Before we dig deeper into this issue it is apt note that the Brazilian scholar JG Merquior in his book Liberalism Old and New identified a taxonomy of over 30 varieties of liberalism.
Merquior’s main insight, a view shared by Jeremy Waldron (1987), is that it is perfectly possible to envisage a situation in which one species of liberal thought were to die out, the main tenets of liberalism can remain in one form or the other.
Liberalism is not a single idea or ideology but a large umbrella under which is housed many different versions of liberal thought on what is or ought to be the “good life” so long as it is committed to the ideal of individual choice.
In general, the dominant liberal values – as we often observe in public discourse – place emphasis on four cardinal liberal principles: tolerance, freedom from abuse of power, freedom of individual pursuits, and association with ethical plurality.
In its expanded form – as a version of liberalism in South Africa strongly identifies with – is to defend the sanctity of private property and the free market system.
One need not go into a long debate about whether this represents the entire corpus of liberal thought or not. One will easily find that this is not the case. Just because some liberals rabble rouse about some things more than others does not mean that all of liberalism is of the same ilk.
South Africa’s constitutional framework is premised on liberal values with a social justice ethos embodying its undercurrent and the intended outcome of its tenets.
The imprint of the influential philosopher John Rawls also runs through the Constitution’s premise but social justice perspectives are often neglected in public debates by mainstream liberals. There is often a deafening silence.
Our Constitution makes provision for both first order (the basic rights) and second order rights which are focused on distributional and socio-economic outcomes.
Indeed, the very basis for placing foundational rights in the context of the debate on justice is whether one always gives preference to property rights over/above distributional claims or outcomes.
One may even read Rawls as saying that without justice, foundational rights will inevitably fall sway to more illiberal measures by frustrated members of society in which protection of individual liberty translates into protection of privilege at the expense of concerns about daily bread-and-butter concerns.
South Africa is in the midst of that very question between constitutionalism versus illiberal measures as the weight of historical and present-day injustice – perceived or real – is galvanising a new political maelstrom.
Rawls marks a significant revision or take from the often socially blind utilitarian version of liberalism with its over-emphasis on rational beings, property rights and self-maximisation.
At least Rawls concedes that having a telos (individuality as a means to serve an end), not the worship of individuality just for itself, helps to deal with some blind spots in absolutist versions of liberalism.
The Rawlsian shift itself also impinges on the construct of social relations from self-maximisation to encumbering parochial self-interestedness for co-operation if the higher goal is a just and equal society.
In this context, liberals’ values seek from individuals not only protection of their individuality but whatever blossoms from individual pursuits advance social relations and in so doing inverting the purpose of liberal values as solely self-centeredness to collective development.
This is contra the underlying premise of the proponents of the open opportunity society model.
In the latter version of liberalism individuals take sole responsibility of their fate without a history of political and economic disadvantage impinging on how they would or are expected to perform in this ahistorical version of liberal society.
It is within this context that one can envisage that both property rights can be encumbered and that unbridled individualism at the expense of the mission for a just and good society itself would be floored by the diverse interests and developmental goals the Constitution sets as its vision for the new South Africa.
A range of constitutional cases amply demonstrate how this vision of a developmental and encumbered liberalism is at the core of our liberal Constitution.
It is something the now forgotten scholar, Judith Shklar, would have applauded of the South African constitutional architecture as the Constitution recognises that the forward movement of liberty cannot ignore or obfuscate past structural disadvantages if those most harmed by it are to get a leg-up in the new constitutional dispensation.
Rectification of injustice is an ongoing process the Constitution envisages and note that it ends with its creation. Those subjected to the misfortune of being black had no doing in their social misfortune and so do not take the Constitution, like some liberals like to do, to suggest that everything is simply a new beginning and a clean slate.
Shklar’s approach would not just be to focus on settling the foundational pillars of a liberal society but also how liberal society should make redress for the ills of the past if the whole of society is ever to move forward. We are in the throes of it now as we debate the issue of land and the expropriation clause in the Constitution.
This is why it is possible to explain liberalism both in terms of its extreme versions of individualism and minimalist state to more social democratic versions in which the state takes on a more developmental and redistributive responsibility.
Even in so doing, as to what the precise measure of state intervention and reliance on individuality works for the Rawlsian vision of the idea of good and just cannot be determined in theory but is crafted from practice and experience.
Things can go wrong and not all members of society may want the Constitution to move things in the same direction.
South Africa’s current journey on the path of greater inequality should not be read to mean that the Constitution has failed nor the liberal ideal abandoned but clearly the continuity of inequality threatens the entire edifice of the present constitutional architecture.
The second is that individuality cannot survive in the face of structural inequality because the lack of common material assets means that pursuits by individuals – even under the moniker of open opportunity society – is moot when you realise that a common fate is preserved for you because of who you are either in terms of your race, religion or class.
In this sense, second order rights cannot be achieved if individuals are victims of past group-based policies that continue to influence their employment prospects in a free market. Some excellent economic work has been done by economists George Akerlof and Raj Chetty on the question of identity and neighbourhood effects on employment prospects.
It is the “hidden hand” of institutionalised economic bias that can only be rectified through corrective measures. Our Constitution seeks to rectify these biases.
The choices such preferred individuals have are limited. Even in a politically liberal society self-interest cannot be pursued through the powerless and ineffective self but through collective action.
This is why the structural inheritance of the past that shapes future opportunity matters, especially in our race-based society, and as a result spurs on any form of corrective measure through group politics rather than relying on the commanding heights of individuality and personal choice to break open the chasm of opportunity.
It is no surprise then that such neediness for a voice – out of necessity – is given a cause either through processes of self-organisation into interest groups or through the populist political machinery. The communitarian instinct in the context of pursuing absolutist versions of liberal politics at all costs will triumph over individual choice.
Communitarian politics – or mob rule as the liberals like to decry – is a product of illiberal liberalism pivoted around absolutist notions individuality and seeking one-sided constitutionalism.
The third is that liberalism – not in the constitutional sense but as a form of political activism – tends to focus so much on state power and abuse that it often denies the reality and presence of how power manifests outside of the state.
One of the weaknesses in liberalism – especially on the question of power – is that it assumes that the state exists as an entity on its own. It is not. In this regard the Italian Marxist, Antonio Gramsci, provides a more useful insight: the state is a network in which its own power is not often only the product of itself but a construct of relations it has with civil society – this includes corporations. Gramsci articulated this network of power as the exercise of hegemony.
Liberal activists need a much more nuanced view of power and its workings.
Liberal newspapers should be equally sceptical and cynical of state power and corporate power. Corporations are organised collectives on behalf of a group of shareholders and not individuals, so their rights should not trump individual rights. Corporations often enjoy greater freedoms as a form of collective agency than individuals do.
This is why inequality and the rise of plutocracy (moneyed elites) which shape political outcomes and in turn public choices should be a concern too for liberals. This is why we need more transparency around party funding so voting truly counts and democracy is neither captured by moneyed elites or unelected experts.
Our Constitution offers a versatile framework for South Africa’s unique conditions of diversity but the basic rights model cannot be turned into broader socio-economic claims unless a more just and development orientated value system flourishes. DM
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