Freedom produces prosperity. This fact is put beyond question by indices like the Fraser Institute’s Economic Freedom of the World report, Freedom House’s Freedom in the World report, and the World Justice Project’s Rule of Law Index. The countries where the freedom of the individual – including their right to own private property – is respected and protected, are the countries that consistently top the indices that measure human development and prosperity.

Life expectancy is the highest and malnutrition lowest where liberty is prioritised. On the other hand, where the state and its ideological goals are placed front and centre as the organising principles of society, there is destitution. Most importantly, the Fraser report shows that the poorest 10% of the people in countries with freer markets have incomes six times higher ($10,646) than their counterparts ($1,503) in the most regulated markets.

These are the products of liberal thought, liberal law, and liberal government.

In the Daily Maverick article ‘No country for Libertarian men’ “Professor Balthazar” launches a frontal assault on libertarianism, an American word for what we know in South Africa as liberalism, or so-called “classical” liberalism. Despite many other problems with his argument, Balthazar correctly identifies some of the key aspects of liberalism: individual liberty, personal responsibility, and an insistence on limited government. We would add constitutionalism and the Rule of Law as further aspects. These are the things that have created immense levels of wealth for the people of every society that chose to adopt them.

South African politics is clearly dominated by race. It is the lens through which we perceive all issues. Any proposal to solve our problems which does not take account of race is rejected outright. Thinking about it rationally, however, this sentiment can, and has, only perpetuated racialism. The law, understood to be an institution that protects people’s rights to liberty and property, should only concern itself with the circumstances of the case as they relate to the individuals in question, without regard to their race.

It is somewhat disconcerting that Balthazar likens liberalism – the very idea of freedom itself – to a “white male norm” or “standard”, as if the right to be free from coercion by the heteronomous power of the state is an exclusive entitlement of white men. We fundamentally disagree. Everyone should – must, in fact – have the right to determine what is best for themselves, especially in light of South Africa’s history of state oppression.

There has been a relatively consistent refusal among commentators to acknowledge that liberal theory represents a legitimate (rational even) answer to the problem of conflict over scarce resources that has bedevilled mankind since the beginning. Here, the conflict has taken a racial character, with the various governments that have and still rule here classifying us, to varying degrees, according to race and other immutable characteristics. In the course of this refusal, a strawman argument commonly employed against liberals is that they do not care about righting the wrongs of the past. This criticism underlies Balthazar’s article.

The problem with this argument is it ignores the key role restitution plays in classical liberal thought on property rights. To the classical liberal, Murray Rothbard, property rights lie at the heart of recognising the inherent dignity and worth of the individual to decide for themselves. He wrote that property rights provide the very basis of human rights, without this recognition, rights become contradictory and vague, and therefore open to abuse and weakening by government.

Given this principled stance, which led liberals to oppose apartheid, it makes sense then that liberals continue advocating for the restitution of property to those who had it seized by the state. If liberalism did not care about past wrongs and restitution, it would make for a poor legal philosophy. Where the dispossessor – given South Africa’s past, this is almost invariably the government – can be identified, they have an obligation to restore the victim to where they were before the dispossession.

South Africa has had a land restitution programme – supported by liberals – since the end of apartheid. Restitution is enabled by section 25 of the Constitution, arguably the most important and transformative provision in our highest law. Millions of black South Africans had their property seized and the opportunity to own property denied to them in the previous century, and the Constitution sought to put this right.

Balthazar claims classical liberalism, and particularly non-racialism, are “at war with the innermost commitments of the Constitution”. But the contrary proves true.

Non-racialism is a founding value in section 1(b) of the Constitution. Section 1, by virtue of being the most difficult provision to amend in our highest law, is the embodiment of the innermost commitments of the Constitution. Furthermore, the Constitution is itself a product of the liberal world order in which we find ourselves today. Indeed, constitutionalism – the only useful definition of which is an institution that limits the scope and power of government – is one of the most successful liberal phenomena, next to free markets, that have produced unprecedented prosperity around the world.

Balthazar, claiming to be one of South Africa’s foremost legal minds, finds things in the Constitution that are in fact not there. He writes that the Constitution eschews “the previous white male standard by which to judge conduct or performance” and that there is an imperative to ensure “that the vast majority of CEOs and other leaders are black”. But the Constitution does neither.

The Constitution abolished apartheid and obligated the state to take measures, within the framework of the liberal phenomenon of constitutionalism, to undo the damage done to property rights and legal equality. The Constitution also nowhere requires demographic representivity in the private sector. It requires it in two respects exclusively: in the public administration and in the judiciary. Elsewhere, section 1(b) standard of non-racialism applies. If the Constitution contemplated racial representivity in the private sector, it would simply have provided so, given that it had already accepted the premise for the courts and civil service.

To imply that liberals have made no proposals for the alleviation of poverty is also disingenuous. It is laughable, in fact, given there is now a sustained push by the socialists whom Balthazar supposedly supports, to change the liberal Constitution to weaken private property rights and, as a result, entrench the otherwise temporary condition of poverty.

Liberals propose allowing the poor to take ownership of property improperly held by the state. State ownership introduces ambiguity to property relations since, while in theory all citizens “own” the state in some sense, we cannot exercise this right in any meaningful way, like selling our shares or having the state declared insolvent and thus liable to have its assets distributed to creditors. This “common” ownership we all have in South Africa is useless, and therefore state ownership subverts the liberal rationale for property rights and especially the law: to peacefully resolve conflict over finite resources.

We are glad that Balthazar quotes Adam Smith. Smith was by no means a complete classical liberal, but neither was he the big government welfarist Balthazar tries to make him out to be.

In his Lectures on Jurisprudence, Smith said the “four great objects of law are justice, police, revenue, and arms”. He then methodologically set out the role of government by law. Recognising the notion of natural individual rights, Smith wrote that as a matter of justice, the government must protect the private property rights of its subjects. A Scotsman, Smith elaborated on property law in great detail. In South Africa, our very own, majestic Roman-Dutch common law system has the same law of property that guarantees protected private property rights for all, regardless of race.

We live in a better South Africa today because, with the adoption of the Constitution, we made a lot of progress towards respecting individual liberty. We still fall short in many areas: the precariousness of women’s property rights in communal areas and the failure of the government to properly undo apartheid property law are but two examples. Indeed, millions still live on municipally owned land as tenants because their ancestors were deemed “temporary sojourners” in white South Africa. The democratic government’s failure to give them the title deeds they are naturally entitled to represent a great failure to ensure equality before the law regardless of one’s racial identity.

The government continues to classify us not as individuals who possess inherent rights, but as either a part of the racial collective that was denied rights or the collective that infringed rights. This was exactly the same logic behind Afrikaner nationalism, and we would all be better off if we rejected it in favour of those liberal values that respect human dignity and liberty, and which will soon cause the end of absolute poverty where they are respected. DM