Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.
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This article was first published by Daily Friend on 7 September 2023
Julius Malema’s threats of force and the liberal order’s rules of the game
‘Sticks and stones may break my bones, but words shall never hurt me,’ is a crucially important lesson that all parents and educators must continue to teach children. But as adults, we know the true principle that this lesson represents is not uncomplicated. Words can and do form part of coercion.
Someone training their dog to attack others upon the verbal command of ‘get!’, or a warlord expressing an order for his subordinates to perpetrate a mass slaughter, are examples of where ‘expression’ is not simply expression. Even something seemingly innocuous, like sitting around a conference table in Wannsee in 1942, writing drafts and policies, is not mere expression.
This is my response to Michael Morris’s ‘Mistaking the “Malema” risk: a reply to Martin van Staden’, which was in turn a response to my original column, ‘Flags and threats: a liberal rumination on the limits of free expression’. This article is a long one, an indulgence for readers with a particular interest in the debate.
Morris and I agree about more than we disagree, but our disagreements are notable. (And it is in the disagreement among those who agree where the most interesting conversations happen!)
In this kind of discourse, one should always try to return to first principles. In this context the question is: what should be the purpose of government?
Conservatives might argue that government exists to promote the common good, having in mind a specific conception of the good life. Social democrats might argue that government’s purpose is to maximise the welfare of the people, particularly as far as economic resources are concerned. Liberals, however, argue that the government must eliminate, or at least attempt to minimise, coercion (or aggressive force). Ayn Rand (in The Virtue of Selfishness, 1963) puts it thusly:
‘A civilized society is one in which physical force is banned from human relationships – in which the government, acting as a policeman, may use force only in retaliation and only against those who initiate its use.’
FA von Hayek (in the 1945 twelfth Finlay Lecture), in turn, notes that liberal individualism:
‘[…] does not deny the necessity of coercive power but wishes to limit it – to limit it to those fields where it is indispensable to prevent coercion by others and in order to reduce the total of coercion to a minimum.’
Whatever a liberal might think it would be nice for government to do, the minimisation of coercion lies at its very core.
Malema’s threats of force
The simplest place to start – and I suspect Morris and I might disagree on the answer to this question – is here: does Julius Malema habitually threaten aggressive force?
Here is a rudimentary hall of shame of Malema’s remarks over recent years:
- During a June 2018 interview with TRTWorld, Malema said, ‘I don’t know what’s going to happen in the future. I’m saying to you: we have not called for the killing of white people, at least for now – I cannot guarantee the future!’
- At the Economic Freedom Fighters (EFF)’s 2019 electoral rally, ‘Our Land and Jobs Now’, Malema chanted the coded ‘kiss the Boer’ song, although he did not try to sanitise the preceding line of ‘shoot to kill’. This comes after Malema solemnly agreed in 2012 to never chant these words again.
- In 2022, at the EFF’s third Provincial People’s Assembly in Brackenfell, Malema said in response to an altercation between a white individual and EFF members in the area, ‘If I were to ask you what have you done in terms of follow-up after being beaten by that white guy? Why have you not as a revolutionary organisation followed-up on that guy? Him alone! To take that guy in an isolated space and attend to the guy properly.’
- Then, the key event. In August 2022, Malema sat in open court, in full view of an Equality Court judge, the press media, and the legal fraternity, and said (among many other things) the following in response to questions by Adv Mark Oppenheimer:
- ‘Let’s not make a mistake about it: it’s not like we’re just singing in jail. We were singing with a clear conscience in our mind that if opportunity prevails, we will bomb the Union Buildings.’
- Asked about whether he said at a prior occasion that ‘we need a system to get rid of white people’, Malema responded ‘yes’. He elaborated: ‘So if we go into a conference, or into Parliament and make a constitutional amendment, that all whites must be driven into the sea, and any white who remains here is going to be killed, then we engage in that type of a programme to drive all whites into the sea. It’s an institutionalised decision.’
- Asked to clarify whether Malema meant what he said when he said, ‘we are not calling for the slaughter of white people, at least for now’, Malema explained that ‘it may not be me [who does the calling]’, but that ‘it could be me’. Asked to pledge that he will never call for the slaughter of white people, he says ‘I won’t do it’.
- Adv Oppenheimer asked Malema whether he could see the problem inherent in his nonchalant rhetoric and incoherent philosophy around violence, to which Malema responded, ‘I never said I am someone moderate. I am very radical and very militant. And I make no apology about that. And I stand by everything I said.’
- Asked whether he would be happy to endorse violence to achieve his revolutionary aims, Malema responded, ‘My Lord, when the time comes and the conditions on the ground necessitate that arms must be taken, we will do so without hesitation.’
- Asked whether he is ‘scared of killing’, Malema responded, ‘I am not scared of killing. A revolutionary is a walking, killing machine! I am not scared of death! If that need arises, I will kill, and I will do so with no hesitation!’
Just because he strategically places the terms and phrases ‘for now’, ‘when the time comes’, ‘might’ and ‘if’ around his remarks, does not mean observers must allow themselves to be made fools of.
Given all of this explanation and ‘context’, one must conclude that Julius Malema is very comfortable with encouraging – among his own followers – the widespread killing of people on the basis of their race. While Morris might be troubled by my certainty about the principle at play, I feel confident in concluding that Malema means what he says and says what he means, and we must not deny him that agency.
If Malema came out and said, ‘Whites should be killed right now!’, he would not be adding any new information.
The Equality Court judgment was, to use a technical term, ‘obviously wrong’. And this is why the Free Market Foundation’s Rule of Law Project intervened as an amicus curia (friend of the court) in the appeal on the matter in the Supreme Court of Appeal on 4 September 2023.
We feel confident about the Equality Court having erred, because while Malema was found not guilty, the same court found Kenny Kunene guilty of ‘hate speech’ on the grounds of calling Malema a ‘cockroach’; found Penny Sparrow guilty on the grounds of calling black people ‘monkeys’; found Vicki Momberg guilty (on a charge that should not be, but is, related: crimen iniuria) on the grounds of engaging in a racist tirade, utilising the ‘k-word’ repeatedly, against black police officials; and found Jon Qwelane guilty for arguing against the legalisation of gay marriage and ostensibly equating bestiality with homosexuality. And, of course, let us not forget the inanimate cloth that is the old South African flag, which has also been declared as prohibited hate speech.
In no country where the rule of law reigns supreme can Kunene, Sparrow, Momberg, Qwelane, and a dead piece of cloth be guilty, leading to fines and even imprisonment, but Malema innocent. Of all these instances of expression, Malema’s is the only one that sincerely, directly, and unequivocally threatens aggressive violence against peaceful people.
(My arguments in this article represent my own views exclusively and should not be confused with the submissions made by the Rule of Law Project in court, which relate specifically to hate speech law under the South African Constitution. Instead, this is my argument about freedom of expression in the realm of liberal theory.)
Malema’s remarks as coercion?
The next obvious question is, can these ‘remarks’ from Malema qualify as an initiation of aggressive force? ‘Sticks and stones’, after all.
One needs to determine where ‘expression’ begins and ends. But one must also understand that the ‘expression’ we refer to when we talk about ‘freedom of expression’ is a particular thing that does not extend to all manifestations of ‘expression’ as a normal noun. Allow me to explain.
Everyone instinctively understands that the Nuremberg Laws – the Acts of Parliament in Nazi Germany that turned Jews into second-class citizens long before the Holocaust – were not a matter of ‘free expression’ which must be ‘tolerated’ so that we do not take excessive ‘risks’ with prohibitionism. Of course, someone might retort that people were actually harmed and killed under the Nuremberg Laws, and this is true.
The question, however, then becomes this: for the brief period of time (hours, days, weeks) after the laws were adopted, but before they were implemented, were the Nuremberg Laws simply harmless ‘expression’ that a free society would have to tolerate?
I am not sure what Morris’s answer would be, but mine would be an unequivocal ‘no’: such ‘expressions’ can never be tolerated in a free society, because they are not mere expressions. Instead, they form part of aggression and must be prohibited. The Nuremberg Laws qualified as initiations of aggressive force – not only against lives, but against liberty and property – long before any force was committed in their name.
Prohibiting threats of aggressive force (what is also called ‘criminal threats’) is not ‘a law’ in the sense Morris conceives of it when he (rightly) warns against the creation of bad law, just as the prohibition against rape and murder are not ‘laws’ in this sense.
Rape and murder – and, in my view, criminal threats – are mala in se: acts that are legally prohibited and criminal by their very nature and do not require an enabling ‘law’ to qualify as such.
Threats of aggressive force do not form part of the domain of expression, but rather part of the domain of force. ‘Writing an Act of Parliament’ like the Nuremberg Laws is not ‘expression’ in the same way ‘writing a poem’ is. Everyone gets to write a poem – express themselves – but not everyone gets to write an Act of Parliament.
Similarly, I submit that nobody gets to threaten aggressive force. This must, as I indicated in the original column, be distinguished from defensive force – threatening and taking action in defence of life, liberty, and property.
Causing offence and inflaming passions – of particular importance in the Charlie Hebdo shooting in 2015, as Morris explains – are on the other hand unquestionably part of freedom of expression. But this does not meet the easily comprehensible standard of threatening aggressive force.
Morris is also entirely correct that society should not look to law to solve all problems. I would say even ‘most’ of our problems should not become the domain of law. Law, instead – I submit – is concerned with a very specific kind of problem: coercion.
And the benefit of threats of aggressive force is that it is easily definable, in addition to us ‘knowing it when we see it’. This puts this malum in se in a different category to that of the total subjectiveness associated with (for example) offensiveness and defamation.
Morris is also correct that I would want Malema subjected to a fair trial – this goes without saying. And he is correct that, ‘In a sense, the court’s handing down a sentence is the last word, and is intended to be.’
But Malema has not had his day in court. He was sued in civil court for ‘hate speech’ under the 2000 Equality Act. This was the tool available to AfriForum, but as I explained in the original column, it is an unfortunate tool. The presence or absence of ‘hate’ in someone’s rhetoric or expression should properly be irrelevant. I do not want Malema in prison for ‘hate speech’ because it is entirely irrelevant and uninteresting to me that Malema hates anyone. He has a right to hate, as do we all.
In my view, Malema should be prosecuted in terms of the ordinary criminal law for threatening (mass) murder against a discernible group of people. And if there was any doubt about the ‘symbolic’ meaning of the words in ‘Kill the Boer’, Malema clarified in public and in court that, symbolism aside, he might well call for genocide in the future. He is telling us what he means when he says these words.
That is what makes him chanting ‘Kill the Boer’ a threat of aggressive force.
Banning ‘Kill the Boer’
‘Kill the Boer’ should not be ‘banned’. In liberal theory, the state has no legitimate authority to ban anything in particular.
When we sing along to the song ‘Drunken Sailor’, and sing ‘Beat him over with a cat-o-nine-tails’, we should not all be imprisoned, nor should ‘Drunken Sailor’ be banned as a song that threatens aggressive force.
However, if inebriated seamen were to become a problem in the Durban Harbour area, and a prominent Durbanite established an association that adopted ‘Drunken Sailor’ as its theme song and, in addition to singing this song repeatedly, explained in speeches, and to the television media, in all sincerity, that he seeks violence to be done against drunken sailors in the Durban area, then his singing of ‘Drunken Sailor’ can properly be regarded and punished as a threat of aggressive force.
Literal or figurative?
The speculation on the ‘actual meaning’ of the words, ‘Kill the Boer’, seems to me to be counterproductive, especially after Malema has clarified his ideology in this respect in fine detail already.
We dare not afford the clever and scheming criminal class among us the get-out-of-jail-free card of telling them that if they ‘chant’ their threats – or dress their threats up in coded language that harkens back to struggle days – they will escape the application of law.
I am not construing the words of ‘Kill the Boer’ in isolation from the one who speaks them.
If Malema chanted this phrase, but otherwise gave no indication that he encourages or incites violence against people on the basis of race, I would agree that there is no question of criminal threats. Again, singing ‘Drunken Sailor’ in itself means nothing. But just like Malema and those who follow him keep throwing the word ‘context’ around as if it were a standalone argument, it is precisely the context that leads me to my conclusion.
Malema’s chanting of ‘Kill the Boer’ must be viewed in the context of the many other remarks and actions he (and the EFF, from which his personality is not easily separable) has taken, including the rhetoric about the possibility of him calling for a ‘future’ white genocide, but also including other rhetoric around the stealing of property belonging (in particular, though not exclusively) to whites. The EFF and its functionaries are ‘radicals’ and ‘militants’ that have engaged in mass land invasions, property damage (attacking H&M and Clicks stores, among others), and assaulting other politicians and journalists, to name but a few aggressions.
Malema has painted a clear enough picture that he intends nothing but harm to come to white South Africans in particular, which gives us clearer and understandable insight into precisely what he means when he chants ‘Kill the Boer’.
This is what Adv Mark Oppenheimer set out to do in the AfriForum matter in the Equality Court, and he succeeded in spades in doing so. But because it was a ‘hate speech’ case, the issue was muddied.
I think Morris sets too low a standard – as a matter of mere (or pure) criminal law – when he writes, ‘the words [of “Kill the Boer”] are not [Malema’s], and, even if he’s implicitly recommending this action, it’s not an instruction’.
If this were to be accepted as a standard, then any Nazi or Khmer Rouge official could potentially hide from criminal culpability by scouring public records to find a song, a chant, a poem, a motto, or the like, and use that – as opposed to ‘their own’ words – to ‘recommend’ to subordinates what to do. During the Rwandan genocide, the perpetrators infamously used the coded term ‘cockroach’ to refer to their intended victims and ‘the work’ to refer to their diabolical actions. Coded language, and the words of ‘someone else’, cannot simply be invoked to escape culpability for doing exactly what the context shows you to be doing.
Morris asks, ‘is the “aggressive force”, whatever its sincerity, really an imminent threat that only the punitive repertoire of the state can adequately address?’
I have my doubts about treating ‘imminence’ as a requirement. The common law, to my knowledge, does not require imminence. In American law, which shares the foundation of the British criminal law with South Africa, for example, criminal threats require the following:
‘the defendant communicated a threat of harm to another
the defendant intended that the communication be taken as a threat, and
the threat was credible and specific so as to place a person in fear of harm.’
I am not sure about the usefulness or coherence of these requirements, but they do lack the ostensible requirement of imminence, and I am not entirely sure why imminence features in section 16(2)(b) of the South African Constitution.
Determining imminence is (in my view) much more difficult than determining whether a threat of aggressive force is present. Is ‘the next 10 minutes’ imminent? Does it refer to a degree of hours, or days? Were the Nuremberg Laws’ threat of force imminent, or did they only become imminent when they were gazetted?
What about an order to kill? If a criminal boss orders his henchmen to kill an innocent civilian ‘in five months’, clearly there is no ‘imminence’, so is this order a lawful ‘expression’ by the boss to his underlings? I would say no, it is not, and that this ‘expression’ – forming as it does part of force rather than mere expression – must be prohibited and punished.
As I indicated in the original column, however, imminence is relevant – not to determine whether there is a real threat of aggressive force worth punishing, but instead to determine the nature of the relief. A threat of ‘imminent’ violence can be immediately repelled through the use of defensive force. A threat of ‘non-imminent’ violence must still be met with legal punishment, but this would take forms other than direct defensive violence, like arrest.
The next question to ask is whether the threat of force is ‘sincere’.
I agree entirely with Morris that the circumstances must dictate. I do not favour strict liability – the legal doctrine that holds that a person is liable for something simply by performing the act, without regard to any other factor. ‘Sincerity’ must be determined.
I disagree with Morris, however – using his own analogy – that the rich man at the residents’ association meeting who says he would like to kill homeless people is sincere.
That would be an impassioned and ignorant statement to make under the circumstances. The same will be true for the thousands of EFF supporters who get swept up in the ‘ignorance-of-crowds’ moment when ‘Kill the Boer’ is chanted.
But when tested on sincerity, the person of Julius Malema clearly qualifies, even if some judges would rather it not be so. As we have seen and read, while under examination in the August 2022 hate speech trial, Malema could have easily disavowed violence and stuck exclusively to the argument that the chant held symbolic value only. Instead, Malema put it plainly that genocide against whites might be something he could call for in the future. He was not joking – his violent intent was sincere. In court and at prior occasions he also told his followers that they must be willing to kill for ‘the revolution’.
This was not a moment of irrationality or frustration as in the case of the man at the residents’ association. Malema’s threats of aggressive force are always seeminglyexpressed with premeditation and sincerity.
Morris writes that ‘it is in this determination to examine the circumstances where I believe the liberal wishes to exert a strenuous effort to preserve the room for argument’.
I cannot agree more. There must be room for argument that the threat of aggressive force was not sincere. But facts sometimes must outweigh mere argument, and in the specific case of Julius Malema, his conduct shows manifestly that his threats of aggressive force are sincere.
And, again, Malema will be the first to tell us this.
I do have a slight disagreement with Morris, however, when he writes that, ‘If [the rich man at the residents’ association] does act, of course, defensive force is justifiable.’ Yes, defensive force would be justified under those circumstances, but to me it appears self-defeating to only allow defensive force once the threatened act takes place.
Applied to the rich man in these circumstances, there was no threat, so the point is moot. But if the same rich man, with a track record of endorsing and inciting violence, came to successive residents’ association meetings and expressed his desire to murder homeless people time and again – and under oath declared that this is fully his intention at some point in the future – then I would shed no tear for him if he were prosecuted. No homeless person should be sacrificed first, before action can be lawfully taken.
Morris points out that silencing an expressed threat of aggressive force risks, among other things, denying society the ‘freedom and agency to […] decide’.
By saying this, Morris touches on another debate among liberals that I think needs to be similarly foregrounded. One group of liberals – myself among them – believes that individual self-determination is not a negotiable point of public policy, despite the many infringements that it suffers daily. To this group, society does not get to ‘decide’ whether individuals have the right to life, liberty, and property – individuals have this right by virtue of simply being.
The other group of liberals believes that in the battle of ideas everything is up for grabs, and that from time to time society might modify or even replace its conceptualisation of liberty. To this group, liberals must accept this outcome, almost in the same way that liberals must accept, in a free market, when the products they might subjectively prefer are discontinued.
Both these groups have a high degree of confidence in liberty. The first group is so confident in liberty that we deem it non-negotiable – the battle of ideas serving as a tool in the defence of freedom. The second group is so confident in liberty that they believe it will necessarily win the battle of ideas.
But being a member of the first group myself, I argue, in a similar vein, that it should not (and is not, in my view) up to society to ‘decide’ whether someone like Julius Malema may or may not threaten aggressive force. As mentioned, this is a malum in se – it is by its nature a legally proscribed phenomenon. And it is more so the case because if Malema got his way, there would be no society left to ‘decide’ – the kind of political programme he has in mind leaves no room for dissent.
Although we must not be uncritical of it, there is some use in us taking Karl Popper’s notion of the ‘paradox of tolerance’ seriously.
Liberalism, liberal order, and liberal constitutionalism should not contain the seeds of their own destruction, because what liberalism represents – the inherent freedom of every individual to determine their own affairs without undue interference – is too important to leave to either the wisdom or ignorance of crowds. Even Hayek, perhaps the most effective advocate for spontaneous order, recognised that there are certain ‘rules of the game’ that transcend whatever this ‘order’ produces ‘spontaneously’.
Morris writes – having quoted Terence Corrigan and HL Mencken – that, ‘It is tiresome always having to sally forth in defence of the free speech rights of people we’d likely not have in our homes, and who’d probably detest us, too. But it remains a critically important thing to do.’
This is absolutely correct, but I fear it muddies the issue.
Morris implies, effectively, that he is a free-speech absolutist, and that he is defending the freedom of people to say unpopular things regardless of what it is they are saying.
But Morris has already conceded, by arguing that when aggressive force is ‘imminently’ threatened, he will support the invocation of defensive force against the assailant. The presence or absence of imminence does not make an ‘expressed’ threat any less of an expression.
Free-speech absolutism – the perspective held by some of my friends and colleagues – would allow even threats of imminent force, in addition to abolishing legal doctrines like defamation (libel/slander).
Neither Morris nor I are absolutists, and as such I think neither of us should be invoking the (rightly) noble sentiment of defending those who say unpopular things. Yes, both Morris and I would – and do – do this, but ‘saying unpopular things’ is not what we are discussing here.
Even if what Malema is threatening was popular, it would still need to be prohibited. Malema has left the realm of mere expression and entered the realm of aggression (and, unlike the adherents of the religion of Critical Social Justice, I need not redefine ‘aggression’ to make my point!), which has always been recognised as including threats as part of its overall scheme. If it did not, then we would have no leg to stand on to prosecute Nazis or other war criminals for giving orders to commit human rights violations. The moment they gave the order, that expression left the realm of mere expression and entered the realm of aggression.
We must defend the unpopular, the offensive, the repugnant. We must, as liberals, however, never be seen to defend the coercive.
Morris also notes an alarmist segment by Leo Kearse on GBNews. I agree with Morris when he asks, ‘Are we to be persuaded that, under Malema’s influence, millions of South Africans will rise up and fall upon their compatriots?’ Obviously not.
I communicated a similar sentiment on a recent Project Liberal podcast, where I explained that there is no white genocide in South Africa, given how well South Africans get along despite ostensible racial divisions. But targeted killing (something South African farmers – and other vulnerable groups – are, arguably, already experiencing) does not have to be perpetrated by ‘the majority’.
Julius Malema and the EFF will, if allowed to, institute an authoritarian dictatorship in this country, to which a dedicated and ideological corps of cadres will be deployed. But even outside this minority of true believers – as Jordan Peterson has explained in his work – it does not take moustache-twirling, vile individuals to commit unspeakable evil. Many of the cogs in the Nazi extermination machine were, in all likelihood, perfectly reasonable individuals under other circumstances.
I do not – nor does AfriForum, often accused of doing so – believe there is racial bloodlust in South Africa, but that does not matter. Any instigation of genocide or murder of whatever other kind must be absolutely disallowed, whether in South Africa, Rwanda, the United States, or Iceland.
I do however think Morris makes one error in his response to Kearse. He asks, ‘that to talk of white genocide in South Africa in 2023 means isolating a racial fraction of murder victims, and so contriving to brush reality aside, and be willing to overlook the real, frightening scale of violent crime in the country in the service of, well, of what? A racially superior claim to life and liberty?’
No victim is more entitled to the protection of law than any other victim (another worrying feature of ‘hate crime’ law). Although I am not familiar with Kearse or his work, I do not think this is the argument that bona fide people who (mistakenly) claim that there is a white genocide in South Africa are making.
The problem here is that (if the issue is approached racially) while black South Africans are by far and away the greatest victims of violent crime in South Africa, nobody of any note anywhere is encouraging this. There is no South African equivalent of the Ku Klux Klan inciting violence against blacks. Outside of Malema and the EFF, no leaders of any parties represented in Parliament have made themselves guilty of any rhetoric that could reasonably be interpreted as encouraging violence against blacks, the poor, or any profession, whatever its racial composition.
Thus, while (take your pick:) whites, Afrikaners, farmers, white farmers, or Afrikaner farmers, are not a numerically greater set of victims of violent crime, they earn the special distinction of being a politically targeted group. The leader of the third-largest party has, in the words of a chant, on international television, and in court, effectively said, ‘Whites should be killed, and I chant for them to be killed.’
But Morris is obviously right when he argues that the white genocide narrative is harmful. In my view, it muddies the issue. Malema should not be prosecuted for racism or the very special crime of genocide. He has made himself guilty of a far simpler and readily understood trespass, being criminal threats. And that is what commentators, and the law, must focus on.
Acceptable and unacceptable danger
I do agree with Morris that people must be allowed to express ‘dangerous thoughts’ and beliefs. Of course they must be. Morris places the right emphasis on the ‘danger’ of freedom. Freedom is dangerous. But the logic of freedom recognises both acceptable and unacceptable dangers.
Everyone appreciates the difference in kind between a dangerous idea, and a proposition to infringe on the lives, liberty, or property of other individuals. The latter is not a ‘danger’ that is tolerable in a free society, for the second it becomes tolerated, the society ceases to be free.
As I indicated in my initial column, freedom necessarily assumes the absence of force (leftists would submit, quite ridiculously, that freedom necessarily assumes the absence of inconvenience, misfortune, and poverty, but these arguments are spurious). If freedom allows aggressive force, then it is left without a coherent definition. Freedom at its most basic means being allowed, or tolerated, to do as one pleases. This necessarily excludes disallowing or not tolerating others doing as they please.
One cannot speak of a ‘freedom to threaten the freedom of others’. The very notion is incoherent. When we advocate for freedom and live in freedom, we are thinking and speaking precisely of a society where freedom is legally secure from aggressive force. If a ‘free society’ allows aggressive force, then it is not a free society.
The only trouble we are seized with, is how – or whether – the principle (disallowing threats of aggressive force) can be fairly and justly implemented by a state criminal justice system. This is by no means an easy question to answer, and like Morris, I am ambivalent that the 2023 South African justice system can do so. The seeming bias in our courts in favour of allowing powerful politicians (but not others) to threaten aggressive violence appears strong for the moment.
The law is not the only way to secure freedom. Sometimes it is not even the best way. But it is an indispensable element for qualifying a society as free. As I explained in a recent Institute of Race Relations report, ‘Civil Liberty in South Africa: Freedom Under Law Three Decades After Apartheid’, some agriculturalist in the middle of the Democratic Republic of the Congo might be factually free, but it would take some dishonesty to say that she lives in a ‘free society’.
What, however, is an example of an acceptable danger?
It is the danger that (for example) transgender people pose when they exercise their freedom. They are challenging (and changing) fundamental social assumptions. In a free society, this is okay – it is a ‘danger’ to many things, and perhaps even to the pillars of our civilisation (I doubt it, but it is arguable), but it is not a danger to freedom. We can then add the ‘danger’ of pollution, the ‘danger’ of second-hand smoke, the ‘danger’ of racism. All these dangers are dangers that one must live with in a state of liberty.
Dangers to freedom, on the other hand, are precisely what the state exists to combat, and are intolerable in society.
The danger of theft, of murder, of rape, of genocide, of assault, and of threatening, inciting, facilitating, attempting, or conspiring to do any of these things – these are the dangers that must be relentlessly stamped out.
Liberalism’s rules of the game
When Morris, therefore, writes, ‘Ideas, no longer contestable, become actions, points of dispute become stones, bullets, missiles. Contest becomes conflict, and contestants, combatants. The idea will out,’ it is precisely my approach that seeks to stop society from reaching this point. It is Julius Malema who has moved beyond the realm of ideas into the realm of physical conflict.
The battle of ideas metaphor is apt because it expresses a better alternative to ‘real battle’. Rather than using coercion against one another, we debate and discuss our differences and try to convince our peers to see things our way. This is one of liberalism’s basic offerings: you will not be compelled. Instead, you will (or won’t) be convinced.
There is, however, one significant proviso to this. The battle of ideas only works if everyone who participates in it acknowledge the rules of the game. When, during this ‘battle’, one announces that one does not consider oneself bound by these rules – as in the case of Julius Malema – the internal consistency of the battle falls apart.
And when Morris writes that, ‘Freedom is never a guaranteed condition, which is why we can never stop arguing for it, this being, in a fundamental way, inseparable from practising it,’ I would go further, and say that we can never stop fighting for freedom.
Freedom is the bedrock of all legitimate conduct. For the religious, it is the act of choosing God’s glory over the alternative that brings meaning to life – anyone ‘forced’ into religion can never legitimately be regarded as a member of that religion. Freedom is what distinguishes sex from rape. It is what distinguishes a donation from robbery. Sans freedom, social legitimacy collapses.
I appreciate Morris’s invocation of Wooldridge’s quote. That liberalism seeks to reduce the scope of politics is one of the most important observations about the philosophy of liberty. After all, liberalism has correctly been described as an ‘anti-politics’.
The question becomes: is liberalism serious, or simply rhetorical, about the reduction of the scope of politics?
Julius Malema and his EFF seek to radically and violently extend the scope of politics into a realm where an ‘institutionalised decision’ can be taken to ‘drive all whites into the sea’ and to kill ‘any white who remains here’. If liberalism seeks – as it does – to reduce that scope, it must be willing to take the action necessary to ensure that that happens.
Freedom is something – perhaps the only thing – worth using coercive violence for, but never against. Far from merely arguing for it – which we must also do, relentlessly, as Morris correctly advocates – we must be willing to invoke force in defence of freedom. And, indeed, going all the way back to John Locke, this is precisely why the state exists.