Politocracy: An assessment of the coercive logic of the territorial state and ideas around a response to it

Koos Malan

Description

A masterly summary of the history of Western political philosophy, political science and constitutional law introduces a profound and disquieting analysis of the modern territorial state. Isn’t ‘democracy’ in a heterogeneous society with a numerically dominant group necessarily synonymous with the oppression of minorities? Can human rights and the courts sufficiently protect the uniquely distinctive character of minorities? Prof Malan presents his partial solution of ‘habitative communities’ – voluntary groupings of like-minded persons that can be formed on various bases – by no means in a prescriptive manner, but as a thought-provoking contribution that will give rise to serious reflection and debate in both academia and political practice. – Eberhard Bertelsmann, High Court, PretoriaIs the classical triad of “monarchy, aristocracy, democracy” soon to be supplemented with a fourth type, namely “politocracy”? Or should we rather replace the triad with its further evolved form, which affords a more plausible representation of the diversity of our society? Koos Malan has succeeded in arousing our thoughts on the path followed by the modern state, by referring to the most authoritative authors – past and present. But above all, it is his own analysis that urges the reader on, not only towards new designations, but especially towards improved realities. – Frank Judo, Advocate, BrusselsThe author demonstrates that the modern territorial state in fact fails to provide due protection to various linguistic, cultural and religious entities within the state. He proposes well-considered, practical and stimulating suggestions for the possible solution of problems that are especially experienced in states that contain strong minority cultural groups. His description of politocracy, which amounts to actual democracy, deserves real and thorough consideration. – George Barrie, University of JohannesburgAbout the editor:Koos Malan Professor of Public Law, University of Pretoria and Advocate of the High Court of South Africa

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2012
• Nombre de lectures: 2
• EAN13: 9781920538101
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Politocracy An assessment of the coercive logic of the territorial state and ideas around a response to it

by

KOOS MALAN BA(Hons) (Pret) LLB LLD (Unisa) Professor of Public Law, University of Pretoria Advocate of the High Court of South Africa

Translated from the original Afrikaans by

JOHAN SCOTT BA(Hons) LLB (Pret) Dr Iur (Leyden) Professor of Private Law, University of Pretoria Advocate of the High Court of South Africa

2012

Politocracy: An assessment of the coercive logic of the territorial state and ideas around a response to it

Published by: Pretoria University Law Press — PULP The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as textbooks from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights, University of Pretoria

Artwork: The Corporalship of Frans Banning Cocq and Luitenant Willem van Ruytenburch preparing themselves, also known as ‘De Nagwacht’ (The Night Watch) by Rembrandt (1642)

ISBN: 978-1-920538-10-1

© 2012

THE W ORLD BANK Washington, D.C.

Politocracyforms part of the Rule of Law in Africa Project funded by the World Bank.

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FOREWORD

CONTENTS

A WORD OF THANKS

TRANSLATOR’S NOTE

STATISM

REPUBLICA CHRISTIANA— THE PREDECESSOR OF STATISM 1 Religious identity 2 Medieval constitutionalism

DECLINE AND PREPARATION: THE DEPARTURE OF THE REPUBLICA CHRISTIANA AND THE ADVENT OF STATISM 1 Secularisation, Renaissance and Humanism 2 Political and legal thought 3 State formation 4 Reformation 5 Impasse

THE FOUNDING AND FOUNDERS OF STATISM 1 ThePolitiques— Michel de l’Hôpital and Jean Bodin 2 Thomas Hobbes and the birth of Leviathan, the mortal god 3 John Locke, theconstitutionalcontinuation of Thomas Hobbes 4 Interstatism and Hugo Grotius

THE STATIST PARADIGM 1 The main markers of the statist paradigm 2 The dynamics of paradigms

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33 36 43 50 57

65 65

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STATIST IDENTITY: THE MORTAL GOD ACQUIRES A 127 CONGREGATION OF WORSHIPPERS —THE NATION 1 State building in the guise of nation building — 127 Hobbes, Rousseau and thereafter 2 The coercive logic of nation building 142 3 More subtle forms of nation building 153 4 Legal reasoning behind state-building 155 4.1 John Rawls 155 4.2 Nation-building jurisprudence, Ronald Dworkin 163 and legal principles

STATIST DEMOCRACY 1 Statist democracy — democracy tamed by the statist paradigm 2 Democracy as legitimacy fiction

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173 173

188

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Precariocracy and equality Massocracy — democracy of the territorial state

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HUMAN RIGHTS — THE CARING STATE 205 1 Symbiosis 205 2 Tracking the development of human rights 206 3 Statist-paradigmatic politics of human rights 215 3.1 The specific position of socio-economic rights 220 3.2 Horizontalism and the ideological turnabout of 222 human rights 3.3 The disharmony and suspicion of human rights 225 3.4 The statist order and the prominence of the 228 jurist class 3.5 Human rights, the source of an ideology of 233 dependence

TWO LEGAL SCENARIOS IN TERMS OF THE 237 STATIST PARADIGM 1 Introduction 237 2 The inviolability of the state: High treason 238 3 The inviolability of the state: (Territorial) statist 246 self-determination 3.1 History 249 3.2 Analysis 253 3.3 Statist versus national self-determination: the 261 domesticating concept of self-determination

POLITOCRACY 1 Introduction 2 Politocracy 2.1 Foundation 2.2 Explanation 2.2.1 The central significance of communities 2.2.2 Pluralistic public identities and spheres of government 2.2.3 Subsidiarity and Correction 3Res publica/Commonwealth 3.1 Characteristics of ares publica 3.2 Theresof the (res)publicae 4 Citizens —politai 4.1 Citizens versus individuals;res publicae versus the private domain 4.2 Citizenship 4.3 Civic equality 4.4 Scope

BIBLIOGRAPHY

TABLE OF CASES

INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS INDEX

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269 269 272 272 276 276 280

281 287 287 290 299 299

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FOREWORD

Nowadays one is confronted by a deluge of predictable and repetitive commentaries on so-called ‘good governance’ and state administration. Most of the thoughts expressed skim carelessly over the Western World’s age-old and captivating history — including a history of legal and political philosophy — and most contributions display one particular blindness: the assumption that the last few centuries have resulted in endowing civilisation with great ‘progress’. What can therefore be more important to the discerning reader than a volume that, with clear objectivity and striking insight, exposes deep-seated and ironic setbacks in the history of state government, particularly over the last few decades? Prof Koos Malan’s masterly and thorough analysis fills a glaring vacuum in available perspectives on traditions and practices of state government that affect all of our lives.

His work is guided by a core question — to what extent have peoples actually been liberated and empowered by reforms? Have the dark restrictions and forces of alienation, submission and servitude in the developed world really been buried in history, or have they merely been concealed by the respectable semblance of progress? While Professor Malan’s penetrating survey of government forms and public law systems, from the Middle Ages to the present era of human rights and the bureaucratically managed and caring state, does acknowledge progress, it also poses deeply disquieting questions. The Renaissance, the Reformation, the curtailment of the divine right of kings, the acknowledgement of free-flowing individualism and rippling-out principles of a social contract that establish a government aimed at protecting mutually hostile individuals against one another and against the authorities, have indeed dramatically benefited the human condition in many respects. Meanwhile, however, as clearly demonstrated by Professor Malan, a new and infinitely stronger, but veiled threat has hatched in the newly found freedoms. What was described by Thomas Hobbes as ‘Leviathan’ — the ‘mortal god’ — has relentlessly extended his reign. Whilst the power of kings and priests ultimately proved to be vulnerable and precarious, the ‘mortal god’ of the state has strengthened his hold within the domain of national sovereignty. Malan describes the way in which the ‘mortal god’ has filled his initial empty loneliness with grateful dependence, human rights and welfare. By employing the strategy of ‘nation building’, populations have been persuaded to praise the jealous god by accepting the homogeneous identity of the bureaucratic nation state. Within his fortress of internationally recognised and enforceable national frontiers and sovereign status, the nation state can maintain a kind, albeit unassailable, new absolutism, described by Malan as massocracy.

Is there a better choice at mankind’s disposal? To Malan’s mind there is indeed such a choice. He reaches far back into the past, to the Greek city stateinter aliain constructing part of the basis of an alternative model. Although he refrains from issuing constitutional

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directives, he provides the reader with a moving picture of humankind reaching its full potential, within the ‘habitative’ communities that are able to restore the principle of mutual justifiability. This sagacious work, appearing under the titlePolitocracy: An assessment of the coercive logic of the territorial state and ideas around a response to it, deserves our close attention.

Lawrence Schlemmer

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A WORD OF THANKS

I trust thatPolitocracy: An assessment of the coercive logic of the territorial state and ideas around a response to it will kindle some interest and debate among those taking a critical interest in the dynamic interplay between the modern state — including the South African state — and communities. It targets experts in law, political science, history and various social sciences, as well as all those who are interested in the historical and politico-philosophical background of the modern territorial state and in legally accounting for the claims of cultural and linguistic communities in particular, in the modern political era.

Naturally, the publication of this book caused me great pleasure. At the same time, I should add that the book is the product of a recurring fortunate combination of circumstances without which its publication would have been impossible. I am indeed fortunate to have been exposed to the knowledge and insight of a great number of people over many years. There are many of them — friends, acquaintances, colleagues, lecturers etc. Yet, one person in particular deserves specific mention — Danie Goosen — from whose extensive knowledge and formidable discernment I have profited over an extended period of decades. I have been equally fortunate over the years to have been exposed to great scholars of and commentators on the Western political and legal tradition. It is only fitting to recall that it would not have been possible to write a work of this nature without a sound and thankful exposure to this tradition. I find great pleasure in also thanking my colleagues in the Faculty of Law at the University of Pretoria — especially in the Department of Public Law — who have collectively contributed to a pleasant and intellectually stimulating work environment.

Originally, before it was adjusted in various ways and considerably augmented, this work had been a doctoral thesis completed under the able supervision of Professors Adrienne van Blerk of the Department of Jurisprudence at the University of South Africa and Hennie Strydom, at the time attached to the University of the Orange Free State.

Various persons, especially Johan Scott and Johan Kok, meticulously scrutinised the original Afrikaans manuscript. My sincere thanks is due to Johan Scott who, in translating this book into English, exceeded the degree of skill and care of thediligens paterfamilias and to Henda Scott who admirably succeeded in linguistically editing the completed manuscript in record time. I do not thank them only for their work in respect of this book as such, but for the close ties of friendship that we have forged. My heartfelt gratitude is also due to Lizette Hermann of Pretoria University Law Press (PULP) for her patient and meticulous finalising of the manuscript, as well as Yolanda Booyzen for the cover design. Juanita Larkin, the departmental administrator of the Department of Public Law, also

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deserves exceptional gratitude administrative assistance.

Koos Malan March 2012

for

Dedicated to

Manie Malan

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and ZB du Toit (posthumously)

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able

and

efficient

TRANSLATOR’S NOTE

Translating this admirable work into English in certain respects proved to be more taxing than undertaking a translation in respect of a more ‘orthodox’ academic textbook. The mere title of the Afrikaans work — ‘Politokrasie’ — is a creation of its author. No Afrikaans dictionary or thesaurus contains any reference to it and therefore from the outset one can lay aside any general or technical bilingual (Afrikaans- English) dictionary in your quest for a suitable English equivalent. Some would view this type of dilemma as a translator’s nightmare, but to my mind it should rather be approached as an interesting challenge — a challenge to employ one’s innate and acquired creative powers to produce a genuine English equivalent of the notional content of the product of a truly creative author’s innovative abilities. What finally transformed this process into a translator’s dream, was the close cooperation that existed between author and translator from the outset, enabling the latter to find satisfaction in the knowledge that the final, translated words conformed to the original meanings intended by the former as closely as possible.

A few words regarding the translations of some of these ‘newly created’ words could contribute significantly to dispel some uncertainties. A selection of these terms, accompanied by brief explanatory notes and references to the text of the work, will therefore now be produced (not in alphabetical order, but in order of their first appearance in the text; the Afrikaans equivalents are reproduced in brackets).

Politocracy (politokrasie):

Statism (staatlikheid):

Statist (staatlike):

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See 10 below. See 1-2 below.

The author applies this term to refer to ‘an attractive space beyond the straits of the territorial state ... a 1 legal-political order’ which in fact embodies true democracy.

This term denotes state ideology, referring firstly to the almost universal modern premise that the state is the main determinant of the public identity of individuals and secondly to the rules laid down for the scientific study in accordance with the needs of the state and for the sake of preserving the present 2 state order.

The adjective derived from the noun ‘statism’. The recognised adjective ‘state’ (e.g. in state population) is derived from the noun ‘state’ and

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therefore does not convey the same meaning as ‘statist’. Solfidianism (solfidianisme): In terms of the Lutheran doctrine of solfidianism ‘salvation could only be achieved through faith —sola fide— 3 and by the grace of God’. These two Latin words form the basis of this theological term. Precariocracy (prekariokrasieAfrikaans version of this term is): The based on the property-law concept of ‘prekaris’, which is the term for a holder at will and a derivative of the Latin ‘precarium tenens’, the technical term for a holder at will (holder on sufferance/precarious holder). My English equivalent of ‘precariocracy’ is thus soundly based in the applicable Latin terminology, to convey the meaning of a statist dispensation where the majority holds sway — like an owner of movables who allows another (the precarium tenens) to hold or control such owner’s movable property, subject to the owner’s right to terminate such control at will and at any time — over the (or a) minority — the equivalent of the holder at will (precarium tenens) — where such minority is entirely at the mercy of the majority for purposes of 4 exercising their political rights. Massocracy (massokrasie): This term refers to the ‘democracy of 5 the territorial state’ or nation state that maintains a ‘kind, albeit 6 unassailable new absolutism’ in which the ‘unstable, atomised and heterogeneous masses who are avidly engaged in realising their own interests in themegalopolis(the large territorial state), has replaced the (ethnically) homogeneous organic- 7 holisticdemos.’ Juridification (juridifisering): A process that occurs in the statist order with its rights-inspired society, according to which ‘[m]any prob-

3 4 5 6 7

See 53 below. See 195 below. See 197 below. See v above. See 201 below.

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Habitative community/ies (tuistelike gemeenskap/pe):

Idiotocracy (idiotokrasie):

lems, including the most important public issues, are ... being defined and redefined and classified ... as issues of a legal nature, in order to fall within the operational domain 8 and under the control of jurists’.

The concept of a habitative community is one of the most funda- mental concepts of politocracy. ‘It is so important that it would always dominate any discussion on polito- cracy. Habitative communities refer to the cultural and/or local communities in which people live 9 their daily lives.’ I thought it best to construct this rather quaint term from the Latin noun ‘habitatio’, meaning ‘abode’ or ‘dwelling’, viz the smallest possible communal unit to which a politico-constitutional significance can be attributed.

This term is derived from the Greek word ‘idiotos’, the Greek designation of a person who showed no interest in the affairs of the city state (the polis). The author employs the term to denote a system that runs counter to his preferred system of politocracy — namely where the bestowal of ‘any measure of authority over the commonwealth on ... nonchalant and ignorant persons [i.e. those who never display any kind of interest in public affairs and are quite happy and content to be active only in the private domain]’ takes place, ‘for by such action the doleful antithesis of 10 politocracy ... would be promoted.’

Having substantiated the translations of some of the terms employed by Professor Malan, I sincerely hope that the chosen English equivalents of the products of his creative powers will contribute to a better understanding of the ideas expressed by this innovative and unconventional author. Afrikaans — one of South Africa’s eleven official languages — is an indigenous language of the African sub- continent that has mainly developed from Dutch and in its written form would nowadays probably be understood abroad by most Dutch- speaking readers in the Netherlands and Belgium. It is, however,

8 See 228 - 229 below. 9 See 273 below. 10 See 304 in text and n 15.

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