Office of the Dean: Law
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Browsing Office of the Dean: Law by Author "Raath, A. W. G."
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Item Open Access 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.Item Open Access 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.Item Open Access 'n Kritiese analise van die begrip "Administratiewe Geregtigheid" in die grondwet, met besondere verwysing na die konkretisering daarvan in die Wet op die Bevordering van Administratiewe Geregtigheid, 3 van 2000(University of the Free State, 2008-05) Maré, Tjaart Jurgens; Raath, A. W. G.English: South Africa has an extensive heterogeneous population where drastic and far-reaching differences regarding community values and acceptability norms exist. These are emphasised by the serious imbalances regarding socio-economic circumstances. The late establishment of a democracy in South Africa was preceded by a traumatic period of intense suffering among a large section of the population. One great advantage of South Africa becoming a democracy at such a late stage is the fact that the country could learn from the political and constitutional successes and failures of other countries. This aided the establishment of a new order to ensure justice and stability for all South Africans. The final Constitution was developed after five years of intense negotiations. To address imbalances of the past, the Legislator deemed it necessary to write the concept administrative justice into Section 33 of the Constitution. This is currently a fundamental human right which is a right every citizen is entitled to. The concept administrative justice contained in Section 33 of the Constitution and its concretisation in the Promotion of Administrative Justice Act are certainly not perfect in all respects, but, in spite of this, is a significant effort on the part of the Legislator to create a basis for peace, justice, political tolerance and prosperity in South Africa. The foundation was built according to a concept of administrative justice which can develop further. In this thesis the constitutional embodiment of administrative justice is analysed through various approaches. A critical analysis is made with specific reference to case law as well as legislation. The emphasis is placed on the review aspects as mentioned in the Promotion of Administrative Justice Act, and developmental aspects of the concept will be investigated further. Attention is paid to the history preceding the current concept of justice. This will reveal both the essence and the problems surrounding this concept that has been around for years. A closer investigation of the practical application and influence of administrative justice on the private law fields, more specifically, the law of delict and contractual law will shed further light on the concept of justice. The concept administrative justice does not only belong to the state-subject relationship, i.e. vertical application of understanding, but also has an impact on the relationships of the private individual or institutions – the so-called horizontal application. The embodiment of the concept administrative justice in legislation caused a drastic change in the approach of the courts to the application of justice. The application of the courts of legislation, such as the "ouster clauses", and the disadvantage it has for the individual now belongs to the past. The focus of this thesis falls on key elements pertaining to the concept of justice, namely, lawfulness, reasonableness and procedural equity. However, there is much cause for concern of state institutions and different bodies being excluded in the definition of administrative action in the Promotion of Administrative Justice Act. It has the potential to become a powerful barrier in the future development of administrative justice. It is clear that all administrative action should firstly be tested to the definition before concentrating on its different review grounds. The definition of an administrative action is compiled from three different definitions and is, as such, interpreted with difficulty by the general civil servant in his/her daily action in the workplace. A further development of the above-mentioned act and the provision of a guideline, such as the Code of Good Conduct and the implementation of courts specialising in administrative law, will be welcomed to help further establish and develop the concept administrative justice. In essence, this thesis attempts to critically analyse the concept administrative justice in Section 33 of the Constitution with specific reference in its concretisation in the Promotion of Administrative Justice Act.Item Open Access 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.