The Mandate of Dignity: Ronald Dworkin, Revolutionary Constitutionalism, and the Claims of Justice

Introduction

We live in a world in which the revolutionary overthrow of governments is part of our day-to-day lives. The question of whether and how it is possible for these uprisings to result in stable constitutional government, at once subject to the rule of law and capable of delivering the radical social change they promise, has never been more pressing. Once a government has been overthrown, how does one replace it, and what should be its shape? One of the big questions that have haunted the twentieth-century history of revolution is whether the process of constituting a revolutionary government should ultimately yield a constitution. If so, what kind of constitution must it be, and how can that constitution keep alive the revolutionary power of the people who put it in place?

Precisely these questions of revolution and constitutionalism were on the agenda in South Africa in 1990, the year in which the African National Congress (ANC) was unbanned and entered into negotiations with the regime of the day to bring an end to apartheid. South Africa is sometimes described as having undergone a peaceful transition from an oppressive regime to democratic, constitutional governance, but anyone who is familiar with either South Africa’s past or its present will understand the inaccuracy of that characterization. While it was indeed the case that South Africa’s first general elections in 1994 were mostly (though not entirely) free of political violence, those elections were preceded by decades of sustained, intensely violent and indeed revolutionary armed struggle. Furthermore, while South Africa today continues to hold elections which are universally recognized as free and fair, and while the government continues to abide by the country’s much lauded Constitution, the twenty years that have passed since the new government came to power have not been free of controversy. Corruption is endemic and goes largely unpunished, while service delivery to millions of poor South Africans remains unacceptably ineffective. In recent years, the government has made gestures toward curtailing the freedom of the press and the independence of the judiciary. Now, in the wake of the internationally condemned massacre of striking mineworkers by police at Marikana in 2012, the government is increasingly seen as being at war with its own people. Perhaps most worryingly, the integrity of the Constitution itself has come under attack, as part of a smokescreen deployed by the government and various interest groups who seek to cast the Constitution as an obstacle to, rather than a condition of, the redistribution of wealth, which the country so desperately needs. Of course, those who oppose redistribution like to blame the Constitution too.

And so it is that even in South Africa, which has generally been held up by the international community as a poster child of transitional justice, the very possibility of establishing a revolutionary, constitutional government remains a live question.

Importantly, as Emeritus Justice Albie Sachs has argued, the ANC has been committed to constitutionalism since its inception. This commitment is evinced not only by its attempt to legalize a moral code of conduct for the armed struggle itself, but also by its adoption of a Freedom Charter in 1955, which laid a foundation for much of what exists today in the form of the South African Constitution. Thus, the questions of revolutionary government in South Africa were answered by a rejection of a dictatorship of the proletariat (and with it, the idea of one-party rule through the institutionalization of control over the economy through the executive power of the Communist Party), in favor of a dispensation based on a multiparty system of constitutional democracy.

Of course, South Africa is not alone in its rejection of some of the central ideas of the Third International. Indeed, many African national and socialist revolutions developed other ideas of how socialism might become a reality through rich engagements with the philosophical heritage of African humanism. For our purposes here, we want to stress that South Africa remains unique in having undergone what should be understood as a substantive revolution, a phrase originally coined by Hans Kelsen. This type of revolution is not one that simply erases all law on the books, fires or imprisons current bureaucrats, and begins a completely new day. Instead, a substantive revolution is characterized by the reigning government—through its own laws (the existence of which survives the regime change)—removing itself from power either into a situation of negotiations (as was the case in South Africa) or conceding to the right of other parties to form a new government. A further aspect of a substantive revolution is that the new government itself will represent a complete ethical transformation of all the social relations of the previous dispensation. The substance of such a revolution is therefore inherently ethical.

In the case of South Africa this ethical transformation is embodied in the preamble of the Constitution. As it was stated by Mahomed DP in S v. Makwanyane:

In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.¹

The Constitution therefore posits that the new dispensation had to move away from the horrors of apartheid toward not just a new legal order, but a new social order based on dignity, equality, and freedom. It is this ideal which embodies both the fragility and the importance of this effort, in that the struggle to transform a society—and to expropriate a certain amount of property to the black majority—must be done within the framework of the Constitution, which embodies the ideals of ethical transformation. In that sense, the substantive revolution in South Africa is one in which constituting a revolutionary government must also involve a commitment to constitutionalism. This has been and will remain a controversial project for that reason.

Let us be clear that a substantive revolution does not involve any one way in which power can be transformed away from a colonial government. It does not need to have involved the kind of negotiations for which the ANC opted in the Convention for a Democratic South Africa (CODESA). It could easily, for example, have followed the program of Chris Hani, which called for a referendum of the National Party that would give the black majority the vote, and that would allow the black majority to elect a constitutional assembly directly. Hani’s argument was that this would have made it possible for the black majority to take power into their own hands as people’s power, and to avoid the economic compromises that were undoubtedly made behind the scenes during the political negotiations over the Interim Constitution (IC).

We underscore this point because a substantive revolution, although it can take many forms, differs from what Hans Kelsen calls a procedural revolution, in that it moves within a democratic or lawful process, rather than through the total seizure of state power through the victory of the armed struggle. We all have visions of what a full procedural revolution is—it is, for example, Fidel Castro and Che Guevara marching victorious into the streets of Havana and disbanding the government of the day. In procedural revolutions, the day after tomorrow leaves nothing in place of the old order.

To have this kind of procedural revolution it must of course be possible to actually win the revolutionary armed struggle. In South Africa, however, it became clear, not only to the ANC but to many other liberation movements throughout the world, that a victory of this kind was becoming an increasingly remote possibility, as both the Soviet Union and China refused to continue to arm struggles in South America and Africa. Without the arms to defeat the ruling class, such armed struggles turn into a perpetual war zone (such as in Palestine) rather than one that can lead to the constituting of a substantive revolution. If the war cannot be won, and in South Africa it could not have been, then we must either embrace a substantive revolution or settle for the possibility of a worse outcome.

We want to make two points here. The first is that the ability to have a full procedural revolution in Kelsen’s sense has become more and more difficult in today’s world, and therefore successful revolutions are likely to take place more along the lines of continual struggle and transformation, rather than as one glorious event in which the government and the state is seized. The second is that there are profoundly important reasons to support constitutionalism as crucial to the constituting of a revolutionary government. Of course, there are many forms of constitutionalism, and we are well aware that a constitution that seeks to actualize decolonization would have to be substantially different to any Euro-modern model. To some degree, the thinking of how constitutionalism must be creolized—to use the telling phrase developed by the Caribbean Philosophical Association—is beyond the scope of this book. But the defense of what we call big picture constitutionalism, as part and parcel of a revolutionary government, is at the heart of the book’s project.

The debate about constitutionalism and the protection of democratic rights goes back to the one between Rosa Luxemburg and Vladimir Lenin after the seizure of state power by the Bolsheviks in 1917, when the soldiers joined with the workers and the Winter Palace was stormed and held. No one quite expected that moment to happen, including Lenin himself; but as Luxemburg always emphasizes, the masses of people are always way ahead of the intellectuals in any revolutionary party.

Once power is seized, however, the job of the party is to consolidate that power. For Luxemburg, that consolidation has to be as democratic as possible. Luxemburg famously argued that what we today know about socialism is merely a series of negative decrees that—while taken to set the basis for a socialist economy and more importantly a socialist society—could never be enough on their own to bring about true democracy and a total transformation of economic and social relations. To quote Luxemburg:

[W]e know more or less what we must eliminate at the outset in order to free the road for a socialist economy. But when it comes to the nature of the thousand concrete, practical measures, large and small, necessary to introduce socialist principles into economy, law, and all social relationships, there is no key in any socialist party program or textbook. . . . [I]f such is the case, then it is clear that socialism by its very nature cannot be decreed or introduced by ukase [a proclamation of the Czar having the force of law in imperial Russia]. . . . Only experience is capable of correcting and opening new ways. . . . The public life of countries with limited freedom is so poverty-stricken, so miserable, so rigid, so unfruitful, precisely because, through the exclusion of democracy, it cuts of the living sources of all spiritual riches and progress.²

Luxemburg hailed the Russian revolution as giving honor back to the democratic socialist movement that had capitulated to the imperialist horrors of World War I. Her fundamental criticism of Lenin, however, was that he sought to make necessity into a virtue. Lenin was of course up against a vicious attack from all the forces of the capitalist world, and was also faced with the prospect of massive starvation within the borders of the new Soviet Union. Luxemburg, for her part, was well aware that measures had to be taken against the ruling class, including their disenfranchisement, at least for a period of time. But her argument was that socialism is not about a simple set of negative decrees that can be reduced to formula. Rather, it is about the complete transformation of social relations between human beings, and that therefore the broadest protection of fundamental human rights is mandatory.

For Luxemburg, then, it was only through the promotion of radical forms of participatory democracy that we could begin to turn the hazy dream of a transformed society into a daily lived reality. To do that we needed as much democracy as possible, forms of democracy that are barely imaginable under capitalist exploitation. But she also believed that their protection as rights, particularly in the kind of emergency situation that Lenin faced, was crucial to keeping alive the transformative project, even under conditions of the worst emergency. Thus the process of constituting a revolutionary government would involve constitutional protection of those basic rights as absolutely necessary to the development of the fullest form of democracy human beings had ever imagined.

For her, interestingly, the notion of the dictatorship of the proletariat was not against democracy; it was merely one form democracy could take, because the proletariat with the peasants formed the vast majority of the people. Therefore it was a mistake to take the dictatorship of the proletariat and oppose it to democracy. It was meant to be the furthest reaches of democracy developed by the creative initiative of the masses of people in revolutionary struggle. But Luxemburg’s attempt to reconcile the dictatorship of the proletariat with the new experimental forms of democracy and the basic protections of human rights was not how the dictatorship of the proletariat came to be understood by the Third International. It degenerated into the dictatorship of the Communist Party, who ruled according to the truth of dialectical materialism. Although a detailed discussion is beyond the scope of this book, it is worth noting that many of the revolutions in Africa broke with that view of the Third International, trying out a number of experiments in the mobilization of democratic ideals and new forms of democracy.

We have set out this relatively lengthy introduction on revolutions to provide context for the complexity and uniqueness of the South African constitutional project. World history thus far has provided us with a deeply depressing dichotomy for structuring our societies: either we must embrace neoliberal capitalism and the strong but narrow conception of the rule of law it employs to protect private property and the free flow of money; or we must for this reason reject the rule of law and pursue a transformation of social relationships that never materializes and results instead in the kind of totalitarianism and crony capitalism that Luxemburg so presciently predicted would befall the Soviet Union.

South Africa’s transformative constitutional project is important and interesting precisely because it offers us an example of a possible way out of this dichotomy: a chance to achieve justice in our social relations not in spite of the law, but through the law. Indeed, we would not be writing this book if we did not believe that it was possible to work within the constitutional framework to reform it, to push it to the left, and to develop a jurisprudence that would allow for sweeping economic reform. There are those on the so-called radical Left who reject the Constitution because, at best, they subscribe to a bankrupt Leninist interpretation of Marx, or at worst, they perceive the Constitution as a convenient scapegoat in