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Private Law and Human Rights

Bringing Rights Home in Scotland and South Africa

Edited by Elspeth Reid, Daniel Visser

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A comparative investigation into the revolution in private law in the era of human rights

Scotland and South Africa are mixed jurisdictions, combining features of common law and civil law traditions. Over the last decade, a shared feature in both Scotland and South Africa has been a new and intense focus on human rights.

In Scotland, the European Convention on Human Rights now constitutes an important element in the foundation of all domestic law. Similarly, the Constitution of the Republic of South Africa, adopted in 1996, has a Bill of Rights as its cornerstone. This binds the legislature, the executive, the judiciary and all organs of state - and also private parties.

In some ways, the Scottish and South African experience could not be more dissimilar, and the ‘constitutional moments’ from which these documents sprang were very different. At the same time, the parallels are close and compelling. This book, written by experts from both jurisdictions, examines exactly how human-rights provisions influence private law, looking at all branches of the subject. Moreover, it gives a unique perspective by comparing the approach in these kindred legal systems, providing a benchmark for both.

Contents

Preface
Contributor List
Table of Cases
Table of Statutes
Introduction, Elspeth Reid and Daniel Visser
2: Private Law in the Age of Rights, François Du Bois
3: The Politics of Private Law: Sexual Minority Freedom in South Africa and Scotland, Jaco Barnard-Naudé
4: Child Law: Respecting the Rights of Children, Elaine E Sutherland
5: Property Deprivation of an Absentee in Emulation of the Laws of Succession: The Laws of Scotland and South Africa Compared, Roderick R M Paisley
6: The Right to Personal Security, Anton Fagan
7: Privacy, F D J Brand
8: Defamation and Freedom of Expression, Jonathan Burchell
9: Strict Liability, Max Loubser
10: Liability of Public Authorities and Public Officials, John Blackie
11: Nuisance, Hanri Mostert
12: Contract Law and Human Rights, Peter Webster
13: Principles, Policy and Practice: Human Rights and the Law of Contract, Sheldon Laing and Daniel Visser
14: Juristic Persons and Fundamental Rights, Ross Gilbert Anderson
15: Examining the Labour Law & Social Dimension of Human Rights: The UK & South Africa, David Cabrelli
16: Rights in Security, Andrew J M Steven
17: Access to credit, the law of suretyship and unfair suretyships, J T Pretorius
18: The Human Right of Property in Land Law: Comparing South Africa and Scotland David Carey Miller
19: The Margin of Appreciation Doctrine of the European Court of Human Rights: Protection of Ownership and the Right to a Home
J M Milo
20: Environment and Human Rights: The Right to Water in South Africa and Scotland, Loretta Feris and John Gibson
Index.

About the Author

Elspeth Reid is Professor of Scottish Private Law at the University of Edinburgh. She has published extensively in Scotland and abroad on comparative private law themes, including in particular the law of delict/tort. She is the Series Editor of the Edinburgh Studies in Law monograph series.

Professor Daniel Visser is Professor of Private Law at the University of Cape Town and currently Deputy Vice-Chancellor at UCT. His main work has been in the law of unjustified enrichment, comparative law and legal history. He was co-editor of the South African Law Journal from the end of 1999 until he took up his present post and he continues to serve on the boards of various scholarly journals. He has more than a 100 publications to his credit, including several books, of which Unjustified Enrichment (2008) counts as his most important contribution. He is a member of the Academy of Science of South Africa and of the World Academy of Arts and Science, an associate member of the International Academy of Comparative Law and a Fellow of the University of Cape Town.

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