Listening to the will of the people

The preamble to what is surely the most important document in South Africa, Act 108 of 1996, lays "the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law." The Constitution itself goes on to constrain "our freely elected representatives" in various ways without ever specifying how to establish the will of the people, or how often. This leaves it open to many to argue that those elected representatives have a free hand and, for example, need not offer "we the people" a binding referendum on whether taxation should be voluntary, or capital punishment should be restored, or various other issues.

Democracy comes in many forms
Certainly no state is run purely by the will of the people, but democracy by majority decision-making comes in many forms, some of which are more responsive to citizens' wishes than others. At one extreme, and outside the political ambit, is any voluntary club, which makes no rules without the consensual agreement of every member, a requirement that severely limits a club committee's ambitions while maintaining its legitimacy. At the other extreme is a state whose tyrannical leader was originally elected by a genuinely democratic process - as was Hitler - but no longer governs on their behalf or in their interests.

Government by consensus
Limited government, representative or 'directly-democratic', or whatever, should aspire as far as possible to the consensus model. South Africa belongs 'to all who live in it', our Constitution's preamble also says, with 'every citizen equally protected by law'. Protected from what? Well, amongst other things, from invasive government deploying majority decision-making - hence our Bill of Rights. Or at least those rights in it which impose no corresponding individual obligations other than natural reciprocity and mutual respect. These, in citizenship clause 3, are the only 'duties and responsibilities of citizenship' which we can safely assume are acceptable to every rational citizen.

Fundamental Rights
No politician, journalist or ordinary citizen can truly claim to speak for "we the people", but most of us can probably agree on a few basics. Each individual citizen matters more than the state. He or she should not be harmed and (reciprocally) should harm nobody. He or she has (although not derived from the government) fundamental rights to life, liberty, property, the pursuit of happiness, and so on. Philosopher Anthony Flew summarised "the traditional lawyers” definition, that the just person is one who 'lives honourably, injures nobody, and allows to each their own'; their own being their several and often very different moral and sometimes criminal deserts, and their entitlements as owners of various amounts and sorts of property."

What is the legitimate role of government?
Obviously in most countries the government does more than assist us with our own self-defence for a small, agreed fee. Almost everywhere in the world our property is taxed (generally without our individual consent) and the proceeds are wasted or used (often without our individual consent) for purposes decided by majorities of majority-elected representatives. The "will of the people" argument is simply that some taxes and some purposes are clearly less justified than others. One can think of examples ranging from relatively acceptable to increasingly unacceptable to "we the people", such as:

a tax-financed police force which protects us all (even criminals when they are at home) fairly effectively from crimes of violence

an anti-smoking law which usurps the property-right of owners of private firms and restaurants to admit and regulate their visitors as they see fit

a modest temporary transfer of tax monies to society's most deserving poor, even though it makes everyone else a little poorer

a permanent monopoly-protection of, say, Telkom, whose 'undeveloped, uncompetitive telecommunications infrastructure' is not servicing us well at present (according to a recent Trade & Industry Department discussion document on industrial strategy)

a permanent affirmative-discriminatory empowerment of one ethnic, gender or other group at the expense of other citizens

Ask the people
There is no mystery about "the will of the people" - we need only ask around or run an opinion poll or referendum. The real problem emanates from clever folk who are sure they know best what is good for us and ignore obvious general sentiment for lower taxes, or a smaller defence force, or the return of the death penalty, or leaving private restaurants and companies to decide their own smoking policies.

Must South Africa’s destitute continue to suffer?
In the short term, unfortunately, such folk may just succeed in constructing a pervasive nanny-state with property and other rights subordinated in pursuit of "social justice" through majoritarian rule, and consequently with all the economic stagnation of Europe in the seventies. In the longer term, fortunately, the clever folk cannot prevail without the support of "we the people" who want to prosper through global capitalism like other countries do. But what a pity if South Africa's destitute millions have to wait still longer while the "progressives" hold sway.

Source: Dr Jim Harris is a freelance researcher and journalist. He maintains the Regulation Updates that appear under Publications on this website. This article 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 Free Market Foundation.

FMF Feature Article/ 24 July 2001 - Policy Bulletin/ 7 July 2009