Socialist judge who engineered SA’s "transformationism" now cries foul over its results

Martin van Staden takes aim at retired judge Dennis Davis's newly republished Democracy and Deliberation, which now admits South Africa's constitutional order is drifting toward authoritarianism. Van Staden's charge: Davis helped write the playbook. Decades of "transformationist" jurisprudence - treating the Constitution as a tool for social engineering rather than a limit on state power - built the very machinery now being used against liberty. Worse, Davis's list of democratic backsliders (Trump, Modi, Orbán, Netanyahu) conveniently excludes Ramaphosa's COVID-era state of disaster or the ANC's own authoritarian instincts. Van Staden's verdict: selective outrage from a man reaping what he sowed..By Martin van Staden*.Dennis Davis has published a second edition of his 1999 book Democracy and Deliberation. In an extract from the new edition, appearing in the Daily Maverick, he now concedes that his earlier optimism was misplaced: the constitutional instrument was not enthusiastically embraced by government, and “dark clouds of a more authoritarian model of governance are gathering”.The evidence he offers is the combined electoral support for the Economic Freedom Fighters, uMkhonto weSizwe, and the Patriotic Alliance: parties that seek fundamental constitutional change, and the failure of economic transformation, which has bred “political populism” and constitutional scepticism.Despite his newfound scepticism, Davis remains committed to a “social democratic” economic policy that he believes is evident from the Constitution. Indeed, what he does not say is that he spent decades preparing the constitutional soil for precisely the harvest he now laments.Social(ist) engineerLong before Professor Koos Malan coined “transformationism” around 2014, Davis was among its most influential academic architects. In his 1999 work, he rejected the so-called “negative” liberty that limits state power in favour of a materialist conception of equality (that is, equity). As he noted, the Constitution had immense “transformative potential”, rooted in South Africa’s history.To Davis, the Constitution authorises – and in places requires – the state to engage in widespread social engineering, primarily by subjecting private activity to scrutiny in pursuit of that vision. Despite this, he sought at the same time to maintain that the Constitution protects us “from those who wish to impose their version of humanity upon the rest of us”. (You can only pick one!)This reconstructed society was not value-neutral. In 1987, Davis wrote that South Africa’s particular history justifies the adoption of “some form of socialism” for legitimacy’s sake. In that same breath, he wrote that a compensation clause in the new Constitution for those subject to expropriation would be “ominous”.So when Davis writes – preposterously, I might add – that the Constitution ostensibly requires the creation of a “new community” in South Africa, that should conjure up images of the “new man” of socialism. That kind of social engineering is precisely what Davis had in mind.The 1999 book is therefore best summarised as “democracy and deliberation only when they produce the outcomes I prefer”. Davis has not abandoned that premise. He simply dislikes the fact that this unlimited conception of state power has (predictably) led to outcomes he would not necessarily countenance.Cynical selectivenessDavis’s catalogue of the contemporary authoritarian threats that inspire cynicism is revealingly selective.He names Donald Trump in America, Narendra Modi in India, Viktor Orbán in Hungary, and Benjamin Netanyahu in Israel as examples of democratic backsliding.All these people were elected according to the democratic premises Davis claims to prize. In fact, Netanyahu is the only democratic leader for many miles in either direction, in that part of the world.But, in this breath, Davis offers no equivalent scrutiny of Cyril Ramaphosa, who oversaw the most intrusive “state of disaster” in South African history, complete with sweeping restrictions on movement, association, and commerce that stand on a par with the Apartheid-era emergencies, as far as range is concerned. Ramaphosa is also the only democratic-era president that has sought to make substantive amendments to the Bill of Rights, and so water down established rights-protection.Nor does Davis mention Lula in Brazil, Claudia Sheinbaum in Mexico, or Herr Keir Stürmer in Britain: politicians whose records of centralising power and restricting dissent are at least as substantial, if not more so, as those of Trump and company.The increasingly popular authoritarian legal philosophies of the likes of Tembeka Ngcukaitobi locally receive no mention, while Davis singles out foreigners Carl Schmitt and Adrian Vermeule as supposed avatars of constitutional backsliding.It’s clear what Davis is doing.When “right-wing” figures expand or defend state power, it is dangerous authoritarian-ism. When “left-wing” figures do the same, it is either unremarked or quietly excused. Davis’s own intellectual and judicial record places him firmly in the latter camp, so that is hardly surprising.ContradictionsThis selectivity flows from deeper contradictions in Davis’s constitutional thought.At one point in his 1999 book, Davis sought to claim that the Constitution provides “overwhelming textual support for a commitment to a caring and sharing society in which the autonomy of each individual is only part of the recipe”.The Constitution does no such thing, of course, and “overwhelming textual support” is a strong statement.Yet, in the same book, Davis’s golden thread is that constitutional meaning is not fixed, but shifts with “political development and social experience”.The opportunism is brazen.When the Constitution “clearly” provides for social welfare or some other form of state intrusion into the protected arenas of life, then there can be no question about it. But if the Constitution clearly provides for the restraint and strict delimitation of state power in favour of the liberty and autonomy of individuals and communities, then we must be flexible with the constitutional language and abandon textual dogmatism.Genuine constitutionalism under a written, entrenched constitution necessarily implies that constitutional meaning is locked-in, despite the wants or desires of transient political majorities or the latest fad in jurisprudence. Otherwise, there would be no point in a written, entrenched constitution. We might as well return to parliamentary sovereignty.The same tension appears in Davis’s treatment of the US Supreme Court judgments in Lochner v New York (1905) and Citizens United v FEC (2010). The former judgment makes repeated appearances in his 1999 book as the embodiment of regressive jurisprudence, while the latter appears in the latest edition as an example of democracy supposedly being sold to the highest bigger.The critics of Lochner, of course, rarely actually read the judgment, for all it did was require government to justify limitations on established liberties – yes, including economic ones. The Court never said the state may not infringe on the property or contractual freedom of legal subjects, only that when it does, it must provide a firm justification.Lochner is the functional equivalent of section 36 of the South African Constitution and the reasoning of the Constitutional Court in Smuts v De Lange, just ninety years earlier.Davis himself has defended the justification approach before, quoting approvingly the work of Etienne Mureinik. But he condemns Lochner because it carries the wrong political associations.Citizens United, on the other hand, was a full vindication of free expression and participatory democracy by rejecting the arbitrary distinction between natural and juristic persons. This judgment simply prevented the state from manipulating political discourse. It is a restraint on government power, not an expansion of it: the very opposite of authoritarianism.Made his bedDennis Davis helped construct a jurisprudence in which the South African Constitution (and perhaps more importantly, the thinking around it) was not primarily a limit on power, but an instrument in service of power.Now his optimism has waned, because someone other than the angelic stewards of transformation that he anticipated has taken the reins, or is close to taking the reins.I do not want to create the impression that I am criticising Davis for being insufficiently democratic. After all, I am no democrat myself.I do not believe “democracy” or “deliberation” are ends in themselves. Liberty is the substantive good that constitutionalism protects, even against majority will.The problem with Davis is that he agrees, ultimately, that substantive outcomes matter more than procedure. That is, democracy and deliberation are only valid when they produce the outcomes he wants, not when they produce Donald Trump or Benjamin Netanyahu. However, his lodestar is equity. The asymmetry is decisive..Read more:.Is equality possible or delusional?: Chuck Stephens.Securing liberty requires the state to withdraw and let things be (laissez faire). Securing equity, on the other hand, requires the state to place its boot, firmly, on the neck of anyone standing in the way of arriving at the neatly-defined academic utopia waiting just over the horizon.The first produces limited government by design, whereas the second produces authoritarianism by necessity.Davis helped design the machinery now running out of control. He cannot credibly complain about the destination while insisting on the same route and traffic rules. The bed was made long ago. He should lie in it, or join those of us seeking to respect a more coherent and sensible constitutional jurisprudence..*Dr Martin van Staden is the Head of Policy at the Free Market Foundation and Editor of the Race Law Project at the South African Institute of Race Relations. He earned a Doctor of Laws (LL.D.) from the University of Pretoria and is widely published and featured on popular and academic platforms. Van Staden additionally serves as a director of both the Hayek Council for a Free World and the Free Speech Union SA, and as a fellow at both the Consumer Choice Center and Initiative for African Trade and Prosperity. Visit www.martinvanstaden.com for more..This article was first published by Daily Friend and is republished with permission..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here. Support South Africa's bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here.

Socialist judge who engineered SA’s "transformationism" now cries foul over its results

Related Stories

The State owns your bank, your telco, your retailer — who's really in charge?

SA's quiet break-up: Why the enclave economy is now the most important investment thesis in the country

From 2,000 companies to 11: How ANC policy is killing South Africa's 160-year diamond industry

The hollowing out of Eskom: De Ruyter's prophecy becomes reality