Dennis Davis
My first serious political engagement was as an 18-year-old, canvassing for Colin Wells Eglin in his attempt to become MP for Sea Point in 1970. The figure 231 by which he lost is emblazoned on my memory. Like a number of my generation I moved leftward thereafter but the experience in 1970 was a most significant personal one.
For the purpose of this lecture in honour of Colin, his distinguished career is worth a brief recapitulation.
Colin Eglin entered politics as a United Party MP for Pinelands in 1958, at the age of 34. He left the hopelessly compromised UP in 1959 to co-found the Progressive Party, losing his seat in the process at the 1961 election. By 1971 he was its leader, to be replaced in 1979 by Van Zyl Slabbert, whom he had initially encouraged to join the party. From 1986 to 1988 he again assumed the leadership after Slabbert quit Parliament. When Zac de Beer replaced him in 1988, he continued as an MP until 2004.
In distilled summary, his career begun in a party inhabited by a few good people and many racists and ended in a democratically elected Parliament operating under a constitution that bore his influence and in the production of which he played a far more significant role than many who now claim international accolades. His politics may have been pragmatic owing to the context but his principles were always liberal.
In 2011 Eglin, then aged 85, delivered a lecture in honour of Barry Streek, a much beloved journalist. He addressed three concerns:
l The assault the government was making on the press;
l The poor, unemployed and the super-rich; and
l The unravelling of the tripartite alliance.
In accordance with his brand of liberal political philosophy, Eglin was concerned with assaults on the values of accountability, responsiveness and openness of government, the growing inequality that existed in the prevailing economic framework “in the fields of wealth ownership, power, knowledge, skills, opportunities and access”, and the consequent economic transformation which should redress the widening gap between rich and poor and the imperative for civil society to take ownership of our governance.
That he chose so late in his life to again focus on these three themes permits us to engage in an interrogation of his brand of liberalism and its application for contemporary South Africa.
In this engagement I am mindful of an essay penned by the great radical historian Eric Hobsbawm who, in 2007, wrote that none of the major problems facing humanity in the 21st century can be solved by principles that dominate the developed countries of the world; that is unlimited economic growth, technological progress, the ideal of individual autonomy, freedom of choice, electoral democracy.
Hobsbawm poses a formidable challenge to any engagement with liberalism of whatever stripe. His critique requires a careful response. It is vastly different to those who dismiss liberalism on a nebulous populist basis unhinged from any critical engagement with the central values which Eglin espoused – accountability of government, the value of the rule of law, an unrelenting concern with inequality, and an active and free citizenry.
Liberalism has emerged at root from two traditions: utilitarian and Kantian. Briefly stated, the first, following John Stuart Mill, justifies liberal principles in the name of maximising the general welfare of society. The state should not impose on its citizens a preferred way of life, even for their own good, because doing so will reduce the sum of human happiness, at least in the long run. It is preferable that people choose for themselves, even if, on occasion, they get it wrong.
“The only freedom which deserves the name,” writes Mill in On Liberty, “is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” He added that his argument did not depend on any notion of abstract right, “only on the principle of the greatest good for the greatest number… I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interest of man as a progressive being.”
But, say those who emerge from the other dominant tradition derived from Kant, most notably in the contemporary context from John Rawls, “each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override… The rights secured by justice are not subject to political bargaining or to the calculus of social interests”.
We are impelled, if we adhere to this tradition, to find an account of rights that is not anchored solely in a general welfare justification. What makes this analysis more complex is that this tradition is not to be found in only one idea of rights. We have very different liberal visions – egalitarians, market liberals and even libertarians.
We could for good measure add to this mix communitarians so that the divide would then look as follows: Libertarian liberals defend the private economy uncritically while egalitarian liberals defend the welfare state. Communitarians worry about the concentration of power in both the corporate economy and the bureaucratic state, and the erosion of those intermediate forms of community that have at times sustained a more vital public life.
Rawls famously sought to reconcile these differences with his two principles of justice which, in essence, were:
l Equal basic liberties for all; and
l The state should address only those social and economic inequalities, the allocation of which resources will benefit the least-advantaged members of society of society (the difference principle).
But this difference principle which is concerned with modest redistribution is not without problems. Harvard philosopher Michael Sandel sets out the core difficulty as follows:
“The difference principle, like utilitarianism, is a principle of sharing. As such, it must presuppose some prior moral tie among those whose assets it would deploy and whose efforts it would enlist in a common endeavour. Otherwise, it is simply a formula for using some as means to others’ ends, a formula this liberalism is committed to reject.”
Here lies the problem with which I suspect Colin was concerned and which is depressingly even more apparent in current South Africa.
We fashioned a constitution that took Rawls seriously. While it sought to ground our vision on principles that eschewed an uncritical adoption of a society in which a majority can impose its vision on the rest of society, it embraced default rules that recognised and addressed the difference principle; hence provisions were made for a range of basic social and economic rights to housing, water, education, medical care.
As Colin articulated in his Barry Streek lecture, a failure to address rising inequality subverts this constitutional vision. The existing Gini coefficient and the obvious implications of Thomas Picketty’s recent book notwithstanding, much of the dominant economic discourse which appears in the mainstream media promotes the idea that economic growth and absolute autonomy alone suffices to construct a new society. On the other hand, there are those who understate the critical importance of basic civil liberties and the rule of law.
Whatever label one employs, the constitution promotes a political vision that redresses inequality, guarantees liberty and conceives of governance based upon accountable, transparent principles buttressed by a citizenry active in the development of some, albeit tentative, sense of community.
In this vision, rights are not employed to subvert the common good, by their employment to deny those most in need, whether by refusing access to rudimentary housing by way of evictions, the subversion of social and economic programmes designed to address historical obligations which takes place when we fetishise the market as a sole solution, when corruption reduces the scope for a widespread social wage or by way of political neglect or the denial of voice to those without power.
To vindicate the society prefigured in the constitution, we need this concept of South African community, for without it, we become vulnerable to a mass politics of totalitarian solutions at worst, or an increasing recourse, at best, to the courts, the legitimacy of which will not carry the weight of political expectation over the long haul.
Courts without an active deliberative politics cannot alone bear the demands of democracy.
It is regrettable that these concerns which Eglin would have described as liberal receive so poor a press thanks to those more interested in slogans than political substance. They are lodestars for progress to the democracy that our constitution pre-figures.
In 1989 Vaclav Havel was asked by a journalist what he had learnt to date. He replied, “when a person tries to act in accordance with his conscience, when he tries to speak the truth, when he tries to behave like a citizen even in conditions where citizenship is degraded, it might not necessarily lead anywhere but it might”.
It seems to me that this is how politics should be conducted. It is certainly the way the man we honour tonight acted throughout his long career.
l Judge Davis was appointed a Judge of the High Court in 1998 and as President of the Competition Appeal Court in 2000. This is his inaugural Annual Colin Eglin Memorial Lecture at the opening of the Colin Eglin Library at the Cape Town Club.