Thus, it is not surprising that public policy debates occur over proposed legislation and funding. In this context, advocacy can be defined as attempting to influence public policy through education, lobbying, or political pressure.
Advocacy groups often attempt to educate the general public as well as public policy makers about the nature of problems, what legislation is needed to address problems, and the funding required to provide services or conduct research. Although advocacy is viewed as unseemly by some in the professional and research community, it is clear that public policy priorities are influenced by advocacy.
Sound research data can be used to educate the public as well as policy makers, thereby improving the public policy process. How the Law Influences Treatment of Violence Against Women Survivors There are at least six ways the law directly or indirectly influences the lives of victims of violence against women: State, national, and international law provides a framework for identifying basic human rights and for defining violations of these rights.
The law defines behaviors proscribed by criminal and civil statutes and provides criminal and civil penalties for violations. The law establishes eligibility criteria for legal immigration, asylum, and citizenship - all of which are relevant for many victims who leave their native lands and seek refugee status in another nation.
Trial includes one question to LexisAsk during the length of the trial. To view the latest version of this document and millions of others like it, sign-in to LexisLibrary or register for a free trial. Skip to main content. Sign in Contact us. Halsbury's Laws of England. Sign-in Help. Thus South African law borrowed from English law. Joubert states that already during the reign of Elizabeth I all restraints of trade were held to be unlawful as contrary to the public interest, which rule was relaxed in when it was held that general restraints were void, but partial restraints might be lawful.
The question to be addressed was whether the restraint was not so severe as to interfere with the interest of the public. In particular circumstances the covenant might nevertheless be held void on the basis that it was injurious to the public interest. Apart from its pivotal role as a benchmark in contracts in restraint of trade, public policy can also be detected in the approach of the various legal systems to agreements of wagering, gambling or betting where protection of the family as well as economic morality have been combined motives.
A wagering contract is an agreement in which two parties promise each other some performance, usually an amount of money; performance is dependent on the outcome of an uncertain future event beyond their control. As a rule one party will lose, while the other wins. The Digest devotes a title to gamblers and shows an ambivalent attitude which continues today. A senatusconsultum proscribed playing for money except in certain sporting events, on the ground that they were contests of strength.
He subsequently prohibited a game with wooden horses and decreed confiscation of the premises where such games were played. The well known gambling fever of the Germans was perpetuated in the Netherlands where according to Grotius it was uncertain whether wagers were valid or not. Grotius explained elsewhere in the Inleidinge that although in terms of natural law everybody is the master of his own property and actions, the civil law did not want people to use these to their own detriment, without any benefit for the public interest.
Thus prohibitions against betting varied in the different towns. Thus a bet on an archery contest, a ball game or on shooting a bird was allowed.
Later institutional authors were divided on the subject. According to Voet gambling debts could not be recovered by legal process, nor did the loser have an action to recover his losses. Wessels states that the Dutch courts adopted the same rule as the English courts and postponed cases involving idle wagers until the court had nothing else requiring attention. Consequently the South African courts held that Roman-Dutch law did not regard a wagering agreement as per se illegal or immoral.
This decision was followed in Fischer v Straiton and stands until today. The view on which it was based, that betting is wasteful and has negative consequences for the individual, the family and society in general, supports the submission that public policy entered the economic space by way of wagering agreements. Today wagering debts not lawfully incurred in terms of the National Gambling Act and the Lotteries Act remain subject to the common law and are not illegal or immoral but are contrary to public interest and unenforceable.
South African textbooks have traditionally traced the rule of public policy, as a guide to the content of contracts, to Roman law and Roman-Dutch law with support from English law. However, to validate this conclusion it has been necessary to equate public policy with boni mores, good morals. Thus Wessels and many authors after him treated the concepts of boni mores and public policy as interchangeable.
This is not the place to enter into a debate about law and morality, but traditionally boni mores have represented current ideas on morality, which concentrated on family, marriage and sexual matters. The association of boni mores with public policy continues today and is justified by the argument that the maintenance of family life and the dignity of the individual are matters of societal and state interest.
However, combining the norms of boni mores and public policy is historically as well as dogmatically incorrect. It either stretches sound morals beyond recognition or risks turning public policy into moralising paternalism. Thus many public interests such as health, education and social welfare were left to private and or church initiatives.
Moreover, public policy needs a constitutional and legal foundation; the old subject has to become the modern citizen. This places the search for its origin in England where constitutional democracy dates back to Magna Charta. The Industrial Revolution spawned political thinkers such as Hobbes and Locke who sowed the seeds of public policy. Winfield has shown the origins of public policy, the unruly horse reservation and the battle for its survival in Egerton v Brownlow.
On a more practical note it should be mentioned that the Roman-law texts used to support the public policy argument have a tenuous link with the subject. The Institutes of Justinian contain a title on ineffective stipulations and the only text relied on reads: "[A] promise in respect of a base cause, as if a man promised to commit homicide or sacrilege, has no efficacy.
As a result the net is thrown wider and texts from the law of succession are relied upon for analogous interpretation, which explains the citations from Book 35 of the Digest. The same analysis applies to the much cited passages of Voet and Grotius, which are equally reticent on public policy, with exception of Grotius' text on betting. From this historical discourse it is clear that the concept of public policy rooted in modern South African law has its origins in the Roman and Roman-Dutch norm of boni mores - standards of good morals and the English law rule of public policy.
Wille may have been the first author to construct the category "agreements interfering with the full exercise by persons of their legal rights". Thus agreements affecting freedom to marry, freedom of testation, freedom to exploit a desperate borrower, freedom of trade and freedom to work are void.
The other aspect of public policy is that the state protects herself and her organs. It is, however, the first facet of public policy that had the potential to develop into the general clause. As the nineteenth century laissez-faire state developed into a democracy and made place for the twentieth century welfare state, the latter started taking human rights seriously. Evidently such a change of direction would be reflected in public policy and eventually in case law.
Nous n'avons Sasfin, the appellant, was a finance company. Beukes, the respondent, was an anaesthetist. The parties had concluded a discounting agreement in terms of which Beukes was obliged to offer for sale to Sasfin all book debts he wished to sell. A discounting agreement governed the purchase of the book debts. Beukes had also concluded an all-encompassing deed of cession in favour of Sasfin and two other companies, in terms of which he ceded to these parties as creditors all present and future claims which he might have, as security for his obligations to them.
A dispute arose between Sasfin and Beukes and Sasfin applied for an order enforcing the deed of cession. The court a quo dismissed Sasfin's application on the grounds that the deed of cession was contrary to public policy and thus invalid.
The appeal against this order was dismissed because the cession was found to be unconscionable and therefore unenforceable because it was contrary to public policy. He defines such contracts as impossible by law. He draws a distinction between contracts expressly and impliedly prohibited and those declared unenforceable. In this category are those contracts that the law prohibits because, eg, their subject matter does not exist in nature; it is extra commercium; it involves a future succession; or it is the property of the person who contracts to obtain it.
Wessels gives the following examples of the object of the obligation being contrary to public policy: agreements which injure the state in its relations with other states; agreements which could injure the public service; agreements obstructing the administration of justice; contracts in restraint of marriage and for the future separation of husband and wife; agreements in restraint of trade; wagering contracts and usurious agreements.
Wessels considers libellous works, agreements involving future seduction and contracts involving immoral purposes to be contra bonos mores. Wessels considers contracts to defraud the insolvency laws and contracts to defraud creditors to be examples of miscellaneous illegal agreements. However, trading with the enemy has been common practice. Contracts injurious to the public service include promises to public officers which will induce them to use their power and influence for an improper purpose; in both English law and Roman-Dutch law such contracts are void as being contrary to public policy.
Contracts impeding, obstructing or perverting the administration of justice include all contracts which promote crime, hinder or frustrate the administration of justice or are illegal and void because they are contrary to public policy. This group may be divided into different categories: contracts to commit an offence and contracts in terms of which criminals benefit; contracts which multiply public offences and contracts concluded to exploit and abuse the legal process.
At they mention public policy twice in the context of the condictio ob injustam or ob turpem causam. Agreements are defined to be contra bonos mores if they offend our conscience, or sense of what is right, or modesty.
The rights to work, trade, make a will and marry are discussed. Joubert states: "Very often good morals are associated with matters affecting sexual morals, but good morals can deal with a wider spectrum of topics than sex. Underlying every prohibition based on the protection of good morals and public policy is some public interest.
0コメント