Concourt 23-10 RH Amicus [I] Legal Principles Addressed and Relied Upon

Excerpts from White Refugee's
First Amicus Filed in Concourt

I. LEGAL PRINCIPLES ADDRESSED AND RELIED UPON:

• A. Multicultural Conflict-of-Laws Substantive Due Process: Clarity & Impartiality
  
  
• B. Bolam Test: Common Law Reasonableness Test: Skill & Competencies
  
  
• C. Political Necessity: Freedom of Speech & Civil Disobedience
  
  
• D. Judicial Activism: A More Searching Judicial Enquiry: Search for Truth
  
  
• E. Ecolaw 101: Laws of Sustainability: Ecological Social Contract

I. LEGAL PRINCIPLES ADDRESSED AND RELIED UPON:

‘Lawyers are either social engineers, or they are parasites. Social Engineer Lawyers aim to eliminate the difference between what the laws say and mean, and how they are applied; whereas legal parasites aim to entrench their parasitism from the difference between what the laws say and mean, and the application of such differences to their parasitic benefit.’ – Prof. Charlie Houston, Howard Law School mentor of Justice Thurgood Marshall, Simple Justice: The History of Brown v. Board of Education[38]

A. Multi-Cultural Conflict of Laws Substantive Due Process: Clarity & Impartiality:

8. Multi-cultural Law Must (a) avoid Mono-cultural legal Hegemony, (b) draw on legal cultural diversity: Opinion of Weeramantry J in Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia)[39], clarifies multi-culti lawmaking:

The need for International law to draw upon Worlds Diversity of Cultures in Harmonizing Development and Environmental Protection

In drawing into international law the benefits of the insights available from other cultures, and in looking to the past for inspiration, international environmental law would not be departing from traditional methods of international law, but would, in fact, be following in the path charted out by Grotius. Rather than laying down a set of principles a priori for the new discipline of international law, he sought them also a posteriori from the experience of the past, searching through a whole range of cultures available to him for this purpose[40].

From them he drew the durable principles which had weathered the ages, on which to build the new international order of the future. Environmental law is now in a formative stage, not unlike international law in its early stages. A wealth of past experience from a variety of cultures is available to it. It would be pity indeed if it were left untapped merely because of attitudes of formalism which see such approaches as not being entirely de rigueur.

I cite in this connection an observation of Sir Robert Jennings that, in taking note of different legal traditions and cultures, the International Court (as it did in the Western Sahara) case:

“was asserting, not negating, the Grotian subjection of the totality of international relations to international law. It seems to the writer, indeed, that at the present juncture in the development of the international legal system it may be more important to stress the imperative need to develop international law to comprehend within itself the rich diversity of cultures, civilizations and legal traditions….”[41]

Moreover, especially at the frontiers of the discipline of international law, it needs to be multi-disciplinary, drawing from other disciplines such as history, sociology, anthropology, and psychology such wisdom as may be relevant for its purpose. On the need for the international law of the future to be disciplinary, I refer to another recent extra-judicial observation of distinguished former President of the Court that:

“there should be a much greater, and a practical, recognition by international lawyers that the rule of law in international affairs, and the establishment of international justice, are inter-disciplinary subjects[42].

Especially where this Court is concerned, “the essence of true universality” of the institution is captured in the language of Article 9 of the Statute of the International Court of Justice which requires the “representation of the main forms of civilization and of the principle legal systems of the world.” (emphasis added)…. I see the Court as being charged with a duty to draw upon the wisdom of the worlds several civilizations, where such a course can enrich its insights into the matter before it. The Court cannot afford to be monocultural, especially where it is entering newly developing areas of law.

9. The Constitution provides an entitlement for invoking[43] cultural law[44] in S. 15 (3), 30, 31, and 185, which require the application of choice of law rules. Constitutional Law of South Africa, Freedom and Security of the Person[45] states: “By substantive due process, the courts and commentators of the time meant that a law could be found unconstitutional as a violation of due process if “it exceeded all bounds of the social compact.’[46] The doctrine of Substantive Due Process[47] requires that "due process," that is, basic procedural rights be applied, but it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law gives them such power. But the State has to use sufficiently fair and just legal ‘due process’ procedures to lawfully deny any right. Substantive due process guarantee not only due process (just procedures), but also that these rights cannot be taken away without reasonable governmental justification, regardless of the procedures used to do the taking.

10. In Lithgow & others v. United Kingdom[48], the European Court of Human Rights held that the rule of law requires provisions of legislation to be adequately accessible and sufficiently precise to e nable people to regulate their affairs in accord with the law:

“As regards the phrase "subject to the conditions provided for by law", it requires in the first place the existence of and compliance with adequately accessible and sufficiently precise domestic legal provisions (see, amongst other authorities, the alone judgment of 2 August 1984, Series A no. 82, pp. 31-33, paras. 66-68).”

11. R v Sussex Justices, Ex parte McCarthy[49] established the principle that the mere appearance of bias -- in that case a conflict of interest, on the part of the judicial officer -- is sufficient to overturn a judicial decision. A person who makes a decision should be unbiased and act in good faith, cannot be a party in the case, nor an interest in the outcome: "no man is permitted to be judge in his own cause". In the Kings Bench Judicial Review case, Lord Chief Justice Hewart found that:

“.... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. .... Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

[38] Simple Justice: The History of Brown v. Board of Education, the epochal Supreme Court decision that outlawed segregation, and of black America’s century-long struggle for equality under law, by Richard Kluger; Random House (1975) (pp126-129)

[39] Opinion of Weeramantry J in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia) (1998) 37 International Legal Materials 162 206. [PDF]. See also: Smit NO and Others v King Goodwill Zwelithini Kabhekuzulu and Others (10237/2009) [2009] ZAKZPHC 75 (4 December 2009); Article 27 of the International Covenant on Civil and Political Rights; Sandra Lovelace v. Canada, Communication No. R.6/24 (29 December 1977), U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981)

[40] Julius Stone, Human Law and Human Justice, 1965, p.66: “It was for this reason that Grotius added to his theoretical deductions such a mass of concrete examples from history.”

[41] Sir Robert Y. Jennings, Universal International Law in a Multicultural World, in International Law and the Grotian Heritage: A Commemorative Colloquium on the Occasion of the Fourth Centenary of the Birth of Hugo Grotius, edited and published by the T.M.C. Asser Institute, The Hague, 1985, p. 195.

[42] International Lawyers and the Progressive Development of International Law, Theory of International Law at the Threshold of the 21st Century, Jerzy Makarczyk (ed), 1996, p 423.

[43] Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) at 397: Appellate Division held that neither common nor customary law was prima facie applicable. Courts had to consider all the circumstances of a case, and, without any preconceived view about the applicability of one or other legal system, select the appropriate law on the basis of its inquiry.

[44] SALC, Sept 1999: Report on Conflicts of law: P.22: ‘1.58. The Constitution now provides an entitlement for invoking customary law in legal suits. Because ss 30 and 31 specifically guarantee an individual and a group's right to pursue a culture of choice, it could be argued that application of customary law has become a constitutional right. Previously, the state had assumed complete discretion in deciding whether and to what extent customary law should be recognized, an attitude typical of colonial thinking, for Africans were subject to whatever policies the conquering state chose to impose on them. Now, however, the state has a duty to allow people to participate in the culture they choose, implicit in this duty is a responsibility to uphold the institutions on which that culture is based.’

[45] I Currie & S. Woolman, Freedom and Security of the Person, in M Chaskalson et al (eds) Constitutional Law of SA (1998)

[46] R Rotunda & J Novak Treatise on Constitutional Law vol 2 (1992) at 380.

[47] See: ‘Judicial Activism… Search for Truth’: The substantive due process right to (a) …. free speech; and (b) the rights of “discrete and insular minorities” originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.

[48] Lithgow & others v. United Kingdom (1986) * EHRR 329 § 110 [PDF]

[49] R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER 233) [PDF]

B. Bolam Test: Common Law Reasonableness Test: Skill & Competencies:

12. First Amicus alleges that the common law principle of the ordinary (Clapham Omnibus[50]), reasonable[51], fair-minded citizen is an illusion[52], an approximate 9.2% miniscule minority in all cultures[53]. The majority ordinary and elite are ignorant, prejudiced, unreasonable[54] citizens, frequently psychologically insecure[55], and desperate for anyone with an ‘air of authority/credibility[56] to provide them with the public relations[57] certainty -- although an illusion[58] -- their herd mentality / politically correct[59] beliefs are ‘absolutely right/superior’[60].

13. According to the Common law Reasonable Man Test, if the defendants actions served a socially useful purpose then he may be justified in taking greater risks; and if she acted in accordance with the common practice of others, this is considered strong evidence, with special standards being appropriate to professionals[61]. In Bolam v. Friern Hospital Management Committee[62], Judge McNair’s judgement dealt with the application of the common law reasonableness test in regards to negligence, where the ‘reasonableness test’ circumstance involved a special skill or competence.

But, where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

14. Similarly, the common law reasonableness test has cultural applications, similar to that of a professional skill application. Where the ‘reasonableness’ of an act is questioned that involves the skills or common practices within a particular culture/tribe, then the skills and practices of that particular tribe needs to be applied to determine the cultural/tribal ‘reasonableness’ of the individual’s circumstances[63].

[50] ‘The man on the Clapham omnibus’, is in legal speak, 'the reasonable person'. This is a phrase that was first used by Sir Charles Bowen, QC (later Lord Bowen). (Brewer's Dictionary of Phrase & Fable, 16th Edition, 1995) The man on the Clapham omnibus / the man in the street means the average ordinary English person (Oxford Guide to British & American Culture, 1999)

[51] Zimbardo, P.G. (2007). The Lucifer Effect: Understanding How Good People Turn Evil. New York: Random House.

[52] Milgram, Stanley (1963). "Behavioral Study of Obedience". Journal of Abnormal and Social Psychology 67: 371–378. Blass, Thomas. (2002), "The Man Who Shocked the World, "Psychology Today, 35:(2), Mar/Apr 2002. [PDF: www.scribd.com/doc/34496359]; The Milgram Paradigm after 35 Years: Some Things We Now Know about Obedience to Authority, by Thomas Blass, University of Maryland, Baltimore County: "If a system of death camps were set up in the United States of the sort we had seen in Nazi Germany, one would be able to find sufficient
personnel for those camps in any medium-sized American town." Stanley Milgram, [PDF]

[53] Blanton, Brad Ph.D: Reasonableness Test Radical Honesty Skills & Competencies Affidavit [PDF]

[54] Solomon Asch, Opinions and Social Pressure (1955): “In the 1950s the social psychologist Solomon Asch conducted a famous experiment that highlighted the fragility of the person in a mass society when he is confronted with the contrary opinion of a majority, and the tendency to conform even if this means to go against the person's basic perceptions. This is a chilling text that should be carefully read and remembered whenever we think we are swayed by the mass, against our deepest feelings and convictions. At that moment we should be on the alert, re-examining all positions (ours included) and then taking decisions as free, mature and fully responsible human beings, whatever the direction taken by the mass or by a majority.”. [PDF]

[55] McElvaine, R: Eve's Seed: Masculine Insecurity, Metaphor and the Shaping of History [PDF]

[56] Hundreds of Federal Agents Fall Victim to Ponzi Scheme, AOLNews, July 8, 2010. [PDF].

[57] Propaganda by Edward Bernays [PDF]

[58] Non-Descartian/Radical Honesty (I am, therefore I think) Worldview: See: Practicing Radical Honesty: Chapter 2: What is a Mind and How Does It Work?, Chapter 3. Dysfunctional Family University, The World-Famous School Within Which We Grew Our Minds; Chapter 8. Community and Compassion; [PDF]; Waking from the Meme Dream: Who Am I? Do I Exist?; by Susan Blackmore; Paper presented: The Psychology of Awakening: International Conference on Buddhism, Science & Psychotherapy Dartington 7- 10 November 1996; also The Psychology of Awakening: Buddhism, Science & Our Day-to-day Lives. Ed. G.Watson, S.Batchelor and G.Claxton; London, Rider, 2000, 112-122 [PDF]; The Origin of Consciousness in the Breakdown of the Bicameral Mind, by Julian Jaynes (1976); The Computational Brain, Churchland,P.S. and Sejnowski,T.J. (1992); Cambridge, Mass. MIT Press; To Have or to Be, by Erich Fromm, World Perspective Series, by Harper & Row; et al; [PDF]

[59] Asch, S. E. (1951). Effects of group pressure upon the modification and distortion of judgment. In H. Guetzkow (ed.) Groups, leadership and men. Pittsburgh, PA: Carnegie Press; Asch, S. E. (1956). Studies of independence and conformity: A minority of one against a unanimous majority. Psychological Monographs, 70 (Whole no. 416); Bond, R., & Smith, P. (1996). Culture and conformity: A meta-analysis of studies using Asch’s (1952b, 1956) line judgment task. Psychological Bulletin, 119, 111-137.

[60] Charleston v News Group Newspapers Ltd [1995] 2 AC 65, [1995] UKHL 6, [1995] 2 WLR 450, [1995] 2 All ER 313: "Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be 'right' conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the 'right' meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it. ... [PDF]

[61] Daborn v. Bath Tramways [1946] 2 All ER 333; and Watt v Hertfordshire County Council [1954] 2 All ER 368; Gray v Stead [1999] 2 Lloyd’s Rep 559; Philips v William Whiteley [1938] 1 All ER 566 62; Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 [PDF]

[63] Smit NO and Others v King Goodwill Zwelithini Kabhekuzulu and Others (10237/2009) [2009] ZAKZPHC 75 (4 December 2009); S v Zuma (JPV325/05, JPV325/05) [2006] ZAGPHC 45; 2006 (2) SACR 191 (W); 2006 (7) BCLR 790 (W) (8 May 2006), at: p.98; Sandra Lovelace v. Canada, Communication No. R.6/24 (29 December 1977), U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981).

C. Political Necessity: Freedom of Speech and Civil Disobedience

15. In Civil Disobedience and the Necessity Defence[64], John Alan Cohan describes the Civil Disobedience Free Speech Necessity Defence as follows:

Freedom of expression in a free society includes freewheeling public dissent on controversial political issues of the day. Civil disobedience is a form of protest that, while usually peaceful, involves violating the law—usually by trespassing on government property, blocking access to buildings, or engaging in disorderly conduct. Civil disobedience has been called “the deliberate violation of law for a vital social purpose.”[65] In their day in court, civil disobedients have at times sought to interpose the necessity defense to justify their conduct. The necessity defense asserts that breaking the law was justified in order to avert a greater harm that would occur as a result of the government policy the offender was protesting.

Protestors will seek to invoke the necessity defense not so much to gain acquittal from the relatively minor charges, but to advance the more important objective of publicly airing the moral and political issues that inspired their act of civil disobedience. There is the hope of gaining notoriety for a cause by discussing it in court, and “educating” the jury about political grievances or other social harms. The strategy is meant to appeal to a higher principle than the law being violated—the necessity of stopping objectionable government policies—and to let the jury have an opportunity to weigh their technically illegal actions on the scales of justice. Acquittal is of course hoped for in the end but may be quite low on the protestors’ list of priorities.

The necessity defense is attractive to reformers who practice civil disobedience because it allows them to deny guilt without renouncing their socially driven acts. It offers a means to discuss political issues in the courtroom, a forum in which reformers can demand equal time and, perhaps, respect. Moreover, its elements allow civil disobedients to describe their political motivations. In proving the imminence of the harm, they can demonstrate the urgency of the social problem. In showing the relative severity of the harms, they can show the seriousness of the social evil they seek to avert. In establishing the lack of reasonable alternatives, they can assault the unresponsiveness of those in power in dealing with the problem and prod them to action. And in presenting evidence of a causal relationship, they can argue the importance of individual action in reforming society. Thus, the elements of the necessity defense provide an excellent structure for publicizing and debating political issues in the judicial forum.[66]

The goal of describing their political motivations to the jury, and implicitly to the media, is subject to numerous hurdles inherent in the necessity defense. In most instances, as we will see, courts will rule as a matter of law that the actors have failed in the offer of proof regarding the elements of the necessity defense so that the jury rarely is given the chance to weigh in on the matter. On the other hand, if the defense is allowed, the jury is called upon to weigh controversial political issues and to function as the “conscience of the community.” “Reflected in the jury’s decision is a judgment of whether, under all the circumstances of the event and in the light of all known about the defendant, the prohibited act, if committed, deserves condemnation by the law.” In cases where judges have been persuaded to allow the necessity defense, juries have, often enough, delivered not guilty verdicts

Definition of Civil Disobedience

John Rawls defines civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”[67] A more comprehensive definition of civil disobedience is:

Civil disobedience is an act of protest, deliberately unlawful, conscientiously and publicly performed. It may have as its object the laws or policies of some governmental body, or those of some private corporate body whose decisions have serious public consequences; but in either case the disobedient protest is almost invariably nonviolent in character.[68]

Broadly construed, civil disobedience may be directed toward a law or policy of the government, or toward a corporate entity whose policy is the subject of protest. Civil disobedients hope that their conduct makes a dramatic appeal to the conscience of the community, affects public awareness of a particular social issue, and motivates citizens to demand change in certain policies.

Civil disobedience is a singular hallmark of a free country:

Civil Disobedience and Other Essays; By Henry David Thoreau [*Amazon**Kalahari*]

We must recognize that civil disobedience in various forms, used without violent acts against others, is engrained in our society and the moral correctness of political protestors’ views has on occasion served to change and better our society. Civil disobedience has been prevalent throughout this nation’s history extending from the Boston Tea Party and the signing of the Declaration of Independence, to the freeing of the slaves by operation of the Underground Railroad in the mid-1880’s….

Civil disobedience differs from other forms of peaceful protest in that there is a technical violation of the law such as trespass, blocking of public access, or disorderly conduct; and the violation is part of the effort to garner public attention to the cause.

Historic Instances of Civil Disobedience

Of course, civil disobedience is something of a democratic tradition. ….. As early as 1635, American colonists were persecuted for direct civil disobedience in refusing to obey certain laws by reason of conscience.[69]…. In 1846, Henry David Thoreau wrote his famous and influential essay, On the Duty of Civil Disobedience, in which he gave a cogent argument on the necessity of direct civil disobedience.

[64] Civil Disobedience and the Necessity Defense, by John Alan Cohan, J.D. Loyola Law School; B.A. University of Southern California; Pierce Law Review. [PDF]

[65] Howard Zinn, Disobedience and Democracy: Nine Falacies on Law and Order 39 (1968)

[66] Steven M. Bauer & Peter J. Eckerstrom, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 STAN. L. REV. 1173, 1176 (1987).

[67] John Rawls, A Theory of Justice 364 (1971)

[68] Carl Cohen, Civil Disobedience: Conscience, Tactics, and the Law 39–40 (1971) (emphasis omitted); see Blacks Law Dictionary 223 (5th ed. 1979) (defining civil disobedience as “a form of lawbreaking employed to demonstrate the injustice or unfairness of a particular law and indulged in deliberately to focus attention on the allegedly undesirable law”).

[69] William P. Quigley, The Necessity Defense in Civil Disobedience Cases: Bring in the Jury, 38 NEW ENG. L. REV. 3, 18 (2003) Quigley, supra note 10, at 21; see, e.g., Power of the People: Active Nonviolence in the United States 15 (Robert Cooney & Helen Michalowski eds., 1977). In 1635, the General Court of Massachusetts banished Roger Williams for criticizing the Puritan clergy’s persecution of people of conscience and for insisting that the land still belonged to Native Americans. See id. Anne Hutchinson was banished in 1638 for publicly insisting that conscience was a higher authority than law. See id. At 15–16. The Society of Friends, a pacifist group, was banned from Massachusetts from 1654 to 1661; a law in 1657 imposed a fine of 100 pounds on anyone who brought a Quaker into the territory. See id. In 1658, a Quaker named Richard Keene was fined and beaten for refusing to be trained as a soldier. See id. at 18.

D. Judicial Activism: A More Searching Judicial Enquiry[70]: Search for Truth

16. In The Living U.S. Constitution[71], Padover and Landynski write:

How to reconcile judicial review with majority rule has been a basic issue, at times a critical one, in our polity. In 1938 Justice Stone, in the famous footnote 4 to U.S. v. Carolene Products[72], articulated a justification for judicial activism in the field of individual rights when he suggested that, unlike challenges to “ordinary commercial transactions,” “there may be narrower scopes for operation of the presumption of constitutionality when legislation appears on its face to be within specific prohibition of the Constitution… The same were true with regard to “legislation which restricts [the] political processes” or is directed at “discrete and insular” (i.e. vulnerable) minority groups; these situations might call for a “more searching judicial enquiry.

In other words, ordinarily the political system is adequate to defend individual liberties. When it is not, the Courts role must be redefined to allow for broader judicial review as a substitute for the political review, which these groups are unable to effectively obtain. In effect the court, should appoint itself as a surrogate legislature, judicially awarding the legislative bargains it believes these groups would themselves have struck were they politically influential.

In such circumstances, judicial activism becomes defensible as a safeguard for democratic principles, for the Court can be seen as aiding democracy rather than blocking it, as giving expression to the political process rather than negating it.

17. In Judicial Activism in South Africa’s Constitutional Court: Minority Protection or Judicial Illegitimacy?, Anthony Chima Diala[73] writes:

In South Africa, the ANC enjoys an overwhelming political dominance which has practically neutralized significant parliamentary opposition. In the absence of strong opposition, the duty of protecting ‘discrete and insular minorities’[74] falls on the Constitutional Court. To do otherwise in a country with a remarkable history of injustice might make such minorities not only ‘perpetual losers,’ but also ‘scapegoats in political struggles’[75]

18. In the context of a religious[76] enquiry (search for truth) of the relationship between: (i) freedom of speech, (ii) sincere forgiveness, (iii) Stanley Milgrams studies on obedience, and (iv) and the common law reasonableness test; First Amicus reiterates:

“...freedom of expression is an essential process for advancing knowledge and discovering truth. An individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by exposing it to opposition, and make full use of different minds. Discussion must be kept open no matter how certainly true an accepted opinion may seem to be; many of the most widely acknowledged truths have turned out to be erroneous. Conversely, the same principles applies no matter how false or pernicious the new opinion appears to be; for the unaccepted opinion may be true or partially true and, even if wholly false, its presentation and open discussion compel a re-thinking and re-testing of the accepted opinion. The reasons which make open discussion essential for an intelligent individual judgment likewise make it imperative for rational social judgment.”

T Emerson, The System of Freedom of Expression at 6-7 (1970)


'If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out.”

Abrams v United States 250 US 616 (1919) at 630

[70] Ubuntu Amicus (“UA”) : Ubuntu Brief of Amicus Curiae Lara Johnstone, Bushido Dischordian Futilitarian In Support Of: Radical Honesty Common Sense Population Policy Social Contract Interpretations of Promotion of National Unity & Reconciliation Act, 34 of 1995: [A.12] Judicial Enquiry: Simple Justice Tribal Consciousness [PDF]

[71] The Living U.S. Constitution, by Saul K. Padover; Revised by Jacob W. Landynski; Third Revised Edition (Pg 64)

[72] United States v. Carolene Products Co. , 304 U.S. 144 (1938) [PDF]

[73] Submitted in partial fulfilment of requirements for an LL.M. (Human Rights and Democratisation in Africa) degree of the Centre for Human rights, University of Pretoria, 29 October 2007

[74] United States v. Carolene Products Co. 304 U.S. 144, 152-53 (1938), FN 4 para 4 [PDF]

[75] R.M. Cover, The Origins of Judicial Activism in the Protection of Minorities, (1982), Yale Law School, vol 91, No 7, p 1287. It has been noted that: ‘(w)ith little meaningful institutional separation of powers between the executive and legislative branches, South Africa’s judiciary is central to prospects for accountable government.’ See R. Alence, ‘South Africa after Apartheid: The First Decade’ (2004), Journal for Democracy, vol 15, No 3, p 87-89.

[76] Fromm, Erich, To Have or To Be (Continuum 2000: p135-136) [See: Radical Honesty: Religion & Culture; or Refugee Status?]

E. EcoLaw 101: Laws of Sustainability: Ecological Social Contract

19. Sustainability, i.e. environmental or ecological rights and responsibilities are the sine qua non[77] foundation for all other rights[78]. However adding "sustainable" to our legal vocabulary, is not sufficient to ensure that our society becomes sustainable, unless the definition of sustainable is sufficiently precise[79] to enable sustainable living.


20. In Socio-Economic Rights in South Africa: International and Constitutional Law[80]: Environmental Rights, Feris and Tladi, detail three main approaches to the environment. The first, as a right in an of itself as represented in the Proposed Legal Principles for Environment Protection and Sustainable Development, adopted by the World Commission on Environment and Development (WCED) Experts Group on Environmental Law[81]. The second, under existing recognized rights, as a violation of life, health and dignity. An example is found in Principle 1 of the Declaration of the United Nations Conference on Human Environment (Stockholm Declaration), which provides that humans have ‘the fundamental right to freedom… in an environment of a quality that permits a life of dignity’. This approach is supported by the European Court of Human Rights[82] and the opinion of Weeramantry J in Case Concerning the Gabcikovo- Nagymaros Project (Hungary v Slovakia), where the Judged ruled that the protection of the environment is a ‘sine qua non for numerous human rights’[83]:

Environmental Protection as a Principle of International Law

The protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.

….

Thus Arthur C. Clarke, the noted futurist, with that vision which has enabled him to bring high science to the service of humanity, put his finger on the precise legal problem we are considering when he observed: “the small Indian ocean island.. provides textbook examples of many modern dilemmas: development versus environment[84], and proceeds immediately to recapitulate the famous sermon… relating to the trusteeship of the land, observing, “For as King Devanampiya Tissa was told three centuries before the birth of Christ, we are its guardians – not its owners.”

The task of the law is to convert such wisdom into practical terms – and the law has often lagged behind other disciplines in so doing.

21. The third approach involves the use of procedural rights, such as access to information, as ruled in Van Huyssteen NO v Minister of Environmental Affairs and Tourism[85] where the court held that opponents to a proposed development had both locus standi and the right to access to information. This approach is ‘said to be the key to environmental rights’, since the “idea is that if principles of democratic governance such as openness, accountability and civic participation are adhered to, then environmental standards will be maintained, or at least improved.”

22. Additional international instruments on sustainability, including the principles of intergenerational equity and integration, as made famous by Edith Brown Weiss. It imposes an obligation to conserve natural and cultural resource base for future generations[86], in binding[87] and nonbinding modern international instruments.

23. SA’s environmental rights is guaranteed in Section 24 of the Constitution, leaving no question whatsoever as to the existence of this distinct environmental right.

24. In Constitutional Law of SA: Environmental Law and Rights[88], Gutto, writes:

In three main cases dealing directly with environmental law in light of the interim Constitution civil cases have been successful against ‘environmentally harmful activities’ of private persons and corporations.[89] ‘Environment rights’ are also not new; the Environment Conservation Act, 73 of 1989, was considered by the Department and Ministry of Environmental Affairs[90] as ‘the most important environmental statute in SA’[91] Many acts preceded it[92], as identified by the Department of Environmental Affairs, as forming part of the major legislation on the environment[93].

The common-law source of environmental rights is well established in several branches of delict… The development of environmental norms and principles through the tort/delict of nuisance is a general feature of common-law legal systems and is not unique to South Africa …… The origin of the constitutional provision in environmental rights is partly rooted in these ‘sources’ and not in some abstract notions of rights without history or relevance to reality of life in society.’ [Finally the] right or freedom to engage in economic activities (s 26) is limited, to ensure that such ensure conformity to environmental rights requirements.

25. The 18 Laws of Sustainability were authored by Dr. Albert Bartlett[94], in Reflections on Sustainability, Population Growth and the Environment[95], republished in The Essential Exponential! For the Future of our Planet[96], which documents his assertion that, “[T]he greatest shortcoming of the human race is our inability to understand the exponential function.” The laws detailed descriptions, and the Hypothesis, Observations and Predictions to define the term ‘sustainability’. The 18 laws are believed to hold rigorously, with few exceptions:

1. Population growth and / or growth in the rates of consumption of resources cannot be sustained.
   
   
2. In a society with a growing population and / or growing rates of consumption of resources, the larger the population, and / or the larger the rates of consumption of resources, the more difficult it will be to transform the society to the condition of sustainability.
   
   
3. The response time of populations to changes in the human fertility rate is the average length of a human life, or approximately 70 years.
   
   
4. The size of population that can be sustained (the carrying capacity) and the sustainable average standard of living of the population are inversely related to one another.
   
   
5. Sustainability requires that the size of the population be less than or equal to the carrying capacity of the ecosystem for the desired standard of living.
   
   
6. (The lesson of "The Tragedy of the Commons") (Hardin 1968): The benefits of population growth and of growth in the rates of consumption of resources accrue to a few; the costs of population growth and growth in the rates of consumption of resources are borne by all of society.
   
   
7. Growth in the rate of consumption of a non-renewable resource, such as a fossil fuel, causes a dramatic decrease in the life-expectancy of the resource.
   
   
8. The time of expiration of non-renewable resources can be postponed, possibly for a very long time.
   
   
9. When large efforts are made to improve the efficiency with which resources are used, the resulting savings are easily and completely wiped out by the added resources consumed as a consequence of modest increases in population.
   
   
10. The benefits of large efforts to preserve the environment are easily cancelled by the added demands on the environment that result from small increases in human population.
    
    
11. (Second Law of Thermodynamics) When rates of pollution exceed the natural cleansing capacity of the environment, it is easier to pollute than it is to clean up the environment.
    
    
12. The chief cause of problems is solutions. (Sevareid 1970)
    
    
13. Humans will always be dependent on agriculture.
    
    
14. If, for whatever reason, humans fail to stop population growth and growth in the rates of consumption of resources, Nature will stop these growths.
    
    
15. In every local situation, creating jobs increases the number of people locally who are out of work.
    
    
16. Starving people don't care about sustainability.
    
    
17. The addition of the word "sustainable" to our vocabulary, to our reports, programs, and papers, to the names of our academic institutes and research programs, and to our community initiatives, is not sufficient to ensure that our society becomes sustainable.
    
    
18. Extinction is forever.

[77] Opinion of Weeramantry J in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia) (1998) 37 International Legal Materials 162 206. [PDF]

[78] Democracy Cannot Survive Overpopulation, Al Bartlett, Ph.D., Population & Environment, Vol. 22, No. 1, Sep 2000, pgs. 63-71 [PDF]

[79] Lithgow & others v. United Kingdom (1986) * EHRR 329 § 110 [PDF]

[80] Socio-Economic Rights in South Africa: International and Constitutional Law, by Danie Brand & Christof Heyns (eds), CHR 81 Principle 1: ‘All human beings have the fundamental right to an environment adequate for their health and well-being.; Principle 2 (adopted by the UN Commission on Human Rights), provides that all persons ‘have the right to a secure, healthy and ecologically sound environment.’ See Proposed Legal Principles for Environmental Protection and Sustainable Development, adopted by the WCED Experts Group on Environmental Law, reproduced in WCED Our Common Future (1987) 348. See also Principle 1, Draft Principles on Human Rights and the Environment in UN Sub-Commission on Prevention of Discrimination and Protection of Minorities Human Rights and the Environment, Final Report of the Special Rapporteur, UN Doc E/CN.4.Sub2/1994 19

[82] See eg Lopez Ostra v Spain (1995) ECHR Ser A 303-C.

[83] Opinion of Weeramantry J in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia) (1998) 37 International Legal Materials 162 206. [PDF]

[84] Arthur C. Clarke, Sri Lankas Wildlife Heritage, National Geographic, August 1983, No. 2, p 254; emphasis added

[85] Van Huyssteen NNO v Minister of Environmental Affairs and Tourism 1995 9 BCLR 1191 (C). For a discussion, se A. Eide et al (eds) Economic, social and cultural rights: A textbook (1995) 261 et seq. The authors discuss Communication 429/1990, EW & Others v The Netherlands as an example of how this is achieved.

[86] (i) EB Weiss In fairness to future generations: International law, common patrimony and intergenerational equity, in P Hayden (ed) the Philosophy of human rights (2001) 618; (ii) EB Weiss The planetary trust: Conservation and intergenerational equity (1984) Ecology Law Quarterly 495; (iii) EB Weiss Our rights and obligations to future generations for the environment (1990) 84 American Journal of International Law 198; (iv) L Gundling, Our responsibility to future generations (1990) 84 American Journal of International Law 207; (v) Judgement of Davide J in Minors Oposa v Secretary of Department of Environment and Natural Resources Supreme Court of Philippines (reproduced in (1994) 83 International Legal Materials 173) in which the Court granted the petitioners claim to a right to a balanced ecology, for themselves, and also for future Filipino’s.

[87] (i) Art 3(1) of the 1992 United Nations Framework Convention on Climate Change, reprinted in (1992) 31 International Legal Materials 851, which provides that ‘parties should protect the climate system for the benefit of the present and future generations of humankind’. (ii) Preamble of the 1992 Biodiversity Convention, reprinted in (1992) 31 International Legal Materials 822, makes use of intergenerational equity. For earlier instruments see the Preambles of the 1968 Convention on African Nature Conservation, and the 1972 World Heritage Convention.

[88] SBO Gutto ‘Environmental law and Rights’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1998)

[89] Van Huyssteen & others NNO v Minister of Environmental Affairs and Tourism and others 1996 (1) SA 283 (C); Wildlife Society of Southern Africa & others v. Minister of Environmental Affairs and Tourism of the Republic of South Africa & others 1996 (3) SA 1096 (Tk); Minister of Health and Wealth v. Woodcarb (Pty) & another 1996 (3) SA 155 (N).

[90] Dept. of Environmental Affairs General Environment Policy (Jan 1994); ‘Mission Statement 1992’ in (Mar/Apr 1992) SA Panorama 4.

[91] Andre Rabie ‘The Environment Conservation Act and its Implementation (Jan 1994) 1 SA Journal of Environmental Law and Policy 113

[92] The Atmospheric Pollution Prevention Act 45 of 1965, the Water Act 54 of 1956, the Minerals Act 50 of 1991, the Conservation of Agricultural Resources Act 43 of 1983, and the Health Act 63 of 1977.

[93] Department of Environmental Affairs Statutory Obligations and Responsibilities (January 1994) 16-17. Other statutes identified as major environmental legislation by the Department include the Agricultural Pests Act 36 of 1983, the Animal Diseases Act 35 of 1984, the Animal Protection Act 71 of 1962 (now repealed by act 139 of 1992), the Common Pasture Management Act 82 of 1977, the Forest Act 122 of 1984, the Medicines and Related Substances Control Act 101 of 1965, the Mountain Catchments Areas Act 63 of 1970, the National Parks Act 57 of 1976, the Sea Fishery Act 12 of 1998, the Physical Planning Act 125 of 1991, the Sea-Shore Act 21 of 1935, the Territorial Waters Act 87 of 1963, the Housing Act of 1966, the Dumping at Sea Control Act 73 of 1980, the Hazardous Substances Act 52 of 1951, the Slums Act 76 of 1979, the Less Formal Township Establishment Act 113 of 1991, and the State Land Disposal Act 48 of 1961. See also Department of Environmental Affairs (Teurinigs (ed) Guide to Legislation Concerning: (1) Natural Environment; (2) Pollution; (3) Built Environment; (4) Cultural Environment (February 1993).

[94] www.albartlett.org: Albert Bartlett is Professor Emeritus at Colorado University at Boulder, and been a faculty member since 1950. He was President of the American Association of Physics Teachers in 1978, and in 1981 received the Associations Robert A. Millikan Award for outstanding scholarly contributions to physics education. He is a fellow of the American Physical Society, and of the American Association for the Advancement of Science. In 2001 he testified before the US Congress on energy policy. He has given his celebrated lecture, Arithmetic, Population and Energy over 1,600 times since September 1969.

[95] Reflections on Sustainability, Population Growth, and the Environment, by Albert Bartlett, Ph.D., Paper first published in Population & Environment, Vol. 16, No. 1, Sep 1994, pp. 5-35; (1998) [PDF]

[96] Reprints of Dr. Bartlett’s papers have been published by the University of Nebraska at Lincoln in the book The Essential Exponential! For the Future of Our Planet, compiled by University of Nebraska physicists, features articles from scholars on exponential human population growth and increasing rate of natural resource consumption. [PDF]

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