Law and federal-republicanism: Samuel Rutherford's quest for a constitutional model

[摘要] 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 Niccol�?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.

[发布机构] University of the Free State