The price of freedom is eternal vigilance.” — John Philpot Curran (1750-1817), lawyer and statesman who championed Irish liberties. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” — James Madison, the fourth president of the United States from 1809 to 1817.
How to balance individual liberty with the common good is an age-old debate. Which takes primacy over the other and when? What is the role of government? Is it to regulate aspects of our common life or to be minimalist in nature? In an ever-interconnected world, the notion of a nation-state has been seen to be increasingly less significant as the world becomes more globalised. In the current circumstances, China sneezed and the rest of the world caught a very bad cold.
Let me deal with the James Madison quotation first.
As we know, the government is not run by angels. History is replete with examples of the governed needing to keep the government in check. Philosopher Thomas Hobbes advocated that any government (good or bad) was preferable to no government at all.
This argument has lost popularity over the centuries and the idea that there is a social contract between the government and citizens that allows for citizens to replace bad rulers gained traction.
This is where John Philpot Curran’s quotation comes in: We must, at all times, be vigilant to ensure that our freedoms are safeguarded and not trampled on.
How does one do this within the context of the common good? First it is necessary to define what the common good is and then we need to answer the question: Who determines what it is?
The common good is generally understood to be the benefit or interests of all. It is often, perhaps erroneously, juxtaposed against the rights of individuals. So, for example, what might not necessarily be in the interests of an individual may be in the interests of the community.
The tendency in recent history is to assume that what is in the interest of the individual will of necessity be in the interests of the community as a whole. Certainly, in Western-style democracies, like the United States, we have seen the rise of individualism triumph over more communitarian societies, although there are some notable examples in Europe where social democracies (and their attendant welfare policies) have a more communitarian bent.
Who determines what the common good is and how they do it has been the source of some debate. When the international system was dominated by nationalism, it was largely left up to states themselves. Therefore, the common good, national interest and the interests of government often coincidentally coincided with each other.
This notion that government determines the common good has been challenged by the rise of social and global movements. Perhaps the most obvious would be the environmental lobby that has moved from the fringes of politics towards the centre.
It is not just governments who determine what the common good is, but rather governments and collectives of people and groups — often with competing ideas.
The almost mechanical calculations of utilitarianist notions of the common good have been softened by the idea of minority rights and individual rights. There has been recognition that the common good is a complex interplay of a variety of factors.
In South Africa, we have a constitutional democracy. Our social compact was created out of the negotiated settlement of the early 1990s. The final Constitution specifically grants individual rights to people in the Bill of Rights. But these rights are limited by Section 36, which states:
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
(a) The nature of the right;
(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The relation between the limitation and its purpose; and
(e) Less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
In this clause is embedded the idea that individual rights are not absolute and that in some instances (where it is reasonable and justifiable) it may be necessary to curb these rights.
Thus far, I think that few people would argue that the lockdown of South Africa, announced by the president on March 23 was not in the common good. Given the trajectory of Covid-19 in other countries and with the number of confirmed cases rising exponentially, drastic action was required.
The country has gone into lockdown and people’s rights to free movement and association have temporarily been suspended. The steps announced are both reasonable and justifiable given the potential loss of life, the potential negative effect on the already strained health system and on the economy.
“The price of freedom is eternal vigilance.”
We must not, however, become complacent. The nature and the extent of the limitation must only be until the threat to people’s lives, the health system and the economy have passed. This cannot be indefinite nor the “new normal”.
The same applies to the deployment of the South African National Defence Force in support of the police. We must be wary of the militarisation of a non-military public health issue.
I am not imputing nefarious intent on behalf of the government, nor am I suggesting that a return to the draconian days of the 1980s is imminent. What I do suggest is that throughout this crisis we ensure that our government follows due process as it suspends our civil liberties. We cannot afford to set a precedent that our leaders can take advantage of in times to come.
Let us be grateful that we have a government courageous enough to do what it has done, but let us be vigilant at the same time.
Felicity Harrison is the head of the Sustained Dialogues Programme at the Institute for Justice and Reconciliation
Article first published on Mail & Guardian