Freedom By Any Other Name? A Comparative Note on Losing Battles While Winning Wars

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Citation: 2008 Acta Juridica 91
• Pages: 91-111
• Date: 15 August 2019
• Author: Frank I Michelman

Freedom By Any Other Name?

A Comparative Note on Losing Battles

While Winning Wars

FRANK I MICHELMAN*

Harvard University

[T]hose who have ever valued liberty for its own sake believed that to be free

to choose, and not to be chosen for, is an inalienable ingredient in what makes

human beings human.

1

I INTRODUCTION: ASEPARATERIGHT TO FREEDOM?

Might it ever be in order for a court to recognise a constitutional right

not expressly named by the Constitution?

2

What about a sweeping

guarantee, against the state, of a ‘residual freedom’ right?

3

Early in the

game, while the play of South African constitutional jurisprudence was

still wide open, Justice Laurie Ackermann made his move. He urged, in

the strongest terms, that the Bill of Rights – specif‌ically, its clause on

‘freedom and security of the person’ – be read to contain such a

guarantee. ‘I would, at this stage,’ wroteAckermann J in Ferreira v Levin,

‘def‌ine [that constitutional right to include] the right of individuals not to

have ‘‘obstacles to possible choices and activities’’ placed in their way by

. . . the state’.

4

In Ferreira, the Constitutional Court rejected this bid to

locate a residual freedom right in s 11(1) of the interim Constitution.

5

That rejection is now taken as settled law, including by the only two

justices still on the Court who showed signs of siding with Ackermann J

in Ferreira.

6

* Robert Walmsley University Professor,Harvard University. Thanks to Stu Woolman for

trenchant comments on earlier drafts.

1

I Berlin ‘Introduction’ in Four Essays on Liberty (1969) at lx, quoted in Ferreirav Levin NO

and Others; Vryenhoekand Others v Powell NO and Others 1996 (1) SA 621 (CC) at 1013–14 para

49 (judgment of Ackermann J).

2

See S v Jordan 2002 (6) SA 642 (CC) para 49 (judgment of O’Regan and Sachs JJ

(doubting whether it can ever be ‘appropriate to base our constitutional analysis on a right not

expressly included within the Constitution’).

3

Ferreira (n 1) at 1019–20 para 57 (judgment ofAckermann J).

4

Ibid at 1018–19 para 54 (judgment of Ackermann J, quoting from Berlin (n 1) at xxxix).

5

‘Every person shall have the right to freedom and security of the person, which shall

include the right not to be detained without trial.’

6

See S v Jordan (n 2) para 75 (judgment of O’Regan and Sachs JJ). Conceivably, the door

remains open for a different result under s 12(1)(a) of the f‌inal Constitution (Constitution of

the Republic of South Africa, 1996). Unlike s 11(1) of the interim Constitution (Constitution

of the Republic of South Africa Act 200 of 1993), f‌inal Constitution s12(1)(a) specif‌ically

def‌ines the right to ‘freedom and security of the person’to include the right ‘not to be deprived

of freedom arbitrarily or without just cause’. It may also be recalled – see infra (n 50) – that the

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2008 Acta Juridica 91

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Accepting that Ackermann J did in fact ‘lose the battle’over freedom in

Ferreira, Bishop and Woolman suggest that he nevertheless has gone on to

‘win the war’ over ‘the value at the core of our current jurisprudence:

dignity’.

7

It certainly is true, as Woolman beautifully shows,

8

that the

Constitutional Court has effectively developed a freedom-serving gloss

on dignity – call it, as Woolman does, dignity as self-actualisation.

9

But

still, taking Justice Ackermann at his word in Ferreira (signally including

many words from Isaiah Berlin), it must be said that dignity, for him, is

one value (or congeries of values) and freedom another. ‘Everything’, as

Berlin liked to say, ‘is what it is and not another thing’

10

– a teaching

strongly echoed by Ackermann J in Ferreira.

11

So a question remains as to

how Ackermann J’s cause has fared on the terrain, not of dignity, but of

freedom.

In Ferreira, Laurie Ackermann, the constitutional jurist, joined up with

Isaiah Berlin, the philosopher-historian of ideas, as an apostle of freedom

(‘liberty’, in Berlin’s usage) in what Berlin regarded as its primary,

‘negative’ sense – ‘the area within which the subject . . . is or should be

left to do or be what he is able to do or be, without interference by other

persons’.

12

With the philosopher’s wind at his back, Ackermann as jurist

called for recognition in South Africa’s nascent constitutional jurispru-

dence of just plain freedom as a value in its own right. Not, of course, as the

sole or master value within the South African constitutional order of

values.

13

Rather, as one value alongside others that would doubtless

sometimes crowd or limit it – but still a distinct value, not to be conf‌lated

or confused (for this, after all, was Berlin’s message above all others) with

tight construction given by Chaskalson P to interim Constitution s 11(1) was prompted, in

part, by a wrinkle in the interim Constitution’s limitation clause that has not carried over to the

f‌inal Constitution. One might try to argue, on one or both of those grounds, that Ferreira does

not control any decision regarding a possible residual freedom right in f‌inal Constitution

s 12(1). No suggestion to that effect has appeared to date in the decisions of the Constitutional

Court, so far as I am aware.

7

M Bishop & S Woolman ‘Freedom and security of the person’in S Woolman et al (eds)

Constitutional Law of South Africa 2 ed (Original Service 2006) Ch 40 at 40:15.

8

See S Woolman‘Dignity’ in Woolman et al (n 7) Ch 36 at 36:1.

9

Ibid at 36:11n4, 36:12.

10

See I Berlin ‘Two concepts of liberty’in Berlin (n 1) at 125; M Ignatieff ‘Isaiah Berlin on

political judgement: theory versus practice’ The Isaiah Berlin Lecture, Wolfson College,

Oxford, 24 May 2007, available at www.michaelignatieff.ca/about/speech/2007_Berlin_On_

Political_Judgement.aspx.

11

See Ferreira (n 1) at 1016–18 paras 52–53.

12

Berlin (n 9) at 121, quoted by Ackermann J in Ferreira (n 1) at 1016–17 para 52 (equating

the interim Constitution’s term ‘freedom’with negative liberty thus def‌ined).

13

See Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 94 (judgment of Ackermann J)

(commending to South African constitutional jurisprudence the German Federal Constitu-

tional Court’s proposition that the rights-naming clauses of the German Basic Law not only

establish a list of subjective fundamental rights but also give expression to an objective ‘order of

values’ or ‘value system’); Carmichele v Minister of Safety and Security (Centre for Applied Legal

Studies Intervening) 2001 (4) SA 938 (CC) para 54 (judgment of Ackermann and Goldstone JJ)

92 DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER

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