Visions of Radical Reform in South Africa: Toward a New Constitutional Economy

Dennis Davis, William E. Forbath, Lucie E. White & Julia Dehm –

This is the first post in a two-part series about law and political economy in the South African context. The second post can be found here. The series reports on a collaboration among leading ‘heterodox’ economists, left-wing sociologists, high level government policymakers, and legal scholars, advocates and activists aimed at “thinking large” about reconstructing the nation’s political economy.

Law and Political Economy is about rekindling radical political economy for the twenty-first century, understanding law’s part in today’s political-economic order and imagining how law may figure in its transformation. While most of the posts on this blog have focused on the domestic U.S. context, law and political economy is a global project. Nowhere is this project more urgent than in South Africa.

It goes without saying that great economic inequality is a longstanding legacy of apartheid.  But Jacob Zuma’s tenure as President has been branded a period of “state capture”; key democratic institutions were hollowed out and repurposed for private enrichment.  So, the present crisis is marked by deepening class antagonism, an ever-growing distrust toward government and political elites, and mounting rage and despair among the poor black majority.  Many distrust the possibilities of democratic politics to make good on the egalitarian promises of the nation’s twenty-one year old Constitution, and the most thoughtful observers of and participants in the nation’s public life doubt that its democratic institutions can endure without radical reform.  Yet, as Cyril Ramaphosa begins his tenure as President, there are some glimmers of hope.

Last May, the four of us invited a group of South Africa’s leading “heterodox” economists, left-wing sociologists and high-level government policymakers, together with prominent social and economic rights advocates, legal scholars and community activists to begin a collaboration in “thinking large” about reconstructing the nation’s political economy.

In this first part of a two-part series, we will briefly sketch the thinking that prompted this effort, and a few initial ideas for institutional reform that have begun to emerge from it. In the second part of this series, we will outline some of visions of redistribution that emerged from our conversation. A longer account of our conversation can be found in a White Paper we prepared for the Open Society Foundation.

The Present Crisis

Our thinking started with a sense of democratic crisis, alongside the fact that much of the South African Constitution’s transformative vision – of egalitarianism, economic and social rights, redistribution and restitution – seems as remote as ever. South Africa has undertaken a social grants program to alleviate extreme poverty, as large as any the world has seen. It has made major leaps in employment.  But the leaps fall far short of the nation’s population growth. And South Africa, despite its enormous wealth, remains one of the most economically unequal and divided countries, with mass joblessness and underemployment, enormous shortfalls in basic education, levels of economic inequality higher than in 1994 and tepid levels of economic growth.

The growth of the black middle class and the emergence of a new black professional class and a wealthy black economic elite: all have unfolded alongside continued dispossession and deprivation for a majority of black South Africans. These inequalities remain engrained in structures of economic and social life inherited from Apartheid.

Yet, these structures are ones that the Constitution itself, at least in its aspirational language and its promises of social and economic rights, seems to condemn.  They are structures of profoundly unequal wealth, power and opportunity that repeated programmatic statements and grand policy initiatives of the ANC also have promised to upend.

A New Constitutional Political Economy?

Alongside these grand policy initiatives, there continue to be great investments of hope, resources and formidable legal talent in the sphere of constitutional social and economic rights litigation and advocacy.  Yet, the transformative potential of both the lawyering and the grand policies has come to seem blocked, constrained and stymied – by the politics of corruption, cronyism and “state capture,” by the limitations of current judicial doctrine, and by the broader constraints, both real and imagined, of market “imperatives” and fiscal “responsibility.”

So, there seems a concurrent need to rethink national strategies of inclusive, equitable development and to rethink strategies of social and economic rights’ “progressive realization” within the Constitutional framework. (As Judge Davis has written elsewhere, progressive realization refers to the idea that the “essential obligation of the state . . . [is] to …devis[e] measures and policies that . . . lead, progressively, to the realization of the [social or economic] right in question.”). Our wager was that one fruitful exercise for getting beyond this impasse would be to begin considering what kinds of political-economic arrangements and institutional reforms the Constitution may demand and depend on to bring its social democratic and egalitarian aspirations down to earth.

This calls for “reading” the Constitution not just as text and doctrine, but also as an articulation of the values and principles through which South Africans aspire to constitute themselves as a polity and society. Such a thick conception of constitutional identity has been and still remains active in South African politics, for the time being at least. This notion of the Constitution as a project of social justice has shaped the nation’s legislative practices and conventions as well as its judicial lawmaking.  In South Africa – again, for the time being –  it remains meaningful to consider the constitutional project as an economic and social as well as a legal and political challenge, and to envision the “progressive realization” of social and economic rights entrenched in South African jurisprudence not only as a legal question but also as one of economic design. And for that, it seemed essential to begin a sustained exchange of ideas between legal and constitutional thinkers and advocates and boldly heterodox economists.

To make the two days of talks and exchanges last May as candid and freewheeling as possible, participants agreed to observe “Chatham House rules.”  Thus, information and ideas were deemed open for common use and reporting, but not the sources or identity of speakers. So, in what follows we frequently make mention of what one or more “participants” discussed, observed or had to say, but never in a fashion that identifies who they were.   A list of participants is found in the White Paper’s Appendix.

Deep Reform? Grounds for Despair and Hope

One cleavage that ran through many of these initial conversations, as it does throughout current thinking on the left in South Africa, was disagreement about the capacity of national institutions for deep reform. Some thought only deepening crisis, upheaval and violent rupture would open space for any serious redistribution of wealth and social and economic power. Others demurred, insisting that betting on deep reform remains a responsible wager. “Peaceful revolution” captures the combination of non-violent mobilization and mass action, and iterative, deepening redistributive reforms, that embodies what all agreed would be the best way out of the present impasse – however, long a wager that outcome may be.

Most daunting, perhaps, is the problem of undertaking radical institutional renovation and redistribution in a landscape of public and private institutions “captured” by powerful, self-aggrandizing oligarchs – a landscape where government and administration are entangled with an informal system of patronage, rent-seeking and violence. Renovation and redistribution demand a fine balance of state accountability and state autonomy. How do that in the context of state capture?

Part of this party of hope’s answer was that South Africa, despite its grave problems, continues to have a robust social movement culture. It also has a remarkable complement of gifted and responsible radical reformers – in high state positions as well as in NGOs and the universities – and a decent array of “machine politicians” who remain committed to democratic institutions and are not given over to heedless self-aggrandizement.

But the more systematic answer was this. What the “peaceful revolution” path requires, as a matter of institutional reform, is a devilishly tricky combination of making institutions of governance (i.e., both state institutions and “private” ones, like the unions and corporations) at once more deeply democratic and accountable, and, at the same time, more autonomous in relation to one another, and thus more capable of instituting serious economic and social reform. The participants’ idea was to overcome the “capture” of institutions through a process and practice of reinvigorating democratic processes at each level.

This would entail two recursive moves: (a) reinvigorating democratic processes at every level by opening up such institutions far more fully to engagements “from below,” while also (b) using such democratic forms of engagement to empower reform-minded state elites to undertake redistributive reforms while protecting them from entrenched and would-be oligarchs.

Paths for Radical Reform

Tricky but hardly unprecedented. This has been the general path of major “New Deal” style reforms in democratic capitalist nations for over a century. It has always involved messy compromises and collaboration amongst social movements, radical reformers inside the state elite, and “machine politicians.”  We will return to this idea of deep-democratization-as-undergirding-for-more-capable-statecraft in a moment.  But we should say something more about a broad strategic consensus regarding the sphere of social and economic rights, which was the site where the bridge-building between the heterodox economists’ conversation about economic development and the constitutional conversation began in earnest. Three central points emerged early and often over the course of this first workshop, with rich implications for revising constitutional discourse and doctrine.

First, along with the conventional focus on welfare and social provision, social and economic rights discourse must embrace a right to decent work. South African constitutional rights discourse is notably less focused on the sphere of decent work and livelihoods than other social-democratically-inflected constitutional traditions.

Second, the dichotomy between social and economic policy is false, or at least overdrawn. We have already noted that economic policy must be reconceived in order to underwrite the South African constitution’s social rights guarantees.  So too, in the words of a workshop participant, what is conventionally considered to be “social policy is [and must be reconceived as] economic policy.”   In other words, the provision of education, healthcare, housing and the like consists of the “endowment” of “goods” that not only underpin human dignity but also foster equitable economic growth and development. Put in more traditional constitutional terms, these social and economic rights-based individual entitlements – or “endowments” – equip people to participate more fully – and with a fairer measure of opportunity – in economic, social and political life.  The idea here is that social and economic rights are essential to human dignity and welfare, but they also sound in the key of fair “equality of opportunity” in the sphere of work, livelihoods and rewards to effort and social contribution.  Thus, social and economic rights should also be conceived – in their statutory and judicial and administrative elaborations – as elements in broader strategies of inclusive and equitable economic development.

Such an approach to social and economic rights, it was pointed out, chimes with South African jurisprudence; it is already implicit in some doctrine, and seems ripe for deepening and extending.   Consider, for example, the theme of proximity to job opportunities in the jurisprudence of housing rights.  While this theme sounds in the key of fair equality of opportunity in the sphere of work and employment, it also fits with the developmental idea of making good use of human and social capital.

Third, beyond this core theme of recursive action between social endowment and economic “development,” deep democratization must undergird the renovation of the South African state. Only through a process of deep democratization does state craft, rather than state capture, become possible.  So, the constitutional political-economic project should aim for what economic and social theorists often call a “virtuous circle” or “cycle,” where democratizing reforms might evolve in tandem with “capacitation”-based reforms. This way, social movements of poor citizens striving for social and economic rights, but also increasingly equipped with social and economic rights, find an increasingly more responsive set of governance institutions through which to demand and participate in the design of more adequate forms of social provision and economic opportunity. We offer concrete examples of the imagined pathways and dynamics of this “virtuous circle” – among social movement, individual endowments, economic opportunity and institutional reform – in the White Paper.

But we don’t mean to evade the broad challenge of how to develop a “transformative” – or even more modestly reform-oriented agenda when state leadership, personnel, and institutions are crucial to the enactment and implementation of any such initiative. If the current state apparatus is “captured” and its capacities undermined in the ways participants analyzed, why talk about ambitious policies at all?

Over and over again, participants observed that any ambitious program, of redistribution, for instance, or of governmental reform itself, would in turn depend on a “capable state” for its realization.  The only rejoinder was that one could not be caught up in this logical quagmire:  substantive economic reform had to go forward while state capacitation was also taking place – both at the same time.  Thus, only the concurrent reform of both state institutions and substantive policies could drive a “virtuous” cycle that might move the South African state beyond its current crisis over time.

Such a project in turn requires two kinds of diagnostic “mapping.” On the one hand, the best substantive economic policies for enhancing equitable distribution must be identified, at least provisionally. And at the same time, promising sites for progressive state action must be targeted. So, we must have a “two-pronged” approach – creative economic policy and astute institutional reform programs – both of them in motion at the same time.

Dennis Davis is Judge at the High Court of Cape Town, Judge President of the Competition Appeal Court, and a Professor at the University of Cape Town. William E. Forbath is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas, Austin School of Law. Lucie E. White is the Louis A. Horvitz Professor of Law at Harvard Law School.  Julia Dehm is Lecturer at the La Trobe Law School; she was a postdoctoral fellow at the Rapoport Center for Human Rights and Justice at UT Austin, during the first stages of this collaboration.