GHALEB CACHALIA | Freedom thrives where law leaves space for dissent

I argued in a previous column that what we have lost is not just equality or justice but something more basic — the actual capacity and possibility of movement, refusal and reorganisation of our social arrangements (“The roots of domination and the loss of simple liberties”, April 2).

These were not abstract ideals but lived freedoms, freely enjoyed and then slowly foreclosed.

The follow-up question is where, if at all, those freedoms still exist — where they are actually embedded in the architecture of the law itself. Not in its declarations of rights, but in its fundamental assumptions about what human beings are permitted to do without first getting permission.

A common-law sensibility starts, at least in principle, from a straightforward premise — what is not prohibited is permitted. However, this approach leaves a residual space for action — improvisation, dissent and even quiet noncompliance.

In contrast, more codified legal systems follow the inverse, where legitimacy flows from what is expressly authorised. Whence the meta-possibility of a mapped possible world, and anything outside this demarcation is suspect by default.

This distinction is not simply technical; it is deeply philosophical.

One tradition takes it for granted that life is greater than the law; that humans are always acting, adjusting and making it impossible to predict. The other believes life must be circumscribed by the law; that order depends on prewritten definitions and administrative clarity. In the latter, the law comes before freedom. In the former, it is a thing bestowed by freedom.

Seen through the lens of David Graeber and David Wengrow’s The Dawn of Everything (referred to previously), this distinction goes beyond jurisprudence. It starts to feel like a shadowy institutional memory of the earlier freedoms involving the ability to act without prior permission, to deny without instantaneous cost, and to change social practices from below. A legal order that does not touch some space is not power-negating, but its resistance to totalisation.

The language here may change, and the intentions are almost always benevolent, but behind it lies a familiar assumption that order must be designed ahead of time, that discretion is dangerous and that freedom is something to be allocated rather than taken for granted.

The other option is more familiar than we might like to admit. It is a world in which action must increasingly receive prior authorisation, where initiative must be justified ex ante and deviation from standardised forms perceived less as the signal of innovation than as risk. In this context, freedom is no longer given; it must be administered.

South Africa must note this instinct. Our former society was founded upon systemic denial of movement, criminalisation of refusal and bureaucratic management of everyday life. The pass system not only regulated labour, it also enacted a deeper logic that nothing was permitted except by permission. Presence itself required justification.

We tore down that legal edifice, but the mindset reflected in it is more difficult to dislodge. It is there in haphazard ways — in a regulatory culture of incremental default expansion, in gatekeeping bureaucracy that conceptualises most citizens as applicants and treats them accordingly and, not least, in the political climate where control is ever more equated with care.

The language here may change, and the intentions are almost always benevolent, but behind it lies a familiar assumption that order must be designed ahead of time, that discretion is dangerous and that freedom is something to be allocated rather than taken for granted.

This is where the larger argument comes back around. If the original loss was the erosion of our ability to leave, to refuse and to reimagine, then legal systems that preserve spaces of unregulated action are not luxuries. They’re among the last institutional remembrances of those freedoms. A system that allows what isn’t forbidden also leaves open the prospect, however slender, of exit, dissent and reinvention.

It welcomes the accidental, the unauthorised and the not-yet-readable. On the other hand, a system that allows only that which is prescribed shuts down this possibility. Not dramatically, not violently, but quietly and procedurally and often irreversibly.

We like to think of freedom as having been won by what the law includes — rights and guarantees, enumerated protections. These elements are indeed significant. But there is another dimension, more delicate and less visible. Freedom lives also in what the law does not yet touch in places where we can act without permission, refuse without penalty and imagine without guidance.

Lose that, and we end up with not just restriction but a subtler condition; a completely administered life, where even our liberties come guaranteed. And that may just be the most complete cage of all.

• Cachalia, a businessman and management consultant, is a former DA MP and shadow public enterprises minister who chaired De Beers Namibia.