Introduction
This is yet another comment partially inspired by Tshwane v AfriForum, the case about street names. In this brief, I consider the suggestion by my colleague Piet Olivier that the Constitution does not recognise a separate, distinct ‘right based on a sense of belonging to the place where one lives, rooted in its particular history’.
Admittedly, this was not central to his argument, but it deserves consideration, for it is an important issue and I am not sure that his suggestion is correct. Indeed, I think that we can locate this right in section 20 of the Constitution, that is, the right not to be deprived of citizenship. To understand why, we must begin by exploring an aspect of the nature of all political forms of rule.
We, the people
A feature that is common to all forms of political rule—as opposed to coercion, manipulation or domination—is that they have their genesis, their wellspring, in a sense of common identity. For it to exist, there must be some kind of relation of belonging; or, as the Constitution puts it, a commitment to the idea that we are united in our diversity. For interaction to be political there must be a shared sense that despite the disagreement or conflict that characterises the interaction of persons, they are acting in their capacity as ‘We, the people’.
Further, like individuals, who can only be autonomous if they at a given moment have a unified sense of self, ‘I’, political norms like law can only be created if a group has a sense of collective identity, ‘We’. The first-person plural, ‘We’, therefore, is the starting point of any political norm-creating process. It is necessary condition for a legal system to exist at all. [1]
The necessity of this shared identity is not only reflected in the recent theoretical emphasis on legal and constitutional pluralism, it is also borne out in practice. It is, for example, illustrated by the Constitution’s differential treatment of international and foreign law. Unlike customary international law or orders emanating from the UN’s Security Council, foreign law does not bind the state, its organs or its citizens. If the Security Council threatened South Africa with force should we not comply with a command, subsequent compliance would be conformity with law; but, if Russia, China or the USA were to threaten us in this way, subsequent compliance would be no more than submission to a coercive, un-lawful threat.
The difference between these commands lies not just in their sources, but in our understanding of them. In the case of the Security Council and customary international law, whilst the command is not issued by an institution created by the Constitution, we consider rules that emanate from these sources as belonging to us. Our identity as a community is bound up with our membership of the ‘family of nations’, which family can in different ways create legal rules that bind us.
Much like HLA Hart’s famous distinction between the taxman and gunman, what distinguishes the UN from the foreign invader is the standpoint we adopt in relation to the issuer of each command. In the case of the UN and taxman, but not the invader and gunman, we see their commands as our commands—as the commands of ‘We, the people’. It is because these commands are thought to belong to us, as South Africans, that they exert normative force on us as laws.
Outlawry
This may be true, but what does it have to do with citizenship and my claim that we have a right to a sense of belonging? To explain, I must touch on a somewhat out of fashion concept.
Historically, if a member of a political community behaved in a sufficiently reprehensible way, they could be declared outlaws. By acting as they did, they literally placed themselves outside-of-the-law. Their actions evidenced that they did not consider themselves to be a part of the community; or their actions were such that the community itself no longer recognised them as a member. As a result, the legal relationship that previously bound them together with others and with the community was severed. They were stripped of legal personality. [2]
This did not mean outlaws would avoid the enforcement of a community’s laws. Rather, in facing the consequences of their actions—in being subjected to laws, but not a subject of the community—the laws enforced against them were not their laws.
It is hopefully becoming clearer why the right not to be deprived of citizenship grounds a right to a sense of belonging. But, we are not quite there yet.
The right to a sense of belonging
So far, I have argued for the following:
1. A political community and its attendant legal system can only ever exist if people share an identity: ‘We, the people’.
2. For such an identity to exist there must be mutual recognition amongst a plurality of persons of each other’s membership of this community.
3. Where the community or its rulers treat a person or a group in a way that is inconsistent with this requirement of mutual recognition, the person or group is essentially rendered an outlaw, i.e. they are no longer treated as members of the community. In other words, in the absence of this mutual recognition, they are deprived of citizenship.
If this recognition is necessary for a person to have citizenship, and if we may not be deprived of citizenship, the following question is then relevant: ‘What must individual citizens and the state do to ensure that others are recognised in this way?’
To answer this question, it must be understood that recognition is both external and internal. Others have to recognise us as members of the community (external), and we must also identify ourselves as such (internal).
Both aspects of recognition can emerge for various reasons. They can be grounded in the belief in the value of a basic law; in myth, religion, tradition, custom, habit, language, triumph over an oppressor, or shared experience of a wrong; or, more likely, in a combination of these and other contingent facts. In short, this kind of recognition must be subjectively imagined by persons. [3]
The reasons for which people imagine themselves to be part of a community need not be identical. Apart from a commitment to the foundational values of the Constitution—to respecting the humanity of others—it is sufficient if there is a ‘family resemblance’, that is, a series of not fully overlapping reasons for identifying oneself as a citizen. So, it is likely that some of my reasons for thinking that I am a citizen differ from the reasons of many AfriForum or EFF members, but this does not mean that we cannot and do not see each other and ourselves as citizens of the same community.
Now to conclude: If a sense of belonging to the place where one lives, rooted in its particular history, happens to be critical to one’s identification as a citizen, other citizens and the state do have a prima facie duty not to threaten the existence of this sense of belonging. Why? Because doing so would threaten the rights of others not to be deprived of citizenship. And, since rights typically correspond with duties, people can have a prima facie right to a sense of belonging to the place where they live, rooted in its particular history.
Such is my argument.
But, I want to add an important proviso. Froneman and Cameron JJ note in their minority judgment in Tshwane v AfriForum that the Constitution protects culture, not racism.
This is certainly right. Similarly, any reason for identifying as a citizen that is grounded in racism is not protected by the right not to be deprived of citizenship. More broadly, nor is any reason protected that is inconsistent with the recognition of others as free and equal bearers of dignity. This is because the existence of any political community rests on this recognition of others as human.
So, whilst the requirement of mutual recognition does not necessitate any particular set of reasons for identifying oneself as a citizen, conceptually-speaking not all reasons are legitimate.
Street names: a negative and positive duty
Practically, what does this all mean going forward?
In the long run, we must develop a rich understanding of the various ways in which individuals and groups can legitimately identify as South African. Once we do, we must encourage the expression of these various conceptions of citizenship.
More immediately, the state must respect and protect any group’s legitimate sense of belonging. But, the state also has a positive duty to promote and to fulfil this sense of belonging for people who have historically been and still are excluded from equal participation in the public realm. It must do this for all our many groups, ensuring that each can have this sense of belonging, both in their immediate communities and throughout South Africa.
So, to return to the case that has caused so much controversy, the state in fact does have a duty, after adequate public participation, to rename certain streets. It has this duty for at least two reasons. First, it must rid our public spaces of names that function primarily to glorify or to signal appreciation for persons who, both in fact and in memory, exist as the architects, generals and soldiers of apartheid—that is, a crime the essence of which entailed the systematic denial of the humanity of others. Second, and more constructively, the naming and renaming of streets is necessary as a way of acknowledging, commemorating and celebrating the histories and the cultures of our many communities.
For these reasons, and more, we must be wary of those who would distort the principles of tolerance and diversity for the sake of protecting action and architecture that in essence denies the humanity of others. In a sad effort to summon all sorts of spectres, some might accuse us of ‘liberal slideaway’. But, they are mistaken. It is not us who slide, but they who slither.
Only if we do all of this, cognisant of Langa CJ’s observation that the display of human difference in public is not a parade of the horribles but a pageant of diversity, can we comprehensively unite in our diversity as ‘We, the people of South Africa’.
Matthew Kruger
Legal Researcher
matthew@hsf.org.za
Notes
[1] Lest I be accused of idiosyncrasy, it is worth noting that this idea is supported across the metaphysical and ideological divides. For examples, see Aristotle ‘Politics’ at 1276b1-5 and ‘Nicomachean Ethics’ at 1129b26-1130a13; Immanuel Kant ‘Toward Perpetual Peace’ in Mary McGregor (tr) Practical Philosophy (1996) 318; Edmund Burke Reflections on the Revolutions in France and Other Writings (2015) 475-6; Alexander Nehamas Nietzsche: Life as Literature (2002) 181-2; Franz Fanon The Wretched of the Earth (2001) 119-65; Hannah Arendt ‘Willing’ in Mary McCarthy (ed) The Life of the Mind (1981) 202; Simone Chambers ‘Democracy, Popular Sovereignty and Constitutional Legitimacy’ (2004) 11 Constellations 153; Richard Ekins ‘How to Be a Free People’ (2013) American Journal of Jurisprudence 163-82; Roger Scruton The Soul of the World (2014) 98 and How to be a Conservative (2014) (‘Scruton II’ ) 22-5; Leif Wenar Blood Oil: Tyrants, Violence, and the Rules that Run the World (2016) 180-6.
[2] On outlawry, see Frederick Pollock & Frederic William Maitland The History of English Law before the Time of Edward I (1968) 501-6.
[3] As should hopefully be clear, the argument does not assume an ‘ethical republicanism’, where politics is characterised by a ‘substantively integrated ethical community’ (Jürgen Habermas ‘Three Normative Models of Democracy’ (1994) Constellations at 4). Whilst recognition of others’ humanity is necessary, I think it is too strong to insist on a ‘priority of . . . loyalty, of care, of friendship’ (Stu Woolman ‘On the reciprocal relationship between the rule of law and civil society’ in Alistair Price and Michael Bishop (eds) A Transformative Justice: Essays in Honour of Pius Langa (2015) 398). The ‘We’ necessary for politics and law to exist must form ‘for some reason’ (Arendt ibid at 202), but it need not form for these reasons. It must just be ‘imagined’ (Scruton II ibid at 23), and can form for a varied combination of reasons (Samuel P. Huntington ‘The Clash of Civilizations’ (1993) Foreign Affairs 23-5.)
