David M. Beatty - The Ultimate Rule of Law

(p.vi) Preface

This is a book about one way of solving disputes and settling differences. It is known to lawyers and laypersons alike as the rule of law, although these words have become a term of art that seems incapable of yielding a single, comprehensive definition. Its ambiguities notwithstanding, the rule of law has come to represent an ideal around which systems of government should be organized. It is the primary purpose of this book to explain why that is; what law and its rule really mean.

Although its subject is the resolution of conflict, the book was conceived and nurtured in a corner of the world in which harmony and co-operation prevail. I live and work in a faculty where collegiality is valued as highly as whatever job is being done and the office of the dean is an oasis of friendship and support. I am also blessed to be surrounded by family and friends whose selflessness and generosity are ironclad guarantees that all conflicts and disagreements are settled fairly and peacefully.

In contrast with best practice in the culinary arts, this book is undeniably better for its having passed through many hands Although none can be held responsible for what follows there are a lot of people who have helped in its production. Kamil Ahmed, Becky Allen, Gwen Booth, Alan Brudner, Sugit Choudry, Guy Davidov, Ron Daniels, Rajeev Dhavan, Sara Ferris-Childers, Charles Fried, Cheryl Fung, Miranda Gass-Donnelly Angus Gibbon, Sylvia Jaffrey, Ninette Kelley, David Klacko, Trevor Knight, Don Kommers, John Louth, Patrick Macklem, Marylin Raisch, David Schneiderman, May Seto, Shikha Sharma, Kathy Tam, Ted Tjaden, and Beth Woods deserve special thanks. Funding for the research was generously supported by the Social Sciences and Humanities Research Council of Canada and by the Robert Prichard and Ann Wilson Chair in Law and Public Policy. As always, the Institut Suisse de Droit Compar provided a welcoming home away from home.

The heroes of this story are the jurists of our generation who have, day in, day out, shown the world how law can give government more integrity than it is has ever had. The jurisprudence they have written demonstrates how timeless ideas of justice and fairness can be guaranteed in the everyday lives of ordinary people. As a snapshot of their work, this book simultaneously bears witness to moral truths of long standing and challenges future generations not to repeat the mistakes we have made. To have been able to chronicle how judges in our time have come to understand their part in government, in Rousseaus own backyard, is testimony to how good a life in the law can be.

D.M.B.

Pays de Gex

21 June 2003

(p.ix) Table of Cases

Constitutional Court of Germany

• Abortion I Case (1975)

• Aircraft Noise Control Case (1981)

• Blood Transfusion Case (1971)

• Classroom Crucifix II Case (1995)

• Homosexuality Case (1957)

• Interdenominational School Case (1975)

• Legal Aid Case (1967)

• Nocturnal Employment Case (1992)

• Numerus Clausus Case (1972)

• Pharmacy Case (1958)

• School Prayer Case (1979)

• Sex Education Case (1977)

• Southwest State Case (1951)

• Television Cases (1961, 1981)

Constitutional Court of Hungary

• On Environmental Protection (1994)

• On Freedom of Enterprise and Licensing of Taxis (1994)

• On Freedom of Expression (1992)

• On Minimum Age for Membership of Homosexual-oriented Associations (1996)

• On The Legal Equality of Same Sex Partnerships (1995)

• On The Regulation of Abortion (1991)

• On The Resettlement of Church Property (1994)

• On Social Security Benefits (1995)

Constitutional Court of South Africa

• Booysen v. Min. of Home Affairs (2001)

• Christian Education South Africa v. Minister of Education (2000)

(p.x)

• Du Plessis v. De Klerk (1996)

• Du Toit v. Minister for Welfare and Population Development (2003)

• Gauteng School Education Bill (1996)

• Grootboom v. The Republic of South Africa (2001)

• Khumalo v. Holomisa (2002)

• Lawrence, Negal and Solberg v. State (1997)

• National Coalition for Gay and Lesbian Equality v. Ministry of Justice (1999)

• Premier, Mpumalanga v. Executive Committee (1999)

• President of the Republic of South Africa v. Hugo (1997)

• Prince v. President Cape Law Society (2002)

• Re Certification of the Constitution of the Republic of South Africa (1996)

• S v. Makwanyane (1995)

• Satchwell v. President of the Republic of South Africa (2002)

• Soobramoney v. Ministry of Health (Kwazulu-Natal) (1998)

• Treatment Action Campaign v. South Africa (Min. of Health)