Research Articles (Constitutional Law and Philosophy of Law)

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Browsing Research Articles (Constitutional Law and Philosophy of Law) by Author "Raath, A. W. G."

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    Celebrating the common law rights of man - a note on Blackstone's work on natural law and natural rights: chronicles
    (Faculty of Law, University of the Free State, 2009-12) Nydam, L.; Raath, A. W. G.
    William Blackstone's (1723-1780) Commentaries, a four-volume work, the first edition of which appeared in 1765, was produced in an epoch of natural law theory which marked the transition from "justification" to the "exposition" of natural law precepts and the shift from the ground of obligation of natural law to the formulation of detailed rules in natural law jurisprudence. Similar in style to E de Vattel's Le Droit des Gens, ou Principes de la Loi Naturelle (1758), and T Rutherford's Institutes of Natural Law (1748), Blackstone focused on the detailed rules of natural law rather than indulging in the philosophical underpinnings of natural law theory as such.
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    Huber, natural law and the reformational basis of the iurisprudentia universalis
    (Faculty of Law, University of the Free State, 2005-12) Raath, A. W. G.; Henning, J. J.
    English: Ulrich Huber's work, De Jure Civitatis, contains the first serious effort to apply the Reformational perspectives on natural law to the field of Public Law. Not only did he integrate the perspectives on natural law with his views on Public Law generally, but he used the idea of natural law as the basis for jurisprudence as a whole (iurisprudentia universalis). In his opposition to the natural law theories of Bodin, Hobbes and Pufendorf, Huber maintained the perspective that law and justice cannot be seen as the products of utility or be determined simply by their usefulness. To Huber the principles of good and bad, lawful and unlawful, just and unjust, are based on immutable principles superceding human manipulation. For these reasons, Huber emphasises the fact that natural law is not the product of man's reason, but is based on the eternal will of God. However, man is able, with his reason, to determine the will of God from its revelation in God's moral law. In effect, then, God's eternal law is the fundamental source of natural law. As such the validity of natural law principles are not subject to an agreement among men, or to the principles of civil law, but they precede the state and the authority of government. Not only do these precepts of natural law apply as normative provisions to all elements of Public Law, but also to the rights of man (among others to life and property) irrespective of the nature and composition of the state. Huber's response to Hobbes's natural law theory in particular, highlights the importance of establishing the principles of law and justice not susceptible to the manipulation of political authorities and government authority. As such Huber's theory of natural law was not only an important contribution in his own time, but he postulated an alternative which may serve as an essential corrective in legal systems where the formal notion of the state subject to law, does not penetrate to the level of informing the material idea of the law state in a fundamental sense.
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    The impact of Scholasticism and Protestantism on Ulrich Huber's views on constitutionalism and tyranny
    (Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
    English: Ulrich Huber's (1636-1694) contribution to public law was initiated with his lectures on the general principles of constitutional law at Franeker. The fruits of his work culminated in his De Jure Civitatis. The era in which Huber produced this work was generally characterized by the emergence of rationalism and enlightenment in Dutch jurisprudence. More specifically Huber's work reflects the influence of the transition from enlightened absolutism to democratic government based on the will of the subjects. His views on popular sovereignty culminated in Huber's theory of limited government and resistance to tyranny. A study of the Latin text of Huber's pioneering work reveals valuable perspectives on these trends in the transition of Dutch jurisprudence from scholasticism to enlightenment.
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    Political Covenantalism, sovereignty and the obligatory nature of law: Ulrich Huber's discourse on state authority and democratic universalism
    (Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
    English: Ulrich Huber's De Jure Civitatis, published in Latin, has never been translated into any other language, making this a relatively unknown source in constitutional law. In this work Huber responds to the state absolutism of Machiavelli and Hobbes. Although Huber objects strongly to Hobbes's enlightened absolutism, his own theory of the double social contract scheme harbours distinct elements of political universalism.The possibilities for political resistance by subjects in the state are very limited. Although Huber's theory of constitutionalism prepared the way for the enlightened individualism in the theories of Locke and Rousseau, his constitutional law theory shows a clear preponderance towards political absolutism.
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