EH Brookes and the lost tradition of South African liberal thought: Van Staden
Key topics:
EH Brookes’s defence of classical liberalism in South Africa
The limits of democracy and the dangers of majority rule
The moral and legal constraints on state power
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By Martin van Staden*
Edgar Harry Brookes (1897-1979) was one of the great classical liberals of the previous century. He co-founded the Institute of Race Relations in 1929 and served as President of the IRR between 1931-1933, 1945-1948, and 1960-1961. That a thinker of this stature lacks virtually any recognition by South Africans today – including by many liberals – is unfortunate.
It recently gave me great pleasure to read Brookes’s Power, Law, Right, and Love: A Study in Political Values (1963), though I felt some melancholy and nostalgia for a time in the liberal movement I never got to experience: a time when South African liberals still took ideas (as in, ideology) and competing worldviews (not merely policies) seriously.
This book is a compilation of lectures delivered by Brookes at Duke University, and was published by the university on behalf of the Lilly Endowment Research Program in Christianity and Politics.
My favourite text by Brookes up to now had been the book he co-wrote with JB MacAulay, Civil Liberty in South Africa (1958), which I can still highly recommend. But Power, Law, Right, and Love has certainly overtaken it in my estimation, and to my knowledge represents the clearest exposition of Brookes’s legal and political philosophy.
With respect to my fellow liberals, the liberal movement in South Africa has (unduly) lost its appetite for such matters at a time it is arguably more important than ever. Almost every proud and open liberal you will come across today is a (very insightful) policy wonk – but the calibre of thinking exhibited by Brookes, and the level at which he thought, is almost entirely absent.
It is a great loss to our movement.
Disagreements
To be sure, I am not a Brookes disciple. I found his perspective on matters of day-to-day policy lacklustre, given his easy deference to statism, uncritically accepting certain state functions as consistent with the free society even though his writing on principles makes clear that they are not.
Presumably given these throwaway concessions, it is unfortunate that Brookes’s own grandchildren have sought to portray him as anything other than a principled classical liberal (which they characterise as “right-wing”) of the highest pedigree. Anyone who reads Power, Law, Right, and Love would put it down with no illusions about Brookes’s principled liberalism.
Brookes’s jurisprudence is of the radical variety in the best way possible. It goes entirely off script from the status quo understanding of law and order among milquetoast liberals and centrists of his and our day. So, to say I desire a (“right-wing”, “libertarian”) radicalism from Brookes that he simply did not possess would be incorrect. In fact, given the sheer audacity of the positions he took on legal philosophy, his uncritical statism in matters of “state services” is all the more jarring.
These odd concessions simply show that while liberal thinking about law had penetrated Brookes’s thought deeply, liberal economic thought – aside from the general principles of his dedication to property rights and a free market – had not. And this is, to a degree, excusable.
Not everyone needs to be an expert on every dimension of a particular political philosophy. And to my amazement, I found only one particularly objectionable concession on his part in the book, regarding state regulation of traffic. I thought Brookes would take a line on democracy that did not gel with reality, but even his endorsement of so-called “universal suffrage” is nuanced in the best possible way.
Quotes
Here follow all the coherent thoughts (except Brookes’s views on nationalism, which I wish to address in a separate future column) in Power, Law, Right, and Love, that I highlighted for my own future reference. These appear first according to category, and then in chronological order, with page references, and a note about the insight I gained from or had affirmed by that quote.
It’s a long one!
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BROOKES ON THE NATURE OF STATE POWER
***
“Let us take the example of Lieutenant Carey, who in 1879, in a moment of panic, galloped off and left the Prince Imperial of France alone to face a horde of Zulu warriors. Carey was acquitted by a court-martial, but when he was sent out to military duty in India no one would speak to him. If he started a conversation he was not answered. If he joined a group it broke up. Such a punishment would do more to break a man’s spirit than imprisonment. Still, it is not imprisonment, and it is the monopoly of the State to interfere with a man’s liberty, his life, or his property. In this sense the State is unique in its power. No other human society has the same sweeping physical might.”
– EH Brookes, Power, Law, Right, and Love, page 5
Insight: State power is unique and not to be equivocated to even the most severe exercises of private power.
***
“To eliminate force altogether is not only to destroy the State, with all its potentialities for good, but to make human life as we have known it on the earth unliveable [sic]. Only a disembodied community could wholly eliminate bodily force. This being so, it becomes important to see how this immense and terrible but necessary and inevitable thing can be controlled. For the recognition of power as essential in the life of the State does not mean the recognition of unlimited and uncontrolled power. Power and sovereignty are two different things. While we uphold the right use of the former, we may without inconsistency deplore the latter. We may even agree with Jacques Maritain that it would be a good thing if political philosophy could forget the name and even the conception of sovereignty. As Bertrand de Jouvenel says, quoting Montesquieu: ‘All history shows that every man who has authority is led to abuse it; he does not stop until he comes up against limitations. It is a hard saying but limitations need to be set even to virtue herself’.”
– EH Brookes, Power, Law, Right, and Love, page 7
Insight: The state’s existence is unavoidable and unfortunately necessary. But limiting this power is an equally unavoidable imperative. The state must never be sovereign: there must always be a higher power (the law – more specifically, the right).
***
“The State is the ultimate repository, more than any other institution, of man’s power, of the physical strength of organized humanity. In its use of physical force, it is almost unique; in its possession of unlimited physical force, it is unique. How great, therefore, the need to put this immense potential destroyer under control, spiritual, moral, and legal.”
– EH Brookes, Power, Law, Right, and Love, page 15-16
Insight: The state is a uniquely dangerous institution comparable to no other – an “immense potential destroyer”. Strictly controlling it is an imperative.
***
BROOKES ON DEMOCRACY
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“Nothing in all the long study of human history bears out the thesis that majorities are always right or even tolerable, that every majority decision is the considered will of the people, or that every election puts into office the General Will. The General Will of Rousseau is acceptable only in an idealized Swiss canton under exceptional conditions. But the marriage of the General Will to Leviathan, with Majority Vote as the witness to sign the register, is a portentous and unnatural alliance.”
– EH Brookes, Power, Law, Right, and Love, page 7-8
Insight: The democratic will of the people is not to be revered simply because it is the democratic will of the people. Majoritarian democracy is practically more aligned to its own theory in homogeneous societies with a high degree of social trust (which means it is the exception). Democracy cannot rightly be used to countenance injustice.
***
“No attack is directed against [national liberation or universal suffrage], and therefore no defence of them is called for. What is attacked is the doctrine that universal suffrage will in itself put all things right, that universal suffrage will in some mysterious way be an adequate controller of its own force. We are back at the point which John Stuart Mill reached in the middle of last century – the point at which liberalism itself has to step in to protect individuals, each of infinite moral worth, from the tyranny of the majority.”
– EH Brookes, Power, Law, Right, and Love, page 8
Insight: More than mere democracy is needed to secure political justice. In fact, democracy, and specifically the feature of so-called universal suffrage, is dangerous if taken by itself. Democracy does not adequately control itself, which is a problematic idea Brookes associates with the British system of government that much of the world had adopted at the time.
***
“Do what we will, however, majority rule will tend to be the normal rule of convenience in modern states, and since we cannot eliminate it, we must seek for remedies to mitigate the tyranny of the majority.”
– EH Brookes, Power, Law, Right, and Love, page 10
Insight: Though democracy might now monopolise public thinking around governance, the task of political community – particularly liberals (as always) – is to ensure it is limited, to avert tyranny.
***
“Alas! experience has shown very clearly in this twentieth century that, while schools and universities are undoubtedly a very powerful force, their power may be exercised for evil, supporting the very tyranny which they should check. Look where we will, the one sure safeguard of liberty is the loyalty and faith of individual human personalities and ultimately the Spirit of God in individual human lives.”
– EH Brookes, Power, Law, Right, and Love, page 11
Insight: Mere public education, as historical liberals like John Stuart Mill believed it would, is insufficient to constrain democratic excess. More is required. Specifically, a political culture that does not view the state as supreme or sovereign but perceives a Higher Power beyond it that must be accounted to.
***
“The tyranny of the majority is undesirable: is the remedy for it a tyranny of the minority, however good a minority? At least universal suffrage means that those who suffer from legislation have some opportunity of influencing those who make laws. And only they will know what laws in fact cause them discomfort or unhappiness. We must therefore support John Stuart Mill’s program for educating the masses and go on to consider his other remedies against the tyranny of the majority. One is the development of powerful and autonomous organs of local government, and with this we can be in hearty agreement, both because this is good in itself and also because powerful local government institutions are a check against an omnipotent central government. The federal principle operates as such a check, so within the component states of a federation does strong local government, so within all does the free individual.”
– EH Brookes, Power, Law, Right, and Love, page 11-12
Insight: Denying individuals the right to influence the legislation they are bound by would be unjust and should be avoided. But because universal suffrage is no good guarantor of justice, in addition to education, there must be a high degree of (federal) decentralisation to ensure that multiple centres of power can compete among each other, rather than cooperate to undermine liberty.
***
“Time alone can build up the traditions; the sensitive conventions of fair play find it hard to survive under the scorching wind of dynamic nationalism. While in England the law courts are unable to question the validity of an act of Parliament, it is customary to use the condemnatory term ‘unconstitutional’ for acts which are in fact unjust in their content or the methods of enacting which are questionable.”
– EH Brookes, Power, Law, Right, and Love, page 25
Insight: A healthy political culture can only be cultivated with time. Seeking to leapfrog the process by introducing a system that depends on a mature political culture (in Brookes’sBrookes’s context, the British parliamentary system in the South African context) is dangerous.
***
“It is important that men, whether in Africa or elsewhere, should recognize these truths. In the wider Africa, where modern forms of the doctrines of Rousseau and Marx have such considerable sway, it is time to stress the fundamentals of that political philosophy that runs like a golden thread through human history – the political philosophy of Plato and Aristotle, of Cicero and the great Roman jurists, of St. Augustine and St. Thomas Aquinas, of Hooker and Grotius, of Locke and Mill, of D’Entrèves and De Jouvenel and Maritain. It is not enough to give everyone the vote, for, right and inspiring though this is, it is not the whole of liberty: it was under a constitution which gave every man and woman over twenty in Germany the vote that Hitler came into power.”
– EH Brookes, Power, Law, Right, and Love, page 26
Insight: Democracy and universal suffrage are but a small part of just governance. Mere democracy does not equate to liberty, and indeed it can be the opposite of liberty at times: democratic logic brought Hitler to power.
***
“There is a case for gradualism in the feeling that a democracy needs education and experience and that every extension of the franchise should leave the new voters smaller in number than the existing electorate. This would not, except in the very first stages of liberalization, leave the white voters in ‘mixed’ African areas in a majority, but it would at least leave the experienced voters in a majority. There is much to be said for such a process, but it demands from emergent African nationalism more patience and self-control than can perhaps be expected from a movement fraught with deep emotion, a liberation movement. Probably the fate of gradualism depends much less on logic or political experience than on the amount of forbearance shown by tumultuous and emotional national freedom movements.”
– EH Brookes, Power, Law, Right, and Love, page 58-59
Insight: The liberation movement’s insistence on immediate so-called universal suffrage should have been seen as a red flag. A political culture grounded in violent extra-parliamentary struggle cannot in the wink of an eye be translated into a political culture of governance. The extension of democracy, if democracy were to be sustainable, has to be controlled.
***
“In the Republic of South Africa, the refusal of the white community to give any franchise at all is met by a mounting demand on the part of the subject majority for universal franchise and nothing short of universal franchise. Few African, Indian, or Coloured political leaders would undertake to accept less, even as an instalment. The more the years go by the stronger grows this feeling. It might be that, if a government able to implement its views offered a partial franchise, this would be accepted as one step in a movement to the enfranchisement of all. Similar reasonableness can hardly be expected toward the proposals of small reformist groups, unable to give effect to their views. The non-white leaders would then be giving up a great principle for ineffective support. By the time that reformers are in the saddle, it may be too late to expect such reasonableness from the impatient and voteless majority. To such a pitch has the unrealistic ideology of its government and the blindness of even its ‘good’ people, who keep on offering too little too late, brought that unhappy republic.”
– EH Brookes, Power, Law, Right, and Love, page 59
Insight: Had the minority government agreed to negotiate earlier, the deal South Africa could have had in the end might have yielded a better government and society than we have today. Moderates among the liberation movement and non-white communities were quickly discredited when the government was not willing to meet their polite requests, meaning they were replaced by the radicals. The African National Congress was initially very moderate, in fact quite liberal, but it was discredited among many of its supporters and constituencies when the South African Party, United Party, and National Party refused to concede on even basic civil liberties, opening the door to communist infiltration and calls for immediate universal suffrage and a unitary (socialist) state.
***
“There is another strong argument in favour of giving all men the vote. It is that legislation affects all, and that any individual knows how legislation affects him with a poignancy not experienced in the same measure by anyone else. It is on the rock of this fact that benevolent paternalism has suffered shipwreck, and fundamentally the faults of paternalism have been unteachableness and lack of humility. Are these not still the faults of the voters who deny the unenfranchised the vote?”
– EH Brookes, Power, Law, Right, and Love, page 61
Insight: If one is bound by legislation, one must as a matter of right have an influence on that legislation. This is (in my view) the strongest argument for so-called universal suffrage. I do disagree with Brookes however, in his characterisation that each person knows best “how legislation affects him”. Voter A’s vote does not only endorse “legislation [that] affects him” – one of democracy’s inherent problems (and evils) is that Voter A (part of a majority bloc)’s vote might continuously countenance legislation that primarily affects Voter B (part of a minority bloc). I do not fault Brookes for this oversight. The rent-seeking excesses of democracy had not yet been obvious in Brookes’sBrookes’s day, and he only had the Western states (where majorities and minorities fluctuated dynamically) as a frame of reference.
***
“A new state formed in the first flush of nationalist enthusiasm by a party that has almost inevitably carried nationalism to excess ought not to begin its career with a completely flexible constitution and unfettered parliamentary sovereignty. This faith in the British tradition, so flattering to Englishmen, is misplaced when the background of British tradition and modes of thought is missing. It was the gravest fault committed by General Smuts and those who followed his lead in the South African National Convention. During the last half century, the history of South Africa has largely been the story of the way in which those who disbelieved in the spirit of the British Constitution have used its forms to achieve their own very different type of state.”
– EH Brookes, Power, Law, Right, and Love, page 63
Insight: Parliamentary sovereignty is particularly unsuited to revolutionary environments, given the inevitable marriage of nationalism and revolution, combined with nationalism’s (usual) exclusionary character. Outside of the very specifically British context with its conventions and cultural constraints, the British model will tend to be used to settle ethnic scores. South Africa erred significantly by adopting the British model in 1910. (Thank goodness we abandoned it in 1993.)
***
“For this an unpersecuted Opposition, a free press, and an unfettered public with a sense of political responsibility are essential. Deny these and you have no real democracy.”
– EH Brookes, Power, Law, Right, and Love, page 65
Insight: Not only voting, not only a free opposition, and not only a free press, are necessary conditions for an equitable democracy. Crucially, democracy is dangerous unless there is “an unfettered public with a sense of political responsibility”. If the public is fettered (in other words, largely dependent on the patronage of the state), or lacks a deep sense of responsibility (that is, the voters who vote for X must be willing to bear the cost of X, not happily and giddily have the minority bear that cost), then democracy is a bad idea. Under such circumstances it is merely rent-seeking.
***
“Universal suffrage carries with it the brightly gleaming crown of the General Will. But of what avail is this golden glory if it is put on the unsightly and ferocious head of Leviathan? The combination of universal suffrage with despotism is no new thing. At its best it produced Napoleon, at its worst Hitler, but never liberty.”
– EH Brookes, Power, Law, Right, and Love, page 65
Insight: When the ostensible democratic “will of the people” is combined with a state unlimited by law (right), you create the conditions for totalitarian tyranny. Democracy is not a silver bullet.
***
“But the people deprived of freedom, deprived of choice, uneducated in political responsibility, may well put into office tyrants who claim to be the creatures of universal suffrage, but are in fact despots. An uninstructed and unfree ‘general will’ must always produce tyranny, and if not the tyranny of an ‘elected’ despot, at least the tyranny of the majority, against which that great liberal John Stuart Mill waged such implacable war.”
– EH Brookes, Power, Law, Right, and Love, page 65
Insight: The notion that democracy will self-regulate and that the imperative is simply to put it in place is fundamentally wrongheaded. Democracy needs specific conditions to be present for it to serve liberty. Unlike the transcendent imperative of freedom, democracy does not work in all places under all circumstances. (Brookes, like many other liberals, understandably had a misapprehension of Mill, who openly regarded himself as a socialist. I concede that On Liberty is one of the great works of liberalism, but it must be strictly separated from its author.)
***
“Bertrand de Jouvenel has told us that modern students of democracy must study not only the ‘who’ but the ‘what.’ The study of the ‘who’ is virtually over; except in a few multiracial communities the principle of universal suffrage is accepted. But a modern democracy needs to study the ‘what’ of government no less than a medieval monarch. It too needs to have a De regimine principum written for it. And, as has been shown in earlier chapters, one at least of the lessons which the elected rulers of a democracy must learn is the submission of power to law. Tyranny, which is the revolt of the individual ruler against the law, is not to be justified because the tyrant has been chosen by universal suffrage. Civil liberty, which is the rule of law rather than the rule of caudillos, national leaders, or civil servants, must come high in the list of democratic virtues.”
– EH Brookes, Power, Law, Right, and Love, page 65-66
Insight: The notion that anything goes so long as “the people” have chosen the government, and the government is acting according to the will of the people, is fundamentally problematic. Democracy cannot simply concern “who” if it is to be a servant of liberty (as many liberals perhaps too hastily insist that it is) – “what” is arguably more important. The recognition and protection of civil liberty, alongside the rule of law (state power limited by law), must be preconditions for any democratic society.
***
“Universal suffrage, moreover, was no more a part of tribal life than individual liberty. It is extraordinary that men should be found to deny individual liberty in the name of tribal tradition, who at the same time support so utterly untribal an institution as the individual vote.”
– EH Brookes, Power, Law, Right, and Love, page 66
Insight: Brookes was presciently calling out the intellectual dishonesty – still with us today – of so-called “Africanists” being the loudest voices for (Western) democracy, while also being the loudest voices against (Western) liberty, when in fact Western democracy was always understood as being legitimised by liberty. Even now, in 2025, former “struggle stalwarts” who had much to say about South Africa having to swiftly adopt Western democracy, now insist that the country impose restrictions on property ownership, etc., because it is “un-African”.
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“When we say that a democracy needs education, we do not mean merely that all the voters should be literate, but that they should think widely and naturally, and this cannot happen when every important political decision is a matter of ‘thinking with the blood.’ An uninstructed people voting on emotional grounds for a ‘leader’ does not constitute a democracy.”
– EH Brookes, Power, Law, Right, and Love, page 68
Insight: Mere schooling – what even many liberals hold out as the key to contriving a better democracy – is insufficient to be “educated” for democratic purposes. There must be a fundamentally informed, sober political culture underlying the democracy for it to be a valid democracy.
***
“The fact is that modern theories of democracy, especially when influenced by that most undemocratic institution the Soviet Union, are based on an exaltation of man quite beyond the experience of man in the twentieth century. This is the main argument of Lord Percy’s excellent book, ‘The Heresy of Democracy’. Democracy is not a heresy; but democracy divorced from God, freedom, and immortality, and from every moral imperative, is certainly a heresy and a dangerous one. Actions are often justified today not because they are right but because they have the support of an uninstructed majority behind them. Man, as we have seen him in the staffs of Hitler’s concentration camps is most certainly not an object of worship except in a devil’s Mass, and we need some fundamental standard of right, other than a majority vote, if democracy is to be worthwhile.”
– EH Brookes, Power, Law, Right, and Love, page 69
Insight: Democracy that uncritically venerates the voter as the pinnacle of all wisdom, insight, and rightness, is a dangerous heresy. Democracy needs various other preconditions and imperatives before it can claim legitimacy. Mere majority vote is at best meaningless, at worst evil.
***
“Further, as Jacques Maritain has so often reminded us, the State is only one organ of society. In the new democracies all stress is laid on the government, on the State, its leaders and its organs. The freedom of the churches and of the universities and of other private societies is, if possible, even more vital in the new democracies than in the old. Life is not all politics and man is not only a citizen. As in other spheres, so in the sphere of the State, we find ourselves best by denying ourselves, and the best democracy will consist of those citizens to whom citizenship is less important than humanity, freedom, life, and love.”
– EH Brookes, Power, Law, Right, and Love, page 69
Insight: A multitude of centres of (tangible) power and activity outside the state are essential for democratic societies. Totalising politics – manifested most prominently today in the idea that every sphere of life must be “democratised” – undermines democracy itself.
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BROOKES ON THE LAW
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“Modern ideas of law, especially those influenced by British practice, tend to associate [law] with the action of the legislature in the exercise of its sovereign power. This is to make law the creature of power rather than a restraint on it. We shall recur to this point later, but in the meantime, we must note that this is a very recent conception of law and would have seemed strange indeed to men in most of the long centuries of human history.”
– EH Brookes, Power, Law, Right, and Love, page 16
Insight: Law has in recent centuries been reconceived as “legislation”, which has rendered The Law effectively subordinate to politics. Throughout history, law properly understood has been regarded as sovereign over politics.
***
“The emperors had become autocrats, but the law was above them. The law of nature, the law of right reason, the basis of the conduct of the reasonable man, flowed from the same source – the observation of and reflection upon the principles of law discovered among the nations of the world – and not on legislation. Such was the view of law, Germanic as well as Roman, during the Middle Ages. Law was a thing to be discovered and reverenced, not made.”
– EH Brookes, Power, Law, Right, and Love, page 17
Insight: When Emperor Justinian had his great Corpus Iuris Civilis (arguably the first codified source of Roman law) drawn up, it was premised on the ius gentium (the legal principles discovered over time, and applied to all, across nationality boundaries), rather than the special legislative dispensations the Roman state had crafted.
***
“From time to time there have arisen among human beings men who were great legislators, men who strove to turn their will or even their whim into law, such men as Napoleon, or Hitler, or Shaka. Even at their worst, men of this kind left certain rules of law untouched, and so great was the prestige of law that they tried to express their arbitrary will in legal guise, giving it the form of law, in order that it might acquire some of the sanctity due to the reality of law.”
– EH Brookes, Power, Law, Right, and Love, page 17
Insight: Tyrants have always sought to give legal form to their opinions, because they understand the reverence that “the law” commands in the minds of their subjects. But merely giving those opinions legal form does not mean they carry legal substance (or the “reality of law”).
***
“The law of nature is that which right reason shows the ordinary man to be fair. No special religious revelation, no enactment of a sovereign prince, is needed to tell the average man that pacta sunt servanda, that contracts entered into without fraud or force are to be kept. He knows that to be true and to be binding upon the State in the exercise of its great but not unlimited power.”
– EH Brookes, Power, Law, Right, and Love, page 18
Insight: Natural law is that which the ordinary person would instinctively and reasonably describe as “law” without having considered the intervention of a supposed authority figure, and the state is just as bound by it as anyone else.
***
“The majestic peak of natural law is unchanging, but men approaching it from different directions may give a different account of it. The picture drawn by someone nearer may differ from that sketched further away, but the mountain itself does not change.”
– EH Brookes, Power, Law, Right, and Love, page 19
Insight: Every civilisation uses different rhetoric (and even logic) to describe effectively the same phenomenon (the law of nature). It is no surprise that murder (for example), basically, has been regarded as illegal by all civilisations throughout history – a conclusion they reached independently.
***
“Deeply written, then, in the heart of mankind, is this conception of law as something without which power is intolerable. It is only in very recent decades that the misleading conception of law as the expression of the sovereign’s will has opened the door to the use of arbitrary power made to look less wicked by being clothed with the form, though not the reality, of law.”
– EH Brookes, Power, Law, Right, and Love, page 19
Insight: Constitutionalism subjected state power to law – a veritable revolution in subject-state relations. As a result, since the dawn of constitutionalism, the political elite has very effectively redefined “law” to mean “whatever we prefer, dressed in legal garb”. Society has been successfully misled.
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“The Constitution of the United States shows the way in which the ancient conception of the supremacy of law can be formalized in the modern state. But all constitutional safeguards of this kind must depend ultimately on the reverence for law in the community. This must be a reverence for the principles of right, not for a so-called ‘law’ or statute which outrages them.”
– EH Brookes, Power, Law, Right, and Love, page 19-20
Insight: The US Constitution (as the first modern constitution subjecting state power to formalised and written rules) is notable. But even within this context there must not be arbitrary reverence for the document but rather for the principles and values it entrenches. If the reverence is owed to the document (ink on parchment), compliance becomes mechanical and the reverence will in time lose its grounding. There must be substance behind the form.
***
“South Africans do have a muddled respect for law so great that arbitrary action has to be based on the authority of a statute to be fully acceptable. Thus it is not merely a respect for law that is needed, but a greater understanding of what law really means.”
– EH Brookes, Power, Law, Right, and Love, page 20
Insight: South Africa’s odd conceptualisation of the “rule of law”, which merely means formal statutory or constitutional authorisation (“an enabling provision”), combined with South Africans’ cosmetic obsession with being “law-abiding”, is a dangerous cocktail. We need to look beyond those things that simply call themselves “law” and ask deeper questions of substance: is this thing truly “law”?
***
“When in 1908 and 1909 the National Convention set to work to create out of the four colonies the Union of South Africa the question of the political rights of non-white South Africans was one of the most formidable difficulties of the founding fathers. The statesmen of the Cape Colony were not prepared to barter these rights away. No one party, no one racial group, monopolized this attitude. Among its foremost protagonists were Afrikaners such as J. H. Hofmeyr (‘Onze Jan’), J. W. Sauer, and F. S. Malan. The fiction has been sedulously spread that it was pressure from the British government which secured the entrenchment of Colored political rights in the South Africa Act. The pressure came not from the British government, but from fellow-statesmen and fellow-Afrikaners in the Cape Colony. It is fair to say that but for the entrenchment of Colored voting rights in the Cape Province there would have been no Union. Even if the pressure had come from the British government, it would still have been part of the bargain of Union. A great benefit had been conferred on South Africa at a small cost, and this contract was freely entered into by the statesmen of all four colonies of South Africa without fraud or force. It is indubitable that this was a case where pacta sunt servanda. To evade the obligations of this contract while retaining its benefits was against the law of nature, and what purported to be legislation was, in view of its conflict with true justice, not law in the deepest and truest sense of that term.”
– EH Brookes, Power, Law, Right, and Love, page 21
Insight: Securing a concession based on a promise to recognise and protect individual rights, only to wait it out and later undo that promise (without the concession being similarly undone) is an injustice, and no “law” adopted in accordance with that injustice is true law. Brookes wrote this in the context of the National Party undoing the coloured franchise in the Cape Province, but this insight is especially important today in light of the radical liberation movement moving away from the concessions and compromises of the 1990s without moving away from the benefits it received from the same compromises.
***
“An act of political spoliation which was at the same time a breach of faith was thus clothed with the diaphanous texture of an act of Parliament. Power was thus inadequately covered by ‘law.’ Observe that no South African statesman would have dared to take away a fundamental right merely by his own arbitrary whim. The reverence for law cherished for many generations had to be appeased by a document which looked like a law. Hypocrisy in this instance was the homage paid by vice to virtue.”
– EH Brookes, Power, Law, Right, and Love, page 23
Insight: Brookes applies his framework to the revocation of the coloured franchise in terms of an “Act of Parliament”. The state would not simply say, “hah, yeah, no coloured rights, ‘kay?” It will always write a document, stamp “Act” on it, and pretend that it is simply “following the law” when acting in terms of that document. We see a lot of this today.
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“At this stage the ‘law’ had attained a formal validity: it was no longer in conflict with the letter of the [1910] Constitution. But everybody knew that this had been obtained by a clever trick. The fundamental issues were unchanged. A ‘law,’ valid in form, had enacted a grave injustice. The South African voters as a whole were, however, satisfied, because the injustice had been done by ‘legal’ means.”
– EH Brookes, Power, Law, Right, and Love, page 24-25
Insight: The South African public’s preoccupation with legal form is not a new thing in 2025 – it transcends time and race. As was the case in Brookes’s day and is the case today: South Africans find it very difficult to see beyond formalistic façades.
***
“But between a ‘law’ that is a law only because it is a formal act of power by a sovereign legislature and a law that is a law because it is essentially just and not in conflict with the law of nature there is a great gulf fixed, and the attitude to be attacked is that which gives to the former the sanctity which belongs only to the latter, for this is to crown power with the name of law, not to call in law to control power.”
– EH Brookes, Power, Law, Right, and Love, page 25
Insight: Simply calling something that is not law “law” does not make it law. Only that which is truly law, deserves to be respected as true law, and only true law can legitimise state power. We can only justly have power be the handmaiden of law, never law be the handmaiden of power.
***
“The issues must be put again and again until they are plain to us all, that law is the natural check against power; that law which is really ars aequi et boni is entitled to deep reverence; that so-called ‘law’ which is merely a cloak for power is not really law at all; that, finally, it is preposterous to ask for reverence for such ‘law’ as if it were true law, or to demand obedience to it as a Christian duty. Otherwise we find ourselves involuntarily assenting to the definition of Thrasymachus that justice is the interest of the stronger.”
– EH Brookes, Power, Law, Right, and Love, page 25-26
Insight: Brookes summarises his argument up to now. The mere form of law used to rationalise acts of pure power does not give rise to true law. True law is not made, but discovered.
***
“Even those who are most devoted to the doctrine that the vote is everything show their secret and deep hopes and fears by throwing the cloak of ‘legality’ over their tyrannical actions.”
– EH Brookes, Power, Law, Right, and Love, page 26-27
Insight: Even those who are fanatically preoccupied with democracy recognise that democracy alone is insufficient, so they appeal to (a higher value of) law. If the Expropriation Act is the “will of the people”, why bother with an Act at all? Just confiscate property. No, even tyrants recognise that the ostensible will of the people only takes them so far.
***
“In conclusion, may we accept two simple propositions, viz.:
1. Power to be tolerable needs to be controlled by law, and this is one of the deepest and oldest convictions of the human race.
2. Law, if it is to control power, may not be defined merely as the will of him who holds the power, but must rest on fundamental principles of justice, acceptable to the human heart at its best.”
– EH Brookes, Power, Law, Right, and Love, page 27
Insight: Brookes summarises this chapter of this work. Power without law is unjust, and (as a result) law cannot be circularly justified with power. Only true law can legitimise power, and true law exists independently of the wants and desires of those who are powerful, whether this is a dictator or a democratic majority.
***
“We have seen how important it is not to get confused by the different meanings of the term ‘law,’ nor to give to a statute which is a mere emanation of power the reverence which is due only to the true principles of law based on right. It is one of the ambiguities of the English language that ‘law’ can be used in these widely differing senses. To make the argument clear, let us speak of ‘right.’ We may get law and power mixed up in our minds, but never power and right.”
– EH Brookes, Power, Law, Right, and Love, page 29
Insight: Language itself changes how we conceive of things. The problem in English is not evident, for example, in Afrikaans. “It’s against the law” in English means both “it’s against the principles of right” and “it’s against legislation”. “Dis teen die wet” in Afrikaans only means “it’s against legislation”. The nuance in Afrikaans is however lost, much like in English, through the political elite’s essential submission that “wet” (legislation) and “reg” (right, The Law) are synonymous.
***
“It is clear that this thought, carried to its logical conclusion, must condemn as inconsistent with right and justice all restrictions based on race and color that have the effect of degrading the person of color and denying his full humanity.”
– EH Brookes, Power, Law, Right, and Love, page 30
Insight: So-called “laws” that weaponise a person’s skin-colour (over which they have no control or influence) are inherently unjust and therefore cannot be true law.
***
“All power is dangerous unless it is controlled by right. The power of the State, inevitable and not immoral, can become a raging peril, unless right, and not mere law, limits its exercise. Right, righteousness, justice – use whichever term you prefer – is the fact which can make power a blessing. Therefore let this great thing which we find in us at our best, and which is yet beyond us as well as in us, receive the best panegyrics which we can offer, and let us demand that the word ‘law’ if it is to be used to invoke our obedience must be impregnated with this which alone can give it a moral value. The path of right is in itself valid and in itself entitled to claim our hearts’ obedience and the loyalty of our wills.”
– EH Brookes, Power, Law, Right, and Love, page 39-40
Insight: The state is inevitable, and will either be just or unjust unless its power is controlled and limited by law (what we call constitutionalism) – but not just any law. Right – The Law, not mere legislation – must control the state. We must reconceive of “law” as we understand it today to be more than the political elite’s mere say-so, and if we are unable to do this, then we must divest “law” of its compulsory nature. Rightly, we are only required to obey that which is right, not merely codified in legal garb.
***
BROOKES ON LIBERTY AND THE SOCIAL CONTRACT
***
“Practical political scientists would do a great service to humanity if they could find ways and means of checking majority rule by introducing elements of government by consent and the fact that such government cannot be fully realized in the State as we know it ought not to prevent us from approximating to it as closely as we can. No political philosopher would claim that any state in history has ever achieved absolute justice, yet none would say that the State should not try to be as just as it can.”
– EH Brookes, Power, Law, Right, and Love, page 10
Insight: Just because the social contract’s supposed appeal to full “consent” by legal subjects to be bound to government diktat is impossible to fully attain in reality, does not absolve the political community from always having to pursue and prioritise consent as a worthy value.
***
“Mill desires passionately to safeguard within society that inner citadel of personality which makes the individual free. Mill’s picture of the liberal state is virtually a federation of persons, and surely it is right that Hiram P Smith has rights against the State of Massachusetts no less than the State of Massachusetts against the United States of America. Even a unitary State should be a federation of human personalities possessing some powers exclusive to themselves.”
– EH Brookes, Power, Law, Right, and Love, page 12
Insight: Political institutions are key to safeguarding liberty, but insufficient. Individuals must themselves be capable of wielding power (e.g., firearms, property, civic organisation) in defence of liberty.
***
“The true check on power, therefore, is right, and this enables us to withstand the sophistries that defend wrong because it has been thrown into the form of a statute. Without that justice which is the exercise of authority in the maintenance of right the State has no moral authority at all. ‘Remota iustitia, quid sunt regna nisi magnalatrocinia?’ St. Augustine speaks the truth when he says this. The immense power of the State used unjustly is no better than organized robbery.”
– EH Brookes, Power, Law, Right, and Love, page 29
Insight: The state is only legitimate insofar as it acts in accordance with The Law, or right (reg), not simply its own legislation (wet). When it replaces reliance on right with reliance on legislation, the state is no more than an organised criminal syndicate dressed in law-vibes.
***
“Slavery is surely condemned not because of any legal anomalies about it, nor because of the frequent occurrence of cruelty within the system, for though slavery is often brutal it need not be so. Slavery is condemned because it makes one human personality completely subservient to another human personality. Man, who is an end in himself, is made a means to an end.”
– EH Brookes, Power, Law, Right, and Love, page 30
Insight: Slavery is not bad because it is cruel, but because it subjects one totally to the will of another without the former’s consent or allowance to revoke that consent. Liberty does not have mere instrumental value: it is an end in itself.
***
“If this is the real reason for the condemnation of slavery, we have a clear indication of the essential criterion of what is just and what is unjust. That is unjust which fails to respect personality.”
– EH Brookes, Power, Law, Right, and Love, page 30
Insight: This has to be linked back to Brookes’s views on true law. Law is only truly law when it is just. Failing to respect the individual person and their freedom is unjust. Law that is not premised on individual freedom, therefore, is unjust.
***
“A free state must be, in short, a federation of free persons, secure in their personality. There must be spheres of life in which the State cannot intervene. This is liberty.”
– EH Brookes, Power, Law, Right, and Love, page 31
Insight: The state is not society’s parent or caregiver; it is not the north star to which all must defer. The state has its place, but its place is not total or superior over the place that the free individual and their associations have. The state may not stray beyond its fixed role.
***
“For these rules of the law court call for a wider application in the whole field of government. The defence of personal freedom needs, as we have seen, an impersonal adjudicator. That is why the law courts, with their long tradition of impersonal austerity, ought to be the protectors of private rights. Executive officers have not the same training and do not work in the same atmosphere. Even civil servants cannot be trusted to be completely impartial in matters where sentiment can easily be roused.”
– EH Brookes, Power, Law, Right, and Love, page 32
Insight: The judiciary is the primary guardian of liberty in the state structure. But to do this, it must be austere (conservative: address itself only to the dispute before it, according to the evidence before it) and impersonal (neutral as to the dispute and not be ideologically committed to the state’s partisan agenda). Executive officers and civil servants must be assumed to be enforcers of the partisan agenda and should not be mistaken for being independent or non-ideological.
***
“That is why we must look with the utmost suspicion on arguments which seek to make us follow ways that we feel instinctively to be wrong because we have a noble end in view. It is not necessary, as we have seen earlier, to take the view that force is always wrong. But it is necessary to reject force merely as the quickest and most efficient means of obtaining an arbitrarily selected end, unless we are convinced that it is in very truth the best way. Liberalism can never insist enough on this fundamentally liberal doctrine and any school of politics which rejects it renders itself by that very rejection open to criticism.”
– EH Brookes, Power, Law, Right, and Love, page 51-52
Insight: Liberalism and the free state are principally concerned with how force, or coercion, is employed. It may not be a first resort, especially when applied to those who do not share the force’s end-goal. In a free society, everyone is entitled to choose their own ends in life. For the political elite to choose for us “an arbitrarily selected end”, its utilisation of violence to compel us to achieve this end is doubly unjust.
***
“But if Africans need any gospel more than another at this time, it is that the man should be challenged who treats politics as the whole of life. It is a great danger and it is particularly likely to happen in any liberation movement or in the life of any idealist who fights for liberty. Just as religion is less real and effective, less truly religion, if it leaves out politics, so is politics less truly politics, less fully what the people need, if it leaves out religion or art or poetry or science.”
– EH Brookes, Power, Law, Right, and Love, page 53
Insight: There is danger in the belief that politics is the most important and overriding domain of life. Other spheres of life are equally, if not more, important. Allowing politics to always trump other considerations is fundamentally anti-social.
***
“But what of the forces of liberation themselves? Whether the soldiers of liberty be Africans or whether they be dedicated white men determined to see that justice is done to Africans, the whole tendency of the liberation struggle, influenced as it is by dubious philosophies of life from outside Africa, is to narrow life by equating it with the liberation struggle.”
– EH Brookes, Power, Law, Right, and Love, page 55
Insight: The totalitarian nature of the African decolonisation movement was inherently harmful: “no X before liberation”, etc., subjected all other vital aspects of life to politics. This wayward worldview has been carried over into independent Africa.
***
Conclusion
Not only was Edgar Harry Brookes a great South African classical liberal, but unlike many of his contemporaries who focused almost exclusively on South Africa-specific issues, he elaborated the fundamental principles of the legal and political philosophy on which he based his opposition to Apartheid and authoritarianism in general. This thought is worth keeping foremost in mind among South Africa’s liberal movements today.
*Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR).
*This article was originally published by Daily Friend and has been republished with permission.