The Land Is Ours by Tembeka Ngcukaitobi

Author:Tembeka Ngcukaitobi
Language: eng
Format: epub
Publisher: Penguin Random House South Africa
Published: 2018-01-22T05:00:00+00:00

Intellectual influences on young Seme

When Seme was at Oxford University and at Middle Temple Inn, between 1906 and 1909, the study of constitutional law included writings such Montesquieu’s monumental study of political theory, The Spirit of the Laws, and the works of constitutional theorist A.V. Dicey. Law students voraciously read and discussed Dicey’s writings. His important study titled Introduction to the Study of the Law of the Constitution, made the case for the rule of law, and rejected the monarchical system. Texts such as these shaped the thinking of law students of Seme’s era. Montesquieu, who had written in the eighteenth century, was an ardent supporter of the republican form of government, founded upon the virtue of equality:

[It] is to be observed that what I distinguish by the name of virtue, in a republic, is the love of one’s country, that is, the love of equality. It is not a moral, nor a Christian, but a political virtue; and it is the spring which sets the republican government in motion, as honour is the spring which gives motion to monarchy. Hence it is that I have distinguished the love of one’s country, and of equality, by the appellation of political virtue.2

Montesquieu believed in a government of laws. Every nation should be governed by a ‘polity or civil constitution’ since ‘[no] society can subsist without a form of government’.3 Dicey’s first volume in the law of the study of the constitution was published in London in 1885. By the early 1900s, it was one of the most widely read books in constitutional law and political science at the English universities. In the book Dicey identified three principles that undergird the rule of law. The first was that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint’. The second was in truth a principle of equality: ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’. Finally, Dicey noted that the rule of law was intrinsic to the UK legal system because rights to personal liberty resulted from judicial decisions. This was in contrast with countries where such rights could be taken away by political conduct. Dicey elaborated on the meaning of the rule of law as follows:

It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.

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