minority group in the U.S.-Hispanics. Are Hispanics, as both victims and defendants, treated more like non-Hispanic Whites or African Americans? This research examined all death-eligible homicides in San Joaquin County, California from 1977 through 1986. Using logistic regression analysis, the investigation uncovered patterns of racial and gender bias, finding defendants in Hispanic victim cases were less likely to face a death-eligible charge than defendants in White victim cases. Evidence of discrimination may have implications for how Hispanic integration and race and ethnicity are understood and for evaluating the success of statutory reforms designed to insure fairness and constitutionality of the death penalty. 相似文献
4.
5.
This article uses Hans Kelsen's theory of a legalsystem to take a fresh look at European Community law,and the relationship between the European Community,its Member States, and international law. It arguesthat the basis of the Community's legal legitimacy isindeterminate, and offers a model to accommodate thatindeterminacy. This model is founded on aconstructivist approach suggested to be particularlyuseful in the EC context. Using this approach, it isargued that the concepts of system, autonomy andsovereignty in the Community can only be understoodthrough the recognition of a plurality of viewpoints,and that it is crucial, in describing the Community,to distinguish between a concept per se and thechoice to adopt that concept. 相似文献
6.
The Iran-Contra affair is an example of the type of event that is expected to give rise to a rally of public opinion behind the president. However, the public's response to this event, uncharacteristically, was a sharp decrease in support for President Reagan. This case study constitutes an attempt to explore the sources of the public opinion response to foreign policy events. Statements of political elites, news coverage and commentary, and public opinion assessments are examined to test the patriotism, priming, and opinion leadership explanations of the rally phenomenon. The actions of opinion leaders appears to provide the best explanation of the differential public response to the Iran-Contra affair. 相似文献
7.
8.
Ms Catherine Hurley Professor Fran Baum Ms Helen van Eyk 《Australian Journal of Public Administration》2004,63(2):31-41
This article presents a case study of a project known as 'Designing Better Health Care in the South' that attempted to transform four separately incorporated health services in southern Adelaide into a single regional health service. The project's efforts are examined using Kotter's (1996) model of the preconditions for transformational change in organisations and the areas in which it met or failed to meet these preconditions are analysed, using results from an evaluation that was commenced during the course of the attempted reform. The article provides valuable insights into an attempted major change by four public sector health organisations and the facilitators and barriers to such change. It also examines the way in which forces beyond the control of individual public sector agencies can significantly impact on attempts to implement organisational change in response to an identified need. This case study offers a rare glimpse into the micro detail of health care reform processes that are so widespread in contemporary health services but which are rarely systematically evaluated. 相似文献
9.
Catherine Albert-Roulhac 《管理》1998,11(2):209-230
This article explores the impact European Union (EU) integration has had on methods and processes of budgeting in France and Britain from 1970 to 1995. It assesses whether convergence of budgetary institutions occurs and, if so, whether it is promoted by an obligation of compliance or by an hybridization effect. Compliance refers to changes in national budgetary institutions made compulsory by membership in the EU. Hybridization emphasizes that national and EU budgetary processes are increasingly interwoven and indivisible. Public budgeting is no longer purely national because part of the decision-making on national expenditure is made at the EU level and because the national budget is closely linked to the EU budget in financial and policy terms. Based on an institutional analysis, combined with elite interviewing, the article suggests that hybridization is a significant factor contributing to a convergence of budgetary practices in Britain and France. Underlying the argument is the fact that an increasingly important function of departmental actors involves negotiating with their EU counterparts at the EU level, in addition to the conventional budgetary game at the domestic level. Regarding compliance, there is an influence as testified by significant formal institutional convergence. However, compliance seems a less effective factor in influencing convergence than hybridization because it conveys a "negative" approach to convergence, based on enforcement and sanctions. The article suggests that the convergence of administrative systems is promoted by the growing similarity of administrative practices more than by the harmonization of rules. 相似文献
10.
The debate over land law reform in Africa has been framed asa referendum on the market – that is, as a debate pittingadvocates of the growth-promoting individualization of propertyrights against those who call for protecting the livelihoodsand subsistence rights of small farmers. This article arguesthat the prospect of land law reform also raises a complex bundleof constitutional issues. In many African countries, debatesover land law reform are turning into referenda on the natureof citizenship, political authority, and the future of the liberalnation state itself. The article describes alternative landreform scenarios that are currently under debate, and identifiesthe constitutional implications of each. The practical salienceof the issues is illustrated through reference to land reformpolitics in Côte dIvoire, Uganda, South Africa,and Tanzania. 相似文献