Hard-won liberty needs persistent and resolute defence

Earlier this year, FMF director Temba Nolutshungu published an article entitled ‘Liberty is Indivisible’ in which he concluded that, ‘If some of us do not have liberty, none of us have liberty.’

This is a powerful statement that all South Africans should reflect upon. It is fearfully easy to fall into the trap of believing that curtailing the liberty of one group of people can advance the liberty of others. The error in such thinking is that group ‘A’, whose liberties are supposedly to be advanced, automatically give up some of their own liberty to government officials who are given the task of curtailing the liberties of group ‘B’. There is vast historical precedent to show that any attempt to curtail the legitimate liberties of one section of the population inexorably leads to the loss of liberty for everyone.

Last year at this time I suggested that South Africans should resolutely pursue liberty and that liberty will advance in South Africa only when the majority of our people understand its true nature and the inestimable benefits of living in a free and open society. What the country needs is a society not under the rule of man but under the rule of law, where the ownership rights of all one’s possessions (i.e. property rights) are sacrosanct.

Sadly, we seem not to have made any advance along these lines. On the contrary, liberty has been under even greater threat during the past year, frequently in the rhetoric of young members of the governing party. Fortunately, wiser members have prevailed and resisted urgings that the party adopt policies and institute actions antithetical to liberty. Regrettably though, liberty has not been defended for liberty’s sake. Unwise policies have been rejected largely for practical reasons, rather than because they would have diminished the liberty of the people.

Is it really necessary to talk about the defence of liberty; whether liberty can be eroded in such a manner that the average person is oblivious to the erosion and has no inkling of the probable consequences? These questions have been repeated throughout much of history and events have shown that where vigilance is not intense, liberty has been lost over and over in century after century. The lessons never seem to be learned.

In 1850 Frederic Bastiat, a French economist, statesman and author, described how the law, which is intended to protect ‘the person, liberty, or property of the individual or groups’ can be perverted to do the opposite of what is intended; that instead of protecting the rights of the individual it actually can be used to destroy their rights. ‘The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the liberty and property of others. It has converted plunder into right, in order to protect plunder. And it has converted lawful defence into a crime, in order to punish lawful defence.’ he said.

Our own Constitution is designed to protect citizens from the perversion of the law which Bastiat described 160 years ago. It speaks of, ‘Supremacy of the constitution and the rule of law’; ‘Everyone is equal before the law and has the right to equal protection and benefit of the law’; and ‘No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property’. In light of these protections provided in our Constitution, water and minerals should never have been capable of nationalisation, and government should never speak with confidence, as they do, of depriving citizens of their property without proper compensation. All citizens should protest when the law is perverted, not only those who are the direct victims of such perversion. Ultimately everyone will be a victim if the law is perverted; no person’s liberty or property is safe in such circumstances.

Democracy is all too easily changed from a mechanism intended to place decision-making in the hands of the people, into a mechanism to extract wealth from those who create and conserve it, for transfer to those who consume it or use it to purchase personal support. A constitution is all too easily transformed from a mechanism to protect the people from autocratic government into a barrier that governments constantly seek to undermine and erode. And as Bastiat so eloquently warned sixteen decades ago, the law is all too easily changed from a mechanism that protects the innocent to one that abuses them.

The purpose of the South African Constitution is therefore to limit government, not to facilitate it. It was born of the historic need to curtail the excesses of government of which our beloved country has had more than its fair quota. Now, after little more than 16 years of democracy, ruthless and persistent attempts are being made to undermine our Constitution, the latest being to re-introduce secrecy and furtive conduct into what our Constitution envisages as ‘an open society’, threatening to take us back to ill times not yet forgotten. In this regard one is reminded of the words of William Allen White who in 1924 wrote, ’You can have no wise laws nor free enforcement of wise laws unless there is free expression of the wisdom of the people – and, alas, their folly with it. But if there is freedom, folly will die of its own poison, and wisdom will survive.’

Every individual who wishes to continue to enjoy the benefits of an open, free society and to promote and preserve liberty for the benefit of our children and grandchildren, has an obligation to play an active part in promoting and defending it, simply by doing the right thing every moment of every every day. As Edmund Burke is said to have put it, ‘All that is necessary for the triumph of evil is that good men do nothing.’ South Africans who love their hard-won liberty ought now to stand and be counted.

Author: Dr Brian Benfield is the Chairman of the Free Market Foundation. This article, which is adapted from his address to the 3 August 2010 Annual General Meeting of the Foundation, may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.

FMF Feature Article/ 4 August 2010 and Policy Bulletin / 18 October 2011