Our Constitution, serving as one the foundational pillars of our legal tradition, has as its values, ‘Freedom’ and the ‘Rule of Law‘. These being different from actual rights to freedom in that said values serve as a backdrop upon which the entire text of the constitution is interpreted.
The Rule of Law as a concept has been perverted even among the western nations it finds its roots in. What it means now is the rule of legislators, not law, for there is a difference between the two, but that is a matter for another time. The Rule of Law, as Leoni rightly cites Dicey as outlining has at its core the ‘supremacy of the law’, and this is where most people stop their interrogation of this concept. We see this by the implied meaning of chastising this here group or individual either private or in the employ of the state, as violating the concept when they act contrary to a written piece of legislation. The implication is that whatever ‘law’ may exist at the time is justified and supreme and therefore ‘the rule of law’ means respecting said laws, using this logic, the repressive ‘laws’ of regimes like that of the NP and the Nazis, which were clearly edicts of force should be respected for the rule of law to prevail. This concept has degenerated into meaning ‘the rule of legislators’ or the rule of the mob, a perversion of a concept that transformed the world at a particular point in time.
Most people, even legal students themselves have this shallow and problematic conception of ‘the rule of law’ as simply meaning the supremacy of law above man and king. Yet upon deeper interrogation one finds that supremacy of the law implies other concepts, chief among them being the absence of arbitrary power by the state to punish individuals or to commit acts of aggression against their person or property.
The Law, which arises out of conflict and only out of conflict, is supreme, even above the authority of kings and governments. If we are trying to solve conflict by developing the law then it means implicitly we have acknowledged that the arbitrary use of aggression to achieve ends is not permissible, hence the implied concept in the rule of law which prohibits arbitrary use of power by the state to take one’s life, liberty or property.
Another implied concept in the rule of law would be equality. Equality of all before the law means that irrespective of noble title and bureaucratic position or the lack thereof, the law applies to all equally. So whether one is king or President, the rule of law implies not only that he/she cannot arbitrarily use his/her power against another individual but that this very same law also applies to him/her in as much as it does the ordinary citizen. The concepts implied herein by the rule of law do not apply to state and private citizen conflicts alone but they are general principles applicable to all, for the law is supreme after all.
This concept happens to be the value upon which our Judiciary should interpret the Constitution. In a society that adheres to the rule of law, like our constitutional fathers and mothers wanted ours to be, Expropriation Without Compensation (EWC) is the height of illegality and injustice, it violates the foundation upon which our legal system rests which is ‘The Rule of Law’.
EWC is the violation of the implication that all are governed by law and as such, the arbitrary aggression towards person or property by the state or any other institution that centralizes power through the monopoly on the use of violence, illegal, in the purest sense of the word. Expropriating one’s property without any form of recompense is the definition of illegality as it would represent a departure from ‘The Rule of Law’ to the ‘Rule of the whimsy of the populace and their ”thought leaders”. Having a Constitutional Democracy founded upon said principle of the Rule of Law means the implementation of EWC, even if it means amending section 25, would be unconstitutional, unless section 1, the values upon which our nation were founded are also repealed, thus signalling a departure from a Constitutional Democracy to another 3rd world Banana Republic governed by the whims of the ruling elite.
Now the jurisprudence scholars among you may as why such a Natural Law interpretation of the Rule of Law as a concept, well that is simply because the ‘Rule of Law’ as a concept is a Natural Law phenomenon. Seeing as it has its Genesis in religious scholars like the Scholastics and given the entanglement of Church and state prior to the enlightenment and the separation, thanks to Liberalism in large part, did not see a revolution in legal theory at least but rather saw ideals which find their roots all in the way back to Aristotle, find more elucidation. The arguments presented by the Church to argue that the King himself is subject to the ‘divine law’ are the roots for the principle of the rule of law. For non-Christians, as Grotius would say, the conclusions drawn by the Natural law theorists could be arrived at even if one were to do the unthinkable and deny the existence of God.
That brings me to another reason, a subject for a later piece given its precarious and demanding nature, that is, the legal tradition of South Africa happens to be one that is founded on Natural Law. Our Common Law, which is influenced in large part by Roman Dutch Law, a school of thought that has among its ranks avid Natural law theorists like Hugo Grotius. Roman Dutch Law is a ‘school of legal thought’ that is of the Natural law Branch, making the roots of our judicial system natural law, meaning our legal context should be interpreted upon this backdrop and understanding of the law. The South African judicial system and even the academic fraternity has ignored the natural law roots of our legal system, even when our Constitution has a natural law concept such as the rule of law as one of its founding values.
I am reminded of Bastiat’s ‘The Law’, he has a passage where he decries the difference between legislation and the law, with the latter usually devolving to plunder if not being it by mere existence. The Law, as is understood by the Natural Law rationalists is preventing injustice from reigning, it is negative in nature seeing as it only arises out of conflict. Justice is the protection of individual property rights which makes possible capital accumulation by the individual and creates general prosperity. EWC is an edict that violates the concept of the rule of law, making it not law but rather the facilitation of plunder, it does not deserve the title of law, at least if Bastiat’s reasoning. For the non-Libertarian among you, the unconstitutionality of such an action, even if s25 is to be amended, an amendment that gives the power to be aggressive against the property of individuals by the state would be antithetical to the values of the Rule of Law and Freedom, values which happen to underpin our constitutional democracy. The third reason is the aforementioned one, the rule of law as a concept stems from Natural Law as was explained thus requiring a natural law interpretation of such a concept by the courts, and the Rule of Law acts as the standard upon which our society must constantly measure up, it being one of the foundational values of our constitution, thus making it central to understanding our legal environment in South Africa, especially given our Roman Dutch Natural law roots.
The conversation should not be about whether the state should expropriate or not, that will signal a departure from private property rights, a departure from the rule of law and thus a departure from what makes us a civilised society, one that is founded on freedom and the rule of law, since EWC will be the violation of such concepts. The conversation should rather be whether the ownership titles held in the contemporary are valid, that is, whether the owner of a certain property is the ‘rightful’ owner or not. Who owns what, this is the foundation of law, where there is conflict between two parties and the creation of norms to regulate said conflict and future conflicts, that is where the law finds operation therefore it is the responsibility of the judiciary to handle ownership contestations, on an individual basis, subject to the normal rules of the judiciary of course, that is the land reform I am highly in favour of. The determination of whether property is justly owned through homesteading or transfer from contract or whether it is unjustly owned, acquired using aggression that is, stolen, transferred through contract but was acquired through aggression like land bought from the state but belongs to some indigenous tribe which was forcibly removed due to the state’s racist past laws and its monopoly on violence. Land reform should rather be approached from an individualistic perspective, handled as the legal issue it is and be left to the judiciary, those who want to contest the validity of a certain property’s ownership title, then approaching the courts is the route to take. Property rights are central to human survival; therefore, their contestation and invalidation should be subject to the highest form of scrutiny. Instead of legislation or amending the constitution as a solution, having specialised courts for land reform or just deferring to the judiciary on matters of law like determining the owner of a contested piece of property.
EWC is a violation of the principle of the rule of law. EWC is thus inherently unconstitutional seeing as it violates one of the values of the constitution, which inform the interpretation of the entire text, so an edict that posits that the state can take people’s property without consent nor recompense is the height of unconstitutionality. An amendment to the constitution making EWC possible by eroding property rights would then signal a departure from the Rule of Law to the rule of the whims of politicians. South Africa has a strenuous past with ‘rule by the whim of politicians’ through the parliamentary supremacy of the previous NP administration, we know the undesirable social consequences of abandoning the rule of law. Instead of learning from our history and striving for a society governed by the Rule of Law as our constitution has established, we instead draw one lesson alone from said history, that we never learn from it as our government seems hellbent on taking us back to the tumultuous times of Rule by the whims of politicians in Cape Town.