Doctoral Degree (Constitutional Law and Philosophy of Law)
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Browsing Doctoral Degree (Constitutional Law and Philosophy of Law) by Author "Raath, A. W. G."
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Item Open Access African philosophical values and constitutionalism: a feminist perspective on Ubuntu as a constitutional value(University of the Free State, 2008) Keevy, Ilze; Raath, A. W. G.English: Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. The Court acknowledged ubuntu as part of South Africa’s jurisprudence and fused Western and African jurisprudence into a new South African “rainbow” jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a “new racism” which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the “Dark Continent”. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africa’s crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the “cultural bomb”, which eroded African values. The publication of Temple’s Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the “sum total of African values”; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africa’s closed, strong communitarian societies unique and not universal, but ubuntu “moral philosophy” proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntu’s eroded traditional African values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor “the Constitution in general and the Bill of Rights in particular”.Item Open Access 'n Kritiese ondersoek na societas, natuurreg en menseregte in die post-Thomistiese regsleer van Antonio Rosmini (1797-1855)(University of the Free State, 2007) Swartz, Nico Patrick; Raath, A. W. G.English: Societas According to Rosmini, society is not a man-made entity or creation, but rather a theistic institution, since it originates from the will of God. Accordingly, human society is founded in the order of God’s Creation. The freedom of the form of human society is realised in a variety of differentiated social forms, namely civil societas, domestic societas and ecclesiastical societas. Rosmini states that social forms are not reducable to simply civil societas, but include human social togetherness. Neither can one social form derive authority from the next. Unlike Thomas Aquinas who models the principles subsidiarity on the principles of hierarchy, autonomy and intervention, Rosmini emphasises the independence of each social form and in doing so he achieves a well-rounded doctrine of human society and social forms. He is of the opinion that the various social forms are closely bound, which means that a human society cannot be discussed without taking domestic societas, ecclesiastical societas and civil societas into account. Each social form forms part of an independent freedom and fulfils a responsibility before God. Rosmini endorses the Thomistic subsidiary principle to the extent that civil societas merely lends assistance and support to, for instance, domestic societas, should the latter community be unable to preserve its interests. On this basis, civil societas may not interfere with the interests of the other two forms. According to Rosmini, every society has a moral substructure which serves as a basis for the rights and obligations necessary for the maintenance of natural law. Social justice is expressed in society by means of the principles of goodwill. Rosmini relates to classical viewpoints where societies are bound to the fundamental moral principles of the central commandment of love, since all human rights are based on fundamental duty. On these grounds, Rosmini presents a platform for cultural discourse and ethical involvement across ideological boundaries insomuch as he is of the opinion that society as a whole stands beneath the general revelation of God. Natural law In Rosmini’s explicit stance on natural law he maintains a primarily Thomistic opinion which originates from his perspective of Divine Providence. Natural law is a manifestation of practical rationality. For example, to come to the knowledge of human rights, human nature and reasoning must be used as guidelines. As such, Rosmini upholds a paradigmatic perspective of natural law where there is a close correlation between natural law and the maintenance of justice in human society. Natural law and justice culminate in the relationship between rights and duties. Rosmini holds that natural law and justice are built upon the maintenance of important moral duties. On this basis, moral values have significant constitutional implications which give expression to the universal principle of love. In this way, natural law forms the foundation of human rights. Human Rights Rosmini’s point of view regarding human rights rests principally on his natural jurisprudence. His focus on justice in human society supports his standpoint on human rights, the jurisprudence of which originates from the Scriptural principle of love towards God and one’s neighbour. On this basis, Rosmini’s stance regarding human rights is closely linked to his theocentric idea of man’s personal relationship with God. His human rights teachings embrace both individual and social rights, the latter being reflected in social, ecclesiastical and domestic societas. Rosmini holds that social justice can only be ensured by the balanced maintenance of all natural rights on both individual and social levels. He is of the opinion that the natural rights of individuals in social entities originate most deeply in the human cry to God. Accordingly, Rosmini’s human rights teachings can be illustrated by his points of view regarding human dignity.Item Open Access Law and federal-republicanism: Samuel Rutherford’s quest for a constitutional model(University of the Free State, 2014-06) De Freitas, Shaun Alberto; Raath, A. W. G.English: Accompanying early seventeenth-century Europe were challenges related to the limitation of political power, civic participation in public affairs and the attainment of the public interest. Absolute rule and the absence of the individual as well as of the collective in political activity required urgent attention. The republican quest towards a much-needed rearrangement of the guardians and executors of political power as well as a more inclusive role to be played by the individual and the collective was accompanied by a view on the law as something beyond merely law enforced by the governing authorities. At the time, England and Scotland served as a scholarly hub where constitutionalism was vigorously addressed. The seventeenth-century Scottish theorist Samuel Rutherford contributed towards the formulation of a constitutional model not only suited to the context of his time but which also has overlapping value for contemporary theories on constitutionalism. Rutherford accomplishes this with special emphasis firstly on an understanding of the concept of republicanism, an understanding that was coupled with a rich legacy spanning many centuries and including Ancient Hebrew, Classical Greek and Roman, Patristic, Medieval, Canonist and Scholastic thinking. Secondly, Rutherford argues for the importance of the Rule of Law idea, together with the idea of the covenant. The encompassing framework within which a constitutional model was to be sought was against the background of the view that the law transcends the laws applied by the civil authorities, mere positivism and pragmatism. Rutherford reiterates the Ciceronian idea that the law is something more than Niccolό Machiavelli and Jean Bodin’s command of the ruler. Thirdly, Rutherford’s constitutionalist thinking also includes valuable insights pertaining to the protection and maintenance of religion and of the conscience. This Rutherford does in reaction to the oppression of religion by the authorities and a more enlightened development in seventeenth-century Britain by which the emphasis was placed on the ‘inner light’ within man, and which was supported by influential theorists such as Grotius, John Milton and John Locke. Emanating from this study are also enduring insights related to constitutionalism such as the importance of social contractarianism; the centrality and superiority of natural or moral law; the mutual relationship between rights and duties; every individual’s participation and duty towards a common good, which transcends mere self-interest; the ruler’s accountability primarily before the moral law; the office of the ruling power and its universalist and immutable normative substance; and activism against physical and psychological oppression.