To Wonderland Through the Looking-glass: Conceiving a Critical Legal Argument for Contractual Justice in the South African Law of Contract †

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.     

Fear of victimization and health

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.     

Roentgen imaging of stab wounds in parenchymatous organs

Stab wounds were made in parenchymatous organs (e.g. liver, spleen, kidneys, lungs) using a variety of instruments. The shape of the resulting canal was investigated by X-ray analysis after introduction of an X-ray contrast medium. The best contrast was obtained using a contrast medium containing barium. The shape of the canal gave a direct representation of the outline of the instrument used. The width of the canal was however, always several millimeters smaller than the corresponding blade of the instrument. The position of the blade back in single-edged blades could be demonstrated with stronger contrast.     

When ADR becomes the law: A review of federal practice

Conclusion With the passage of the Administrative Dispute Resolution Act, the stage was set for innovation and change in federal agencies. Now, part way into the five-year life of the Act, a new administration has the potential to encourage even wider use of ADR at the federal level, providing still more examples from which to develop a clearer sense of best practice. Additional funds, both for ACUS and individual agencies, are vital to providing the level of experimentation, innovation, and documentation needed to ensure success.MIT ProfessorLawrence E. Susskind is director of the MIT-Harvard Public Disputes Program, 512 Pound Hall, Harvard Law School, Cambridge, Mass. 02138.Eileen F. Babbitt is associate director of the Public Disputes Program.Phyllis N. Segal is a practicing mediator with Endispute, Incorporated.The authors would like to acknowledge the federal dispute resolution specialists who contributed greatly to our work by providing interviews and materials for this article: Cathy Costantino of FDIC; David Batson of EPA; John Settle and Ron Walczak of HHS; David Drabkin of DLA; Jim Jones of DOL; Sheldon Guttman of FCC; Charles Pou of ACUS; Jeff Domber of GSA; and Diane Liff of DOT.     

Towards Effective Collective Security and Human Rights Protection in Africa: An Assessment of the Constitutive Act of the New African Union

Netherlands International Law Review -