One of the most important areas of the South African Constitutional Court's jurisprudence is gay rights. The Court has ruled for the plaintiffs in several cases, even invalidating same-sex marriage restrictions. Given the racist legacy of apartheid, it is surprising that these cases are more prominent than the Court's racial discrimination cases. It raises the question of why the South African Court made this area a cause célèbre.

By contrast, perhaps the most prominent U.S. Supreme Court case is Brown v. Board of Education, a defeat for American racial apartheid. The Supreme Court has not even heard gay rights cases until recently. Moreover, the plaintiffs in 1986 suffered a big defeat in the first case, Bowers v. Hardwick. The Court has since overruled Bowers but its gay rights jurisprudence is still muddled.

Indeed, gay marriage rivals abortion as one of the most controversial constitutional issues in the United States even though the U.S. Supreme Court has not decided the question. Only the Supreme Judicial Court of Massachusetts, the California Supreme Court, and the Connecticut Supreme Court have ruled in favor of gay marriage under their state constitutions, though the California decision has been overturned by Proposition 8. New York, Washington, and Maryland disagree. New Jersey, Vermont, and Hawaii have essentially ruled in favor of civil unions but not marriages. Many states have passed laws or constitutional amendments specifying that marriage is between a man and a woman.

At first glance, the distinction between substantive equality and formal equality looks obvious. Substantive equality requires that the courts favor the historically disadvantaged class. In contrast, formal equality presumes that courts should treat everyone the same. Yet, these distinctions are not always so clear, especially in gender discrimination cases. Do laws that advantage women actually promote equality or demonstrate that women remain second-class citizens who need assistance? Should laws that have a disparate impact on women automatically be illegal even if there is no discriminatory animus?

This chapter addresses these questions by focusing on two important Constitutional Court decisions and their American analogues. The South African cases show that the temptation to treat all people the same, regardless of historical circumstances, remains strong even under South Africa's transformative charter.

The first case involves Nelson Mandela's pardon of women in prison, along with children under age 12, who committed nonviolent offenses. The second case involves the criminalization of prostitution. There is an interesting connection between the two cases as some women may have been imprisoned because of prostitution or other vice-related activities. In addition, both cases touch on the sexual roles that women play — biological mother in one, “temptress” in another. Moreover, the Court in both cases ruled for the government. Yet, the Court applied substantive equality correctly in the first case, but not in the second. This chapter explains how that happened and also addresses privacy issues from the prostitution case.

For years, South Africa looked as if it would explode. The oppressed black majority and its allies were battling the powerful, wealthy, and racist apartheid regime on political and military fronts. In turn, apartheid security forces murdered heroic figures like Steven Biko and tried to assassinate Constitutional Court Justice Albie Sachs, blowing off one of his arms with a car bomb in Mozambique. South Africa's relatively peaceful transition to a multiracial democracy during the 1990s was therefore miraculous, especially compared to the civil wars that have broken out in other nations.

Historians, political scientists, and others offer explanations for why this peaceful transition occurred. Nobel Peace Prize winners Nelson Mandela and Desmond Tutu provided crucial leadership. International political and economic pressure played a role as did global developments such as the end of the Cold War. Most important, many South Africans took to the streets at great personal risk. Despite the country's AIDS pandemic, the massive gap between rich and poor that has helped produce terrible crime, and political domination by one party, South Africa now has a vibrant economy, a relatively strong infrastructure, and a critical press which enhance the prospects for social stability.

Numerous scholars have chronicled South Africa's constitutional revision process.

We live in the age of international human rights. We have witnessed the creation of an International Criminal Court, prosecutions of former heads of state, the globalization of legal norms, and an increased use of international peacekeeping forces. We have even seen the fall of the Berlin Wall, the emergence of many new nations, and the transformation of South Africa.

Freedom of religion is considered among the most important human rights. This chapter analyzes how South Africa's judiciary has addressed religious liberty in comparison with U.S. Supreme Court decisions in the area. My conclusion is that, despite a progressive Constitution informed by international human rights norms, the South African Constitutional Court has generally adopted a formalistic and narrow approach that treats religious minorities as second-class citizens based on Western assumptions. One goal of this chapter is to figure out why the Court has done poorly in this area when it has issued transformative decisions regarding the death penalty, socioeconomic rights, and equality. The answer to this question relates to religion's uniqueness as a human right. This chapter breaks new ground as few scholars have critically assessed the Constitutional Court's overall religion jurisprudence.

The right to freedom of religion is unique because it has caused oppression as well as liberty. It can unleash blissful or deadly sentiments. The Romans slaughtered Christians for sport, Sunni and Shiia fight a civil war in Iraq, Catholics and Protestants battle in Northern Ireland, and Jews fight Muslims in Israel and the surrounding territories.

The First Amendment to the U.S. Constitution is heralded domestically and abroad for protecting freedom of speech and thus promoting democracy, individual self-realization, and the search for truth. This assessment is well justified especially when the United States is compared to authoritarian regimes. One scholar, however, describes the U.S. Supreme Court's First Amendment doctrine as “arbitrary and unpersuasive.” Another writes that it “resemb[les] the Ptolemaic system of astronomy in its last days.”

In particular, the Court has divided speech into “protected” and “unprotected” categories. The Court maintains that laws restricting protected expression, based on the speech's content, must be viewed with great skepticism. Yet, the Court has actually ignored content discrimination in some cases. It has instead used a relaxed scrutiny level and then concluded that the speaker's interest is outweighed by the state's interest. The Court has also on other occasions ignored its usual categorical speech divisions.

In this chapter, I recommend that the U.S. Supreme Court stop the formalism and the inconsistencies. Actually, I go a step farther and argue that the Supreme Court should borrow a page from the way foreign courts, such as the South African Constitutional Court, have explicitly weighed interests and values while also being minimalist when possible.

During constitutional negotiations in the early 1990's, South African communist party leader Joe Slovo broke the deadlock between the predominantly white National Party and the opposition. The Constitutional Court, however, subsequently rejected the Constitutional Assembly's proposed constitution. Few would have thought that the communist party would supply statesmen-like compromises whereas the Court would appear obstructionist. This is only one example of the twists and turns leading to South Africa's 1996 Constitution.

This chapter focuses on South Africa's transition from apartheid to democracy, and on the birth of the United States — the world's oldest constitutional democracy. Further, this chapter compares the South African Constitutional Court's structure with that of the U.S. Supreme Court.

In February 2006, U.S. Supreme Court Justice Ruth Bader Ginsburg told an audience at the South African Constitutional Court in Pretoria that she and Justice Sandra Day O'Connor had received Internet death threats. An Internet posting said they “will not live another week” because they relied on foreign law in their decisions. The American press missed the story initially. Justice Ginsburg used her speech to explain why the U.S. Supreme Court should reference foreign materials. Her speech's title came from the Declaration of Independence: “A Decent Respect to the Opinions of [H]umankind.” She had a sympathetic audience.

The South African Constitution requires the Constitutional Court to follow binding international law and specifies that the Court may examine relevant foreign law. The Constitutional Court therefore frequently cites U.S. Supreme Court cases, though usually in disagreement. The U.S. Supreme Court also has ties with its South African counterparts. Justice O'Connor authored the foreword to an autobiography by former Constitutional Court Justice Richard Goldstone, For Humanity, Reflections of a War Crimes Investigator. Furthermore, Justice Goldstone is friendly with U.S. Supreme Court Justice Anthony Kennedy.

Case 8

A, the country's leading department store, is negotiating with B for B to build a new shopping centre in which A is to rent substantial premises for a new flagship store. During the negotiations, before the contract for A's lease is concluded, B begins the building of the shopping centre, including elements of design and construction which follow the indications which A has given of the layout it will wish to have. A knows that B has begun the building works. When the building work is far advanced, A breaks off negotiations because it has then done a survey of the likely client base, and has decided that a store in that location would not, in fact, be sufficiently profitable. B is left with a shopping centre which he would not have built without a tenant such as A to form the focus for the centre; and he now has a building which is so constructed and organised that he cannot find any alternative department store as the tenant. What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B?

Discussions

Austria

As mentioned in discussing earlier cases, the freedom to negotiate is a cornerstone of contract law, including the freedom to break off negotiations; but it may collide with the mutual reliance on the honesty of the negotiating parties.

Case 11

After negotiations, A and B reach agreement on the sale of A's house to B, but do not comply with the formality requirements necessary within their legal system to make the contract valid. B does not know of the formality requirements. Soon afterwards, A tells B that, because of the lack of formality, he (A) is not bound. B has already incurred expenses in coming to the agreement (such as estate agents' fees and travel expenses). B complains that this was the house of his dreams, and he will now only be able to find a less satisfactory property, given the properties available in the market. What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B? Does it make a difference if:

1. A knew of the formality requirements?

2. A is a professional?

3. B raised the question of the formality requirements at the time the agreement was concluded, but A misled him about it?

Discussions

Austria

It is not entirely certain whether these facts would constitute a case of precontractual liability.

Under Austrian law a party is expected to know the law. §2 ABGB states that ‘[a]s soon as a law has been properly published, no one may be excused on the ground that he had no knowledge of it’.

Case 5

In 1997 A and B became engaged to be married. The wedding was planned for June 2000. At the beginning of the engagement B gave A a diamond engagement ring which cost him €750. In April 2000, B paid a (non-returnable) deposit of €1,500 to the caterers who were to prepare the food for the wedding reception; and in May he made a (non-returnable) advance payment of rent (amounting to €2,000) on a flat which he and A were to rent as their first home together after their marriage. The day before the wedding was due to take place, A told B that she no longer wished to marry him. What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B?

Discussions

Austria

The ABGB includes two provisions on engagements and the consequences of the unjustified breaking-off of negotiations. For some authors the engagement is a form of precontractual obligation, but the majority opinion is that the ‘betrothal’ is a preliminary contract to a marriage with certain characteristic features, such as its lack of enforceability.

§1247 ABGB states in its second sentence that, ‘if one betrothed party promises or makes a present to the other party, in view of the future marriage, such donation can be revoked if, without any fault on the part of the donor, the marriage does not take place’.

Case 7

A and B, both major firms of accountants, negotiate with a view to the merger of their firms. A breaks off the negotiations.

There are three separate situations to consider:

1. A breaks off the negotiations after three years of very intense negotiations in which both parties have incurred considerable expenses, but where the parties recognise that they have not yet reached agreement on all major points and A has not made any statement to B that it is convinced that they will reach final agreement.

2. A breaks off the negotiations quite soon after their beginning, but after the parties have reached agreement on all major points, and only a few minor points remain to be settled. A has not made any statement to B that it is convinced that they will reach final agreement. B has already incurred legal expenses.

3. A breaks off the negotiations when the parties have not yet reached agreement on all major points but A has more than once made statements to B that it is convinced that they will reach final agreement. B has already incurred legal expenses.

What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B in each of these situations if A gives no reason for breaking off the negotiations? Would it make a difference if it (honestly) gives as the reason for breaking off the negotiations:

1. it has received a better offer from C for a merger of A's firm with C's firm;

2. […]

The Common Core Project

Aim and method

Aim

The present volume forms part of a project that started in Trento in 1993 and has produced, so far, ten similar volumes. The aim of the Common Core Project has been defined, and refined, by the general editors of the project, Mauro Bussani and Ugo Mattei, on several occasions. The main aim is legal cartography, that is, to draw a reliable map of private law in Europe:

The research project is meant to be neutral, without any specific agenda for or against further Europeanisation of private law, whether or not through codification. As Bussani and Mattei put it, ‘We are not drafting a city plan for something that will develop in the future and that we wish to affect. This project seeks only to analyze the present complex situation in a reliable way.’ This also means that the legal systems of the Member States are treated on an equal basis; no relations between legal systems, hierarchical or in terms of ‘legal families’, are assumed.

The problem of precontractual liability

Peculiarity of the precontractual phase

The precontractual phase is difficult to characterise and analyse, in both legal and practical terms.

The negotiating parties have entered into a relationship by virtue simply of their negotiations. So they have begun their journey together. But they are not yet in the relationship – the contract – which is their aim. And they may never reach it. The negotiations may fail; and a failure may come sooner or later. It may become clear very quickly to them both that they will never reach the agreement necessary to conclude the contract. But, equally, it may be only after a lengthy exploration of their respective positions as regards the likely terms of a contract, and perhaps only after further information becomes available from third party sources, or the facts surrounding their negotiations change, that one of them decides that the contract is hopeless; or that a better deal is to be done elsewhere with another party. By then, either party may well have incurred significant expenses, as well as having invested time and effort, towards the hoped-for contract. The break-off of the negotiations may seem inevitable to the parties as they together realise that the contract will never be concluded; or it may come as a shock to one party that the other calls off the negotiations when they were so far advanced, or at least where there was nothing to suggest that they were not likely to lead to their fruition in the contract.

Case 3

B enters into negotiations with A about a piece of land that B wants to buy from A on which to build a house. A thinks he is the sole owner of the land. When the parties have reached agreement they make an appointment to sign the sale contract on 2 December. On 1 December A finds out that the land of which he thought he was the sole owner by inheritance from his father is in fact owned jointly by him together with his two sisters who do not agree to the sale of it. A therefore does not sign the sale contract. B has incurred expenses in negotiations (estate agents' fees, travel tickets to visit the land) and has had an architect make drawings for the house. What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B?

Discussions

Austria

Under Austrian law there would be no liability, either under the rules of contractual or delictual liability, or under those of culpa in contrahendo. The expenses B has incurred lie within his sphere of risk, since it was his decision to buy travel tickets and to consult an architect at a time when it was not clear that the contract would be concluded. A's conduct does not amount to chicanery, nor have the rules of dealing in good faith been violated by A. In a decision of 1976 the OGH refused to grant recovery on the grounds of culpa in contrahendo in a decision concerning a similar factual situation.