There has been one constant in South African constitutional discourse since the 1980s: Professor Dennis Davis. He has outlived most of his sparring partners in the discourse, and while he has changed views on occasion, Davis has remained relatively committed to the ‘constitutionalism’ of social engineering in a leftward direction throughout.
Imagine my surprise when I discovered that he recently (nominally, but notably) defended the right to private property against the militant socialism espoused by parties like the African National Congress (ANC) and Economic Freedom Fighters (EFF). When the left’s chief jurist starts raising concerns about the policy direction of the left, you know things are getting serious!
The legal thought of Dennis Davis
Throughout the 1980s and 1990s Davis was one of the primary voices against that crucial feature of liberal constitutional jurisprudence: the separation of the ‘public’ and the ‘private’. To Davis (and many others in the leftist legal tradition), the ‘private sphere’ is a fiction – the idea that government must be ‘limited’ from interfering in this arbitrarily privileged arena was thought out by the wealthy to protect themselves from legitimate grievances from the disadvantaged.
There is no ‘public sphere’ and ‘private sphere’, there is only social justice and injustice.
Alongside fellow leftist jurist Hugh Corder, Davis wrote in 1988 that, ‘It is axiomatic that the comprehensive regulation of production and allocation of resources is of fundamental importance to the well-being of any society’. In the economy in particular, this approach has brought about a merging of public and private interests.
Corder and Davis criticised the market economy and freedom of contract as ‘sacred cows’ that must be ‘adapted’ in today’s ‘modern, interventionist society’ where ‘substantive justice’ is prized. To them, ‘liberal capitalism’ must take a back seat to social justice.
Some years earlier, in 1980, Davis wrote that the civil liberties ordinarily associated with liberalism were insufficient for justice and peace, and that South Africa would need to ‘change [those] aspects in the socio-economic basis of a society that lead inevitably to exploitation, injustice, and violence’. Davis sought ‘an entirely new concept of human rights’ based in ‘the redistribution and reallocation of wealth and resources within our society’. Only once this was done could the liberal approach to human rights become practically applicable.
His 1999 book, Democracy and Deliberation, is a comprehensive statement of the general leftist approach to the South African Constitution. It contains an elaborate explanation of why the Constitution is (ostensibly) ‘incompatible’ with Isaiah Berlin’s ‘negative conception’ of freedom (civil liberty). To Davis, the Constitution envisages a ‘positive freedom’ (equality of outcomes) that the government must provide. The Constitution has a ‘transformatist purpose’ that necessarily includes the scrutiny of ‘private power’.
In 2008 – repeating sentiments from Democracy and Deliberation – Davis wrote that ‘the transformative character of the Constitution envisages substantial, almost immediate change in the socio-economic structure of society’.
Needless to say, I dismiss this conceptualisation of the South African Constitution as ipso facto invalid. A constitution is an institutional instrument that subjects the otherwise legally sovereign political authority to legal constraints. The purpose is to afford legal subjects – ordinary people and enterprises – a large degree of practical protection and autonomy from the passing political preferences of the elite.
Davis was, and remains, an advocate of a contrary approach that departs radically from constitutionalism as envisaged above. Davis’s constitutionalism – much like that of the Constitutional Court today – demands the wholesale, coercive restructuring of private society.
To a liberal constitutionalist like myself, the EFF, the SACP and the radical wing of the ANC perfectly manifest Davis’s constitutional thought. After all, their National Democratic Revolution ideology requires of them to bring speedy, militant, and ‘socially just’ change to the whole of South African society, regardless of any ‘bourgeois notion’ of a ‘private sphere’ that must be immune to the political agenda of the government of the day.
Davis today
In a contribution posted on a legal blog in June, Davis now writes of the ANC abandoning the constitutional project in favour of State Capture, and its apparent intention to seek ‘a coalition with a profoundly anti-constitutionalist party’ – the EFF – after the 2024 general election. He sketches a not-inconceivable picture of what this might look like in practice:
‘An increase of appointments to the judiciary of those deeply sympathetic to a populist project can be projected. Protection of private property can be severely weakened so that arbitrary confiscation can take place. In addition, the nationalisation of the Reserve Bank and arguably commercial banks will be implemented, as well as the eschewing of any private sector involvement in the reconstruction of the crumbling infrastructure of the country, notwithstanding almost non-existent public resources.
The present constitutional project will be dismantled, supported no longer simply by a small vocal minority but by the government of the day, under a discourse that the Constitution is a Eurocentric construct sourced in Western countries as opposed to a text based on African legal traditions. Consequently, under this form of populist project, amendments to repeal a series of civil, political and economic rights presently contained in the 1996 Constitution will take place; that is if a state of emergency is not enforced earlier.’
A defence of private property – the great Satan to Marxists – and commercial banks – perhaps the epitome of the parasitic, non-productive labour that manages the capitalist system’s resources – from Dennis Davis himself. What is the world coming to?
I do not think Davis has abandoned his ‘constitutionalism’ of social engineering. Davis would stand by what he wrote before and claim that the ANC and EFF today are distorting what, in his mind, would be an appropriate kind of transformation. Indeed, he writes that an ANC-EFF coalition would not only be ‘at war with any notion of constitutional democracy’, but also with ‘the progressive kind that was clearly envisaged when the 1996 Constitution was drafted.’
Davis, and many well-intentioned activists on the left, ultimately make the same mistake that I have often criticised communitarian conservatives for: they believe that government must be empowered to ‘do good things’ – defined, of course, according to their own ideology – but they forget that the power government is granted to ‘do good’ is the same power that government will eventually use to do bad.
Constitutions and (real) constitutionalism are devised precisely to, imperfectly, protect against this eventuality, and the more a constitution is watered down to allow government to ‘do more’, the more one ultimately allows government to do great harm.
But he’s right…
In this case, though in my view it sounds hypocritical, Davis is entirely correct about the EFF.
Bringing a party like the EFF (and there are a few) into the halls of power would be a monumental mistake on the part of the electorate and on the part of those responsible for negotiating coalitions. The EFF is not only ‘anti-constitutionalist’ in the sense that it is at odds with various fundamental provisions of the South African Constitution, but it is also anti-constitutionalist in the sense that its programme is fundamentally at odds with constitutionalism itself. The EFF does not conceive of government as an institution that should be limited: it must be able to do whatever the majority of voters (read: the political elite as embodied in the vanguard of the EFF) want it to do.
The parties on the radical left of South African politics, almost to a man, believe in large-scale dispossession of private property and elevating state power far above the interests of ordinary people. That the Constitution allows such organisations to access the levers of power is self-defeating and worth reconsidering.
The fact that the intellectual giants of South Africa’s left are raising alarm bells about how the 2024 election could shape out is a clear call on the reform-minded opposition to get its act together and, in concert, present a vision for a South Africa where people are allowed to generate wealth and keep that wealth, free of political victimisation.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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