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9780198256663

In a Time of Trouble Law and Liberty in South Africa's State of Emergency

by
  • ISBN13:

    9780198256663

  • ISBN10:

    0198256663

  • Format: Hardcover
  • Copyright: 1992-05-14
  • Publisher: Clarendon Press

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Summary

Can the law really protect human rights when they are most under siege? During much of South Africa's state of emergency, the country's highest court grimly rejected efforts to use the law to restrain emergency power. This work examines the intersection between law and emergency power in South Africa. Ellmann begins with an outline of the legal framework that exists in South Africa, pointing out the capacity it has to mitigate the excesses of the legislators' designs. He continues by demonstrating through the judges decisions that, with few exceptions, they repeatedly vindicated the emergency powers. Ellmann suggests that though a legal tradition existed for the protection of human rights, it was denied as a result of certain judges' decisions. This study teaches that law is no guarantee of liberty, but it can help slow the march of oppression.

Table of Contents

Abbreviations
Introductionp. 1
South African Internal Security Law: Constitutional Framework and Statutory Designsp. 11
Parliamentary Supremacy and the Constricted Field of Judicial Review of Legislationp. 12
South African Internal Security Statutesp. 15
Hurley's Case and the Doctrinal Basis for Human Rights Jurisprudence in South Africap. 26
Hurley and the Character of Legislative Intention in South Africap. 28
The Interpretation of Intentionp. 32
The Rabie Court and the Judicial Protection of the State of Emergencyp. 57
The Rabie Erap. 57
The Rights Deniedp. 71
The Rabie Court's Protection of Human Rightsp. 115
The Rights Not Lostp. 116
The Rights Protectedp. 118
The Demands of the Emergency against the Claims of Human Rightsp. 129
The Corbett Court and the Emergencyp. 139
The Change in the Court's Decisionsp. 142
The Common Doctrinal Ground of the Corbett and Rabie Courtsp. 153
The Immediate Causes of the Change in the Court's Approachp. 158
Explaining the Court's Performance: Visions of Law in South Africap. 163
The Rabie Court: Adherence to Law in South African Culturep. 165
The Corbett Court: The Bar and the Judiciary as Carriers of a Human Rights Traditionp. 205
Conclusionp. 244
Lawyers against the Emergencyp. 248
Lawyers' Moral Responsibility for Their Workp. 250
The Value of Emergency Law Workp. 253
Conclusionp. 268
Indexp. 275
Table of Contents provided by Blackwell. All Rights Reserved.

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