Liberal Constitutionalism, Property Rights, and the Assault on Poverty

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 706-723
• Citation: (2011) 22 Stell LR 706
• Author: Frank I Michelman

706

LIBERAL CONSTITUTIONALISM, PROPERTY

RIGHTS, AND THE ASSAULT ON POVERTY

Frank I Michelman

BA LLB

Robert Walmsley University Professor, Harvard University;

Stellenbosch Institute for Advanced Study (STIAS), Wallenberg Research Centre at

Stellenbosch University (Fellow, May-June 2011)*

1 Introduction

Suppose we have three fa ctors in play: a national project of post-colonial

recovery fr om distributive injustice, prominently includ ing land reform;

express constitutional protection for property rights; and a Constitution whose

other main featu res bring it recognisably within the broa d historical tradition

of liberal constitutionalism. Have we got a practical contradiction on our

hand s?

To what extent, i f any, does or must the constitutional property clause (as

distinct from its companion-libe ral constitutional guarantees) particula rly

impede the social-tra nsformation project? Crucial ly, the answer is not

preordained but rather rests on how the clause is construed and applied by

whoever is to decide which actions of the st ate the clause does and does not

interdict .1 Suppose that is a body of cou rts. The next question, then, might

be about the extent, if any, to which we must expect that the Constitution’s

overall lib eral afliation will incline the court s toward deployments of that

clause that are especially t roublesome from the standpoint of reform.

The narrower claim of t his essay is th at the attr actions of liberal

constitutionalism do not come necessarily laden with a counter-reformative

property clause. I n what I would ca ll a proper liberal view, the ofce of a

constitutional prop erty clause is to signal recog nition of the connection

between a decent respect for proper ty and a decent respect for human dignity

and freedom; it is not, however, to provide defenses for pr operty rights beyond

what con stitutional protection s for fre edom, security, dignity, equalit y, and

legality would anyway provide.

It may, even so, be true that the conditions of dis tributive justice withi n a

national society will not always be achievable by means meeting the demands

of an up -and-running liberal constitutional order. The essay’s broader claim

is that the fault in such cases does not, however, lie in a liber al conception of

justice.

* My thanks go to ST IAS A fellowship t here provided t ime and wonderf ully support ive surround ings for

the prepar ation of this articl e

1 This point re ceives apt emp hasis from G S Alexander T he Global De bate Over C onstitutiona l Property

Rights (2006) 6, 9, 29, 57-59 Throughout t his essay, my nec essarily su mmary obse rvations in regard to

the curre nt state of the debate sh are much with Alexan der’s richly extended explo rations

(2011) 22 Stell LR 706

© Juta and Company (Pty) Ltd

1 1 A puzzle of transformative constitutionalism

Plain, de ep, and insup erable are the South Africa n Constitution’s2 liberal

genes. So insists Sanele Sibanda in h is highly compelling contribution to this

Colloqu ium,3 even as he both g rants and applauds the Constitution’s “post”-

liberal, tra nsformation-minded r eworkings of its liberal bir thright.4 With

Sibanda’s uncompromising placement of t he Constitution in liber al territory,

I could not more wholehearted ly agree. Indeed , I may go further down th at

road than Siband a does; for I mean to resist as fa r as possible any suggestion

of a divide or contradiction between the Constitution’s social-transformative

pretensions and its indwelling liberal identit y. To resist t he suggestion, I say,

but not enti rely to cr ush it. In the e nd, somethi ng beyond the trivial will

remain of that concern. Whatever that is, though, it wi ll not be an out and

out indictment of a liberal constitutionalist transpla nt to African post-colonial

soil.

Sibanda’s own powerful work stops somewhere short of th at, at least for

now. But Sibanda does deeply doubt t he rece ptiveness – much less the positive

conduciveness – of any possible pract ice of liberal constit utionalism, let it be

of the most left-leaning conceivable var iety, to a truly redemptive project of

social transformation in South Africa now or elsewhere on this continent. And

yet, as I read Sibanda, it is not t he l iberal-constitutionalist ideal that he rejects,

but rather the notion that a liberal-constitutionalist establishme nt here and now

will permit – let alone can inspire and provoke – a consolidation of the political

will and the political means required to move the countr y from its here and now

to its envisioned, socially transformed fut ure condition. However humanely

conceived a nd i ntended, a liberal-const itutionalist tra nsformative project in

the South African here and now is bound, Sibanda believes, to meet with fatal

blockage by a dominant dr ive in liberal constitutionalism to limit the state as

opposed to empowering and obligating it. “Transformative constitutionalism”

becomes, to that extent, a contradiction in terms, an oxymoron ; perhaps not

necessarily so on a n abstract theoretical plane (where limitation m ight give

more ground to obligation), but still su rely so within the currently prevailing

and reasonably foreseeable politica l-cultural context here, coddled as that

context is by a more classical-liberal unders tanding.

Sibanda’s re servations start out from what we may all agree are  xed

points of subst ance and procedure in liberal constitut ionalism. Proce durally,

constitutionalism means the channeling of raw political desire through

institutional lters for deliberation, account ability, and control: representative

government, divided powers, i nstitutional checks and balances – “procedu ral

democracy in the form of f ree and fair elections and t he balancing of instit utional

power dy namics between the branches of government ”.5 Substant ively,

constitutionalism no doubt involves distinct limits on the lawful powers of the

2 Constitution of the Re public of South Afric a, 1996 (“the Constit ution”)

3 S Sibanda “Not Purpose -made! Pos t-independence Constit utionalism and the Fight Against Poverty”

(2011) 22 Stell LR 482

4 See generally KE Kl are “Legal Cult ure and Transforma tive Constitution alism” (1998) 14 SAJHR 146

5 Sibanda (2011) Stell LR 494

LIBERAL CONSTITUTIONALISM, PROPERTY RIGHTS 707

© Juta and Company (Pty) Ltd