Masters Degrees (Constitutional Law and Philosophy of Law)

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Browsing Masters Degrees (Constitutional Law and Philosophy of Law) by Subject "Dissertation (LL.M. (Constitutional Law and Philosophy of Law))--University of the Free State, 2003"

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    Die regsfilosofiese implikasies van communitas en die natuurregsleer van Thomas Aquinas (1225-1274)
    (University of the Free State, 2003) Swartz, Nico Patrick; Raath, A. W. G.
    Abstract not available
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    Samuel Rutherford on law and covenant: the impact of theologico-political federalism on constitutional theory
    (University of the Free State, 2003-11) De Freitas, Shaun. A.; Raath, A. W. G.
    English: This thesis primarily concerns the constitutional theory postulated by the 17th-century reformed Scottish theologian and political theorist, Samuel Rutherford. In this regard the angle of approach is done against the setting of the political and constitutional concepts arising from theologico-political federalism formulated by the federalists – Heinrich Bullinger, Philippe DuPlessis-Mornay and Johannes Althusius. Included among these concepts are: the law – its content and status, the separation of powers principle, the office of magistracy, the civil and religious duties of the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and active resistance to tyranny. In addition, theologico-political federalism entails in essence the idea of the biblical covenant, which concerns the biblically confirmed bilateral, mutual and conditional relationship between God and the Christian Community, as well as the political covenant between government and the governed within such a community. It was especially the relevance of the Divine law (summed up in piety and civility) as condition of the covenant that was emphasised by the federalists, and which gave a unique meaning to the concept of sovereignty as branch of the primary and absolute holder of sovereignty, namely God. It was to be from this basis that the content of the separation of powers principle, the office of magistracy, the election of the ruler, sovereignty, the relationship between church and state, and resistance to tyranny, were to be determined and given perspective. This thesis not only confirms that Rutherford and the mentioned federalists had much in common regarding political and constitutional content, but also and more specifically, that Rutherford’s view on the biblical covenant and the law as foundation of politics and constitutionality was similar to those of the federalists. It is also confirmed that theologico-political federalism rates among one of the most valuable and insightful formulations emanating from reformed constitutional thought in general. Theologico-political federalism, although not the only stream of thought to be applauded for its contribution to Western constitutional theory in the 16th and 17th centuries, contributed much to such theory. Amidst the development of secular constitutional theory during the period of the Reformation, the federalists provided a model of how the constitutional dispensation of the Christian Community should be structured, and as point of departure, political society’s status as a party to the covenant with God was postulated, this covenant relationship acting as the fundamental framework for political content and activity – albeit within the absolute grace and predestination of God. The personal relationship between God and the political community as not only an effective constitutional model, but also a biblically qualified and practical constitutional theory was proposed by the federalists. It will also be confirmed that not only did the federalists provide a well researched constitutional model to be applied to the ideal Christian Community, but also assisted in championing constitutional values such as liberty, equality, the rule of law, limited governance, and democracy. In conclusion, may it be said that it can be deduced from this thesis that Rutherford’s participation in the continuation and development of the legacy of theologico-political federalism was substantial, and consequently it is hoped that his already-respected contribution to reformed constitutional theory is duly enriched.