Beyond the Brother: Radical Freedom
| Jurisdiction | South Africa |
| Author | AJ Barnard-Naudé |
| Pages | 273-297 |
| Date | 30 August 2019 |
| Published date | 30 August 2019 |
Beyond the Brother: Radical Freedom
A J BARNARD–NAUDÉ*
University of Cape Town
it is always a question of the body . . .
1
Deconstruction is the prophet of a new kingdom of ends.
2
I INTRODUCTION
In a 1954 essay attempting to understand (and thus to oppose)
totalitarianism as a then novel form of government, Hannah Arendt
writes as follows: ‘In order to fight totalitarianism, one need understand
only one thing: Totalitarianism is the most radical denial of freedom . ..
whoever cannot be mobilized when freedom is threatened will not be
mobilized at all.’
3
Given philosophy’s obsession with, but also inability to articulate, ‘the
nature and stakes of what we call ‘‘freedom’’’
4
today, Arendt’s statement
raises perhaps more questions than it offers answers, or opens up horizons
for action. For do we ever finally and properly know when freedom is
radically denied? Is there an ethical difference between the denial of
freedom and its radical denial? And does this epistemological inability/
instability to know when freedom is or is not (radically) denied, not
ultimately instil despondence and paralysis? I believe that this need not be
the case if one is prepared to see in Arendt’s terse statement the starting
points of a response and, therefore, a responsibility as well as perhaps most
importantly, a resistance. To approach and to affirm such a responsibility
and such a resistance it will be necessary to begin to come to terms with
what it means to posit specifically totalitarianism as the radical denial of
freedom. What are the nature and stakes of the freedom that totalitarian-
ism so radically denies? Does totalitarianism merely consist in the
* Senior Lecturer, Department of Private Law,University of Cape Town. The bulk of this
essay was written in the weeks following the sudden departure of my friend, confidant and
brother, Louis Janse van Rensburg Joubert on 20 July 2008.Without the support, patience and
generosity of friends during this difficult time, it would have been impossible both to conclude
this article and to continue my involvement as editor in this project. In recognition of the gift
that friendship always already is, I dedicate this article to the memory of my friendship with
Louis as well as to the following people: André Barnard-Naudé, Marelize Barnard, Jurné le
Roux, Karin van Marle, Danie Brand, Pierre de Vos, François Finlay, Drucilla Cornell and
Elizabeth Lotz – together they sign here more than I could ever do.
1
J L Nancy The Experience of Freedom translated by B McDonald, foreword by P Fenves
(1988) at 66.
2
J K A Smith Jacques Derrida Live Theory (2005) at 90.
3
H Arendt ‘On the nature of totalitarianism: an essay in understanding’in H Arendt Essays
in Understanding 1930–1954 edited by J Kohn (1994) at 328.
4
Nancy (n 1) at 1.
273
2008 Acta Juridica 273
© Juta and Company (Pty) Ltd
ideologically motivated encroachment by the state on those aspects of
citizens’ lives that are considered to be private? Does freedom then
consist, by virtue of the same logic, in radical governmental non-
intervention that would open up the lawful ability to choose amongst sets
upon sets of available alternatives? In other words, is Isaiah Berlin’s
version of individualist, negative freedom
5
not the best version of
freedom available for a post-totalitarian society such as the one envisaged
in South Africa?
In his decision in Ferreira v Levin NO,
6
Justice Ackermann – inspired by
Berlin – appears to favour the negative conception of freedom. Yet at the
same time Ackermann insists that ‘a broad and generous interpretation of
freedom does not deny or preclude the constitutionally valid, and indeed
essential, role of state intervention in the economic as well as the civil and
political spheres.’
7
In this contribution, I want to argue that, in the
context of freedom, the ‘broad and generous interpretation of freedom’
can and should take account of a radically different version of freedom – a
radical freedom – if we are to remain committed to the excision of the
totalitarian nightmare from the political (un)conscious of the South
African body politic.
I want to assert then that Arendt’s choice of formulation in the passage
I cited above leads to a different configuration of the (non-)relationship
between totalitarianism and freedom, quite simply because Arendt’s
version of freedom differs radically from the negative version of freedom
offered by Berlin and endorsed by Justice Ackermann.
8
In this contribu-
tion I also want to draw attention to the elaboration and extension of
Arendt and Heidegger’s thought on freedom in the work of Jean-Luc
Nancy.
But before elaborating on these versions of freedom – and attempting
to point out their significance for South Africa – I want to keep in sight
another particularity of South African democracy, namely (and it is on
this that everything turns here) that it is, and remains, as a particular kind of
democracy; one that does not simply mark the end of a totalitarian order,
but rather and specifically calls into being a post-totalitarian order as a
post-apartheid order.
9
The question of freedom – which is always already
5
I Berlin ‘Two concepts of liberty’in I Berlin Four Essays on Liberty (1969) at 121–22.
6
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA
621 (CC).
7
Ibid para 52.
8
See Ferreira (n 6) para 54.
9
See J van der Walt Law and Sacrifice (2005) at 3. For Van der Walt the cornerstone of a
post-apartheid theory of law is the horizontal application of fundamental rights embodied in
s 8(2) of the Constitution of the Republic of South Africa, 1996. This horizontal application of
fundamental rights, argues Van der Walt, ‘is bound to disrupt the classical liberal scheme of
South African law and jurisprudence . . .’.
274 DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER
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