New Situations Demand Old Magic

2017 ◽  
Author(s):  
Nicholas Rush Smith
Keyword(s):  
South Africa ◽  
Legal System ◽  
Due Process ◽  
Legal Order ◽  
Collective Violence ◽  
South Africans ◽  
Procedural Due Process ◽  
State's Rights ◽  
Procedural Rights ◽  
Due Process Rights

Nicholas Rush Smith’s chapter explores collective violence in postapartheid South Africa, where vigilante violence involving an attempt to necklace alleged criminals has been common. That the necklace--placing a gasoline filled tire around the neck of a victim and setting it alight--is frequently deployed is surprising, Smith asserts, because the struggle against apartheid was, in important ways, a struggle for a procedural rights-based legal system, something necklacing undermines. Moreover, necklacing was originally developed as a tool to sanction political threats under apartheid, whereas today it is primarily used as a technique to punish criminals. Why, Smith asks, is necklacing still practiced twenty years after the dawn of democracy given that it was first implemented as part of the struggle against apartheid? Smith’s chapter argues that citizens deploying the necklace challenge the postapartheid state’s-rights-based legal system, which South Africans often argue enables insecurity and immorality, to proliferate; rhetorically and ideologically, this in some ways parallels the criticisms that American lynchers often made of procedural, due process rights. Through its spectacular violence, the necklace dramatizes these critiques of the democratic legal order much like it dramatized critiques of the apartheid state.

“Negro and White Unite”

2017 ◽  
Author(s):  
Dean J. Kotlowski
Keyword(s):  
South Africa ◽  
Legal System ◽  
Due Process ◽  
Legal Order ◽  
Collective Violence ◽  
South Africans ◽  
Procedural Due Process ◽  
State's Rights ◽  
Procedural Rights ◽  
Due Process Rights

Nicholas Rush Smith’s chapter explores collective violence in postapartheid South Africa, where vigilante violence involving an attempt to necklace alleged criminals has been common. That the necklace--placing a gasoline filled tire around the neck of a victim and setting it alight--is frequently deployed is surprising, Smith asserts, because the struggle against apartheid was, in important ways, a struggle for a procedural rights-based legal system, something necklacing undermines. Moreover, necklacing was originally developed as a tool to sanction political threats under apartheid, whereas today it is primarily used as a technique to punish criminals. Why, Smith asks, is necklacing still practiced twenty years after the dawn of democracy given that it was first implemented as part of the struggle against apartheid? Smith’s chapter argues that citizens deploying the necklace challenge the postapartheid state’s-rights-based legal system, which South Africans often argue enables insecurity and immorality, to proliferate; rhetorically and ideologically, this in some ways parallels the criticisms that American lynchers often made of procedural, due process rights. Through its spectacular violence, the necklace dramatizes these critiques of the democratic legal order much like it dramatized critiques of the apartheid state.

Of General Principles and Trojan Horses — Procedural Due Process in Immigration Proceedings under EU Law

2010 ◽  
Vol 11 (9) ◽  
pp. 1006-1024 ◽  
Author(s):  
Jürgen Bast
Keyword(s):  
Decision Making ◽  
Legal Status ◽  
Due Process ◽  
Legal Order ◽  
Fundamental Rights ◽  
Eu Law ◽  
Procedural Due Process ◽  
Scope Of Application ◽  
Legal Position

AbstractThe present paper concerns procedural guarantees in immigration proceedings, thus addressing the broader question of the role of the general principles of EU law in respect of administrative decision-making. The main assertion is that certain requirements of procedural due process are recognized in EU law as fundamental rights. They must therefore be observed by Member State authorities when decisions significantly affecting the legal position of a person are taken, provided that the decision is at least partly determined by EU law. The relevant immigration proceedings involve measures related to the termination of residence as well as decisions related to denial or loss of a particular legal status. In effect, the actual scope of application of the EU's administrative fundamental rights is determined by the actual scope of activity of the European legislator. The author concludes that even a relatively ‘shallow’ harmonization of laws can lead to a ‘deep’ reshaping of the domestic legal order, by becoming a Trojan Horse for fundamental rights heretofore alien to some national immigration regimes.

scholarly journals MARIKANA, A PAST NEVER TRULY ESCAPED: A CRITIQUE ON THE COMMODIFICATION OF THE LEGAL SYSTEM AND THE LAW AS AN INSTRUMENT OF JUSTICE IN POST-APARTHEID SOUTH AFRICA

2017 ◽  
Author(s):  
Vaughn Rajah
Keyword(s):  
South Africa ◽  
South African ◽  
Legal System ◽  
Historical Context ◽  
African Society ◽  
The Rule Of Law ◽  
South African Society ◽  
South Africans ◽  
Black South Africans ◽  
History Of

This article demonstrates that the Marikana tragedy was not a departure from the norm, but a continuation of state and corporate behaviour that has oppressed black South Africans for hundreds of years. This will be done through an analysis of the historically discriminatory socio-economic patterns of South African society, and how they subjugate the poor by limiting their access to legal and physical protection. These trends portray a history of commodification of the legal system. I discuss a notable documentary on the massacre, Miners Shot Down, and examine its depiction of the causes and effects of the events. The film provides no mention of the historical context of the killings, nor does it comment on many of the factors contributing to the massacre. Despite this, it succeeded in bringing the events to the attention of the broader public. I analyse the notions of justice, the rule of law and their application in South Africa as well as norms in the nation’s legal culture. Additionally, I examine the Farlam Commission, and how its procedures and conclusions hindered the course of justice in the context of our democracy. Ultimately, I demonstrate how the Marikana massacre was not a change in dynamic, but a reminder of a past we have never truly escaped.

A century of Procedural Due Process Guarantees in Constitutions Worldwide

1993 ◽  
Vol 14 (2) ◽  
pp. 3-52
Author(s):  
Alex Inkeles ◽  
Jon C. Hooper
Keyword(s):  
Content Analysis ◽  
Due Process ◽  
Family Education ◽  
Nation States ◽  
Procedural Due Process ◽  
Institutional Structures ◽  
The Family ◽  
The World ◽  
Due Process Rights ◽  
Over Time

We here report the results of a content analysis focussed on the due process rights or guarantees which were provided to citizens under all the national constitutions extant in the world at 20 year intervals during the period from 1870 to 1970. Our study had three objectives. First, we sought to test the assumption that the granting of procedural guarantees by national constitutions was. over time, both being expanded within countries and being diffused worldwide across all countries, thus providing additional examples of the tendency for institutional forms to diffuse around the world and consequently for nation states to converge in their institutional structures and practices, tendencies already observed and documented in other realms such as the family, education, and retirement.

scholarly journals Nuremberg: Procedural due process at the International Military Tribunal

2021 ◽  
Author(s):  
◽  
Tessa McKeown
Keyword(s):  
Due Process ◽  
Second World War ◽  
Upper Echelon ◽  
International Military Tribunal ◽  
Procedural Due Process ◽  
Military Tribunal ◽  
War Criminals ◽  
History Of ◽  
Due Process Rights ◽  
Second World

<p>For over sixty years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945–1946). This paper argues that the defendants’ procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in attempt to secure a fair trial for the twenty-two defendants. This paper examines the history of fundamental due process rights (recognised in both continental Europe and common law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. This paper further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.</p>

scholarly journals The Nuremberg Trial: Procedural Due Process at the International Military Tribunal

2014 ◽  
Vol 45 (1) ◽  
pp. 109 ◽  
Author(s):  
Tessa McKeown
Keyword(s):  
Due Process ◽  
Second World War ◽  
Upper Echelon ◽  
International Military Tribunal ◽  
Procedural Due Process ◽  
Military Tribunal ◽  
War Criminals ◽  
History Of ◽  
Due Process Rights ◽  
Second World

For over 60 years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945–1946). The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in an attempt to secure a fair trial for the 22 defendants. This article examines the history of fundamental due process rights (recognised in both Continental Europe and Common Law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. It argues that the defendants' procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. This article further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.

Sign in / Sign up

Export Citation Format

Share Document