The idea of a ‘Just State’ (Rechtsstaat) (with reference to a unique feature of the Constitution of the Republic of South Africa)

Abstract

In South Africa the acquisition of full political and civil rights for all rectified the former political situation of apartheid South Africa. Against the background of key developments in the political legacy of the West, including the opposing theoretical orientations of individualistic and universalistic approaches, the historical roots of those conditions which eventually were recognised as essential for the idea of a just state are highlighted. Adding a mere multiplicity of individuals (atomistic social contract theories) or postulating one or another encompassing whole (such as Rousseau's volonté générale) precludes an insight into the own inner laws of distinct societal spheres. The concept of sovereignty appears not to be sufficient to delimit state-law properly. An alternative view is introduced by Althusius (1603) with his objection to the application of the whole-parts relation to society and the state. He acknowledges ‘leges propriae’ (proper laws for each societal collectivity and thus opened up an avenue for introducing the principle of sphere-sovereignty, which leaves room for the internal spheres of law of non-political societal entities as well as for personal freedom. If the spheres of public law, civil private law and non-civil private law are intact, political freedom, personal freedom and societal freedoms are secured—the structural conditions for the just state. The Constitution of South Africa incorporates these requirements for a Rechtsstaat and in addition contains a unique equity content. The future of the South African democracy is therefore crucially dependent upon the internalisation of a truly Rechtsstaat political culture.