In Favorem Libertatis : The Prospect of Liberty in the Transformation(isation) of South African Law

Abstract

The idea of the social contract has in many ways always been primarily concerned with the distribution of freedoms and powers between the State and legal subjects. It has effectively become trite that the State may, through legislation, limit if not extinguish the liberty of individuals. At the same time, there appears to be widespread agreement that the law is at least also relevant to the protection of the individual’s freedom to self-determine their own affairs.

One school of thought, libertarianism, elevates the recognition and protection of individual rights, including private property rights, to the main, if not the sole, purpose of law. Another, distinctively South African school that may be referred to as Transformationism, does not, and appears willing if not eager to sacrifice individual freedom on the altar of wide-ranging socio-economic and political change in society.

In this study, three broad, multi-faced objectives are pursued, each roughly corresponding to Chapters 2, 3, and 4 respectively.

First, the legal-jurisprudential component of libertarianism is extracted from its political-philosophical discourse and described and considered in detail. This includes, primarily, a determination of what libertarianism’s approach to the individual’s place in society entails, how the individual’s inalienable rights were brought about, and how and why the law must protect those rights. Some of the legal implications of this state of affairs are also identified.

Second, the emerging ideological basis of new South African law, mostly in the form of legislation and superior court judgments, called “Transformationism”, is considered. Some of the latent undercurrents of this school of thought, including so-called “Critical Legal Studies”, “Critical Race Theory”, and “transformative constitutionalism”, and how certain ideas from these currents have made their way into the law are also discussed.

Third, key aspects of Transformationism are selected for a theoretical reply by libertarianism. Those aspects are the Transformationist aversion toward the freedom of the individual (particularly when it comes to private property rights), the emphasis on so-called substantive equality in legal policy, and the subversion of constitutionalism, understood to be a doctrine aimed at limiting the scope and exercise of government power.

The study concludes that the best account of law is that it exists chiefly for the recognition and protection of individual liberty, and that third parties, including the State, may not interfere uninvitedly in the affairs of individual persons unless they themselves are interfering in the affairs of others. In other words, the law’s role is fixed and protective, not creative and offensive. South African law (indeed all law), particularly having regard to the contemporary influence of Transformationism, should therefore be developed in favorem libertatis.