n Tydskrif vir die Suid-Afrikaanse Reg - Paradise lost : the history of constitutionalism in Africa post independence
|Article Title||Paradise lost : the history of constitutionalism in Africa post independence|
|© Publisher:||Juta Law Publishing|
|Journal||Tydskrif vir die Suid-Afrikaanse Reg|
|Publication Date||Jan 2009|
|Pages||290 - 322|
ISI Social Science
The Greeks were among the first to postulate the existence of certain fundamental principles of law and justice which could not be nullified by man's will. At a very early date the Greeks discussed the dilemma confronting an individual who faces a law enacted by a public authority which runs counter to good reason. The dilemma formed the basis of Sophocles' tragedy Antigone. In this tragedy Creon, king of Thebes, believes that as ruler of Thebes his declared will is the law. Socrates by personal example gave significance to this dilemma by preferring death rather than submit to an unjust law. The thoughts of the Greeks on law and government were however the most fully developed by Aristoteles. Aristoteles predicated constitutionalism, by which he understood the taming of power under law. He condemned that kind of government where the people, incited by demagogues, acknowledged no legal restraint. There must be not only law and order, said Aristotle, but good law and order. This to Aristotle meant government - and freedom - under law. This illustrated the Greek conception of the supremacy of the law. Herodotus propagated the concept that although the Greeks were free men, they were not free in every respect : the law was their master. The law was also applicable to the rulers. For the Athenians true democracy was synonymous with rule of law.
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