Media freedom – journal challenges

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The urgent necessity for an all-encompassing ideal of re­form for South Africa 1

In view of the ironies of the realisation of the democratic ideal, which often do not answer to the exaggerated expectations of the participants, the idea of the regstaat is investigated as an "overriding purpose or transcending value" for reform in South Africa . Important facets emerge with regard to the concept of the regstaat in the legal and political development of the Greeks and Romans w ith the institutionalization of the idea th a t the state is a res publica, and especially the influence of the Roman ius gentium is visible in the legal and political development in Western Europe via the reception of Roman law in the development of the modern differentiated civil law which is based on the fundamental human rights of civil freedom and equality (independent of nationality, public legal status, race, religion etc.) of all people and all societal forms within the territory of the state. A study of the development of the regstaat in England indicates that the institutionalization of the concept of rule of law developed during the "Glorious Revolution" prior to the actual development of the individual political right of the English citizen. Through this it becomes clear that the institutionalization of the regstaat is not necessarily dependent on democracy. While the idea of democracy stresses political freedom and participation, the concept of rule of law goes much further and encompasses not only the sphere of public law (within which political rights constitute apart) but also the sphere of civil law and the curtailment of the power of government with respect to the sphere of internal jurisdiction of the non-state societal forms. Be­ cause of the problems which reform in South Africa faces, the emphasis on political participation for the immediate future can be counter-productive for the institutionalization of the regstaat. The concept of the regstaat which has to be incorporated in a declaration of intent will link reform in South Africa to crite ria of freedom which should be acceptable to all groups and individuals. With the concept of the regstaat as an ideal of reform which should also guide the immediate reforms of the present government, negotiations can be conducted in a more relaxed and less polarized situation - honestly and openly, not only with regard to its institutionalization but also with regard to an eventual time schedule

Books

No Abstrac

Regswetenskap en regsfilosofie: ’n onontkombare vennootskap

In this article the relationship between legal philosophy and legal science is compared with that of a partnership which implies that the partners have distinct reciprocal duties. In such a partnership a reformational approach in legal philosophy has the task of convincing other legal scientists that the former can make a meaningful contribution towards raising the level of legal research and education. This does not mean that legal scientists have to become legal philosophers; they do however, have the responsibility to take cognisance of important basic theoretical insights developed by a reformational legal philosophy. Such an approach could preclude them from attempts to reinvent the legal philosophical wheel, especially if they are prepared to stand on the shoulders of a long array of legal philosophical giants. The application of basic concepts of a reformational legal philosophy should, however, be done in a creative way in order to prevent them from becoming epigones. The danger of legal philosophical systematics becoming an intellectual straitjacket could only be avoided if it remains open (i) towards its own presuppositions, (ii) towards legal reality encompassing positive law and legal principles, (iii) towards other legal theories and (iv) towards other relevant disciplines. Furthermore, the possibility of a secularization of the contributions of a reformational legal philosophy is discussed. In conclusion the need for the acceptance of dynamic supra-arbitrary legal principles and possible contributions of a reformational legal philosophy accepting them, is underlined

Waardes as norme en as meta-norme/beginsels

The fruitfulness and the necessity of the distinction between values and norms and as principles are investigated by way of the theory of political development, the legal philosophical issue surrounding natural law and positivism and the views of Habermas. In political developmental theory questions centring on value gained legitimate relevancy under the influ­ ence of the post-behaviorist approach. The quest for cultural universalia or values as principles became important in this sphere because it seems to be the only way to escape from the syndrome of modernity. Through the rejection of the oppositions and one-sidedness of legal positivism and natural law and with the aid of the distinction between values, norms and principles the productive contribution of this spurious dilemma is high­ lighted and a clearer delineation is given of the concepts legal develop­ ment and structural violence. In conclusion Habermas's distinction between norms and meta-norms is investigated critically and immanent contradictions in his views are pointed out. The central place which this issue has in his thought can be seen as a confirmation of the importance of this distinction. It is relevant for all the normative disciplines which - in contrast to the natural sciences - focus on the role of linguistic, social, ethical, legal and artistic norms valid for human societies

Fundamental rights and the implementation of a bill of rights in South Africa1

In the title of this article reference is made to fundamental rights and not human rights because it is my contention that human rights should be seen as only one category of fundamental rights. In the first section an overview is given of the human and group rights discussion in South Africa and in the second section different strategies regarding the introduction of a bill of rights in South Africa are considered. Against the background of these discussions in the third section, attention is given to the different categories of fundamental rights which could be meaningfully protected in the constitutions of developing states. In the fourth section the importance of the creation of a fundamental rights legal culture in South Africa is reviewed against the backdrop of the constitutional histories of England and France