A FREE SOCIETY

A FREE SOCIETY
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A FREE SOCIETY
Leon Louw and Frances Kendall
During my lifetime ... I have fought against white domination, and I have fought against block domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be it is an ideal for which I am prepared to die.
Nelson Mandela 1964
An ideal society would be one in which there was freedom, peace and prosperity for all. No society in the world is ideal, but some political and economic systems create a higher degree of freedom and prosperity than others.
Any solution for South Africa should be based on the political, economic and legal systems which are likely to achieve the best conditions for the most people. This chapter will consider what they are; the subsequent chapters will examine how they can be applied to our unique situation.
What is a free society?
In the simplest terms, a free society is one in which all individuals are free to do as they choose without fear of coercion or the threat of coercion by others. No one may impose their will by force on another.
This principle has been the basis of common law for centuries and, in recent years, there has been a revival of interest in its application to political, social and economic analysis.
Perhaps the easiest way to acquire a clear understanding of what a free society entails is to contrast it with its opposite - a centrally planned or regulated society. In political terms, a free society is characterised by limited government, decentralisation, devolution of power to local levels, individualism and personal responsibility. Individuals are supreme: the purpose of government is to serve people. In an unfree society, the state is supreme and people serve the state. The political characteristics of an unfree society are powerful central government, collectivism, paternalism, coercion and social engineering.
A free society has a free economy, governed,only by market forces. It is characterised by individual planning, entrepreneurial activity, cornpetition and spontaneity. There is rapid wealth creation, and living standards
are,high. In an unfree society, the economy is centrally planned and people with the ability and resources are compelled by the state to provide the needs of others. Advocates of this type of imposed order generally though not necessarily prefer government ownership of the means of production and distribution, and government control of human and non-human resources. Alternatively, they may favour a 'welfare state' in which private enterprise's subject to substantial taxation and other forms of wealth redistribution.
In a free society, social relationships are voluntary and result from free choice and consent. In an unfree society, relationships between people are regulated.
A free society is based on the rule of law and common law, an unfree society on the rule of men and discretionary law.
Economic, social, legal and political freedom are completely interdependent. For instance, voluntary exchange between individuals cannot take place unless there is private ownership of property. Freedom of speech is meaningless if the media are not permitted to publish and disseminate ideas which criticise the existing order. There can be no freedom of assembly if all public meeting places are state-owned.
Fig 3 provides a graphic illustration of the difference between free and unfree societies. The further one moves towards the top or apex of the triangle, the more free the society. The base line represents totalitarianism and is divided into those forms of government generally thought of as 'left' and 'right'.
The myth of the'golden mean', 'derde weg'
There is no 'golden mean' between a free and an unfree society because the essential concepts which characterise them are opposites; they are mutually incompatible and irreconcilable. The belief that a middle position is possible is the consequence of indecision or a failure to grasp the concepts entailed.
If it is right that government be limited, it cannot at the same time be
right for it to be unlimited. The debate can only be one of degree. For those who believe that the state should serve the individual, there might be discussion as to how limited central government should be, or to what extent power should be devolved. Those who believe the individual should serve the state might debate what, if anything, should be left in private hands.
There are many people in this country who call for a 'middle path'. South Africa should not pursue idealistic extremes, we are told. What we need is the best of both worlds - a realistic, balanced middle path. The rhetorical cliches are many: we need compromise and consensus; interventions that 'improve' or 'preserve' the free market; a caring alternative, to capitalism; a just distribution of wealth; and so on.
Those who find it difficult to fault such lofty sentiments should observe what is really being said.
First, and most important, there is no one third way. There are as many third ways as there are proponents of this mythical 'alternative'. What we have now is one of them. Are these people then saying we need no change? Or are they saying we must shift to some alternative unstable, arbitrary and random mixture of contradictory socio-economic policies - policies based on no guiding principle or paradigm? In truth, each proponent is saying something different, and it is difficult to find any consensus among them.
By dramatic contrast, there is a general consensus at either end, where protagonists have a coherent, fairly consistent and intelligible set of principles, theories and beliefs upon which they base their positions and against which they judge policies. In this sense, both advocates of a free and an unfree society have identifiable positions, whereas those in between
have no positi6n, or more accurately, have a meaningless multiplicity of positions.
The free society paradigm is neither unrealistic nor extreme. On the contrary, it takes full account of South African realities and is the only system which offers massive and rapid wealth creation, a just distribution of wealth, the kind of 'caring' that works, a real prospect of depollticising life and reducing inter-group conflict, personal freedom for every individual, and neither imposed segregation nor imposed integration.
The three political prerequisites for a free society are democracy, limited government and decentralisation of government.
Democracy
The word 'democracy' is derived from the Greek words for people (demos) and power (kratos).
The democratic ideal is to vest power in the governed rather than in those who govern them. But however strongly we espouse this ideal, we must recognise the failure of the electoral process to sustain it.
As long as government is unlimited, universal suffrage is no guarantee that people will get what they want. Neither are voting rights any guarantee of personal freedom. Looking around the world, we find that unlimited democracy has led to communism in Chile, national socialism (Nazism) in Germany and welfare statism in many parts of Europe.
In almost every country, the majority of people oppose many of the policies which their elected representatives implement. Numerous studies have shown that most people are against most interventions.
The reason why these interventions come about nonetheless is known as Olson's Law, in honour of the economist Mancur Olson who observed that small powerful groups invariably manipulate government in order to serve their vested interests (see Chapter 4).
Clearly, then, democracy per se is not an adequate guarantee of prosperity or freedom. The results of various democratic processes are not consistent with each other or the democratic ideal. A truly free society is one in which the possibility of a democratic accession to power of any form of totalitarian government is precluded; in other words, a limited government democracy, sometimes called minarchy or libertarianism. This, we argue, is the only feasible alternative for South Africa.
One of the first leaders to advocate such a system, Thomas Jefferson, expressed himself thus: 'Bear in mind this sacred principle that, though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.'
Principles of good government
Limited government democracy (minarchy) is based above all on two principles, which are essentially two sides of the same coin; the first concerns entrenched constitutional prescriptions of what government may and may not do, and the second the constitutional protection of individual rights. The most popular view of minarchy is that the government should be precluded through constitutional safeguards from revoking or infringing upon the 'natural rights' of the people.
Limitations on government may be general or specific. Specific limitations have been attempted in various constitutions, the most famous of which is the United States Constitution. In South Africa's own history, the constitutions of nineteenth century Voortrekker republics also had entrenched limitations. In these cases, the functions which government might legitimately undertake, such as national defence, maintenance of law and order, contagious disease control and the judiciary, were prescribed, as well as those which it may not undertake, such as control of religion, press censorship and the invasion of property rights.
Government by law or discretion
Some scholars argue that in order for limitations to be effective, a constitution must declare unambiguously that government has no powers other than those specifically conferred upon it by the constitution. As an adjunct or alternative to such a declaration, the constitution may also incorporate a 'bill of rights' establishing the inviolable rights of individuals. In a free society, there would be a general rule that any government action which would, if performed by an individual, constitute an unlawful act, should likewise be unlawful, excepting only those peacekeeping actions undertaken in terms of the powers specifically conferred on government by the constitution. That which is morally or legally wrong, argue proponents of this general rule, cannot be politically right.
Perhaps the biggest single problem in historical attempts to limit government has been, and remains, the enormous temptation to permit exceptional' curtailments of individual rights, and to leave loopholes in the constraints on government 'in case of unforeseen circumstances'.
Once government is granted discretionary powers, there is always the possibility -even the likelihood - that they will be abused, as abundant precedent demonstrates. For one cannot safely assume, as proponents of discretionary government have done, that rulers will be competent and just. Proper constitutional government does not rely on the quality of individual rulers, but on the quality of the laws under which they rule. Thus the basic tenet of limited minarchical government is that government may make general rules of just conduct, equally applicable to all and not permitting of administrative discrimination.
Power Struggle
Apart from the manifest relevance of these principles to any society, they are especially pertinent to South Africa. If government were adequately limited, it would largely depoliticise life and defuse the struggle for power. Axiomatically, the greater the power of government, the greater will be the struggle for power.
The necessity for constitutional entrenchment
The relative failure of historical attempts at limited government can be attributed to (a) the overthrowing of governments or suspension of constitutions; (B) constitutional amendment; © ambiguous and equivocal drafting of constitutions; and (d) altered circumstances, not envisaged at the time of drafting. Whilst no method of guaranteeing the preservation of good government exists, one can at least provide some safeguards by means of unambiguous constitutional entrenchment. For example, it could be required that the entrenched provisions (defining governmental limitations) may be amended only by a 90% majority in a referendum.
Specific issues
Given the principle of minarchy, the precise degree of limitation still needs to be determined.
Within the limits of a clear conceptual framework the 'legitimate' functions of government might or might not (according to various limited government advocates) be extended beyond policing, judiciary and national defence to include, for example, contagious disease or pestilence control, basic welfare, elementary education, infrastructure or immigration control.
The following are some of the functions and limitations suggested in the standard literature, but not necessarily to be adopted in the South African model:
1 . The law-making body of government should not be permitted to perform administrative functions. Examples of administrative functions are making rules and regulations for the implementation of laws, and determining administrative procedures. In this context, remember that laws should not give administrators or rule-makers discretionary powers.
2. Government should not be empowered to run, as legislative monopolies, those functions (especially of a social or entrepreneurial nature) which it is permitted to perform. It should not be permitted to create or grant private monopolies or monopoly privileges or protection from competition.
3. Government functions should preferably be required by the constitution to be put out to tender in order (a) to avoid employment patronage, corruption and bureaucracy, and (B) to give all people equal access at law to the performance of such functions.
4. Common law rights or classical natural rights should be entrenched (but not codified) with the proviso that the judiciary should be restored to comprising courts not only of law, but also of justice per se. (Under present South African law, the operation of justice as a criterion in the judicial process has been abrogated and the judiciary is confined to applying law and legislation irrespective of considerations of justice.)
5. If welfare is to be an authorised government function, it should be clearly defined and circumscribed and the principle should be that
government cannot provide welfare directly by, for instance, supplying or running hospitals, orphanages, old-age homes and so on, but may only make payments to welfare recipients who, in turn, will acquire welfare services in a competitive market place.
6. Certain categories of laws proposed by central government should be subject to national referenda and introduced only if they receive the support of the majority. The policy of making decisions by referendum, combined with limited government, provides the best guarantee yet devised that laws will coincide with genuine majority preference and the democratic ideal.
Decentralisation of government
In pursuit of a free society, government functions and powers should be not only limited but also decentralised. The theoretical extreme of decentralised government is to decentralise everything as far as possible, ultimately to the individual; in other words, most powers and functions vest in the people themselves and only those which cannot - or for overwhelming reasons should not - be vested in individuals, may be delegated to highly decentralised government institutions.
Central government should be limited to areas of common concern such as national defence, national finance, foreign relations, trunk roads and contagious disease control. All other functions should be undertaken by regional or local government.
Decentralisation allows for the diversity which characterises a free society. Instead of one law imposed upon all, different regions have their own laws which represent special needs and values. For example, in the USA, laws regarding liquor, gambling, education, licensing, taxation and so on vary from state to state.
Small governments are more flexible and responsive to change than big ones. Changing the course of a mammoth oil tanker takes hours, a small boat minutes, a canoe seconds and a rubber duck in the bath split seconds.
It is far easier to influence a small government, such as a local village council, than a provincial or homeland government, which is, in turn, easier to change than the South African government.
Few of the countries which put pressure on South Africa to become a unitary one-man-one-vote state have such a system themselves. South Africa currently has one of the most centralised government systems in the world. The only other countries which approach our degree of centralisation, such as the Scandinavian countries, are geographically small and have homogeneous populations.
Most democracies have a significant degree of decentralisation, and the more heterogeneous the society, the greater the need for decentralisation.
Conclusion
Throughout the world, countries which are characterised by a high degree of personal freedom, peace and prosperity are those in which the power of government has been effectively curtailed in some way.
However, the model which we propose for South Africa in the chapters which follow does not require that all South Africans share this view. It allows for minarchist and statist societies, and any of the mixed variations in between, to co-exist side by side, proving through practical demonstration which system fulfils the needs of most people.