The study makes a descriptive and analytical study of the development of the dynamic
concept of the rule of law with special reference to the African contribution.
First, the study shows that the Diceyan concept of the rule of law was narrow and
peculiar to the Western liberal legal culture, and that more specifically, the substantive
content of the concept of the rule of law was limited to the first generation of human
rights. In its international and African context the concept was expanded to include
all three generations of human rights and also identified with the concepts of
democracy and the right of peoples and nations to self-determination. The expanded
concept came to be known as the Dynamic Concept of the rule of law.
Secondly, the study traces the origins and development of the principle of equal rights
and self-determination and their extension to all peoples and nations and shows that
these rights are universal, not relative, as they derive from the inherent worth and
dignity of the individual. Also, the study shows that in the African context the three
generations of human rights have been interlinked, made inter-dependent, and then
identified with the rule of law, human rights and the right of self-determination
(perceived as a right to democratic self-governance). Hence, the worth and dignity of
the human personality has been made the fountainhead of human rights and have been
elevated to the substantive elements of the Dynamic Concept of the rule of law and the
basis of the modern African Constitutional State.
Under the Colonial Rule both the Diceyan and the dynamic concept of the rule of law
were not recognised. Instead, Colonial and racist regimes tried to create alternative
institutions of government which denied the oppressed peoples the right to democratic
self-governance and independence. However, Colonial and oppressed peoples relied on
the dynamic concept of the rule of law in their freedom struggles and in the
elaboration of their policies. Hence, the constitutions of all the former colonies in
southern Africa under discussion were to different degrees informed by the Dynamic
Concept of the rule of law. / Constitutional, International and Indigenous Law / LL.D
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/17522 |
| Date | 01 1900 |
| Creators | Motshekga, Mathole |
| Contributors | Van Wyk, Dawid |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (547 leaves) |
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