by James Pendlebury and Sian Byrne (ZACF)

In liberal political theory – a favoured ideology of many capitalist states – an important principle is that the functions of government are divided into three “spheres” or “branches”:

• The legislature (national and provincial parliaments, local councils) makes the laws;
• the executive (ministers, officials, cops and soldiers, who report to the president or premier) carries out the laws;
• the judiciary (courts) decides what the laws mean when there is some dispute.

In states with written constitutions (including the United States, South Africa and many others) an important task of the courts is to decide whether laws passed by parliament (the legislature), or actions taken by the executive, are allowed by the constitution. (Some liberal states, such as Britain, do not have written constitutions; there the power of the courts is officially more limited.)

A key principle of the ideology of liberalism is “the separation of powers”. Each of the three branches, the liberals tell us, is entitled to autonomous responsibility for certain functions that do not overlap, or cannot be interfered with by the other spheres. The reason for this, it is argued, is that the people who make the laws shouldn’t be the same as those who interpret them or those who enforce them, and so on. No single person or group should have all the power. In this way, liberals hope to limit the powers of the state, which they recognise as a threat to freedom.

Anarchists share the view that the state is opposed to freedom: a major difference is that liberals think we still need a state, although it should be limited; anarchists think we will do better if we get rid of the state, act for ourselves, and collectively organise our lives without central authority. Also, liberals usually regard private property as an important part of freedom, while anarchists say property is about exploitation and slavery (see page 7, “Conned by the Courts”). Thus liberals defend property and the state, while anarchists fight to destroy them as pillars of the class system.

1. Anarchists say that ordinary people should have power. Giving power to a few is simply a step towards slavery.

Liberals say (or imply) that the ordinary people cannot have power. They recognise that giving power to a few is a step towards slavery, but they have two answers: first, let the people “choose” who will have power, and second, divide up the power so that no individual or group will have all the power at once.

2. Anarchists say that property is power. Therefore we say property should belong to all people as a collective.

Liberals often don’t want to admit that property is power. They assume property automatically belongs to individuals, one person, small group, organisation or corporation at a time. Some deny that this will bring about a difference of power – or say it doesn’t matter. Others say that “the market” will even out the difference. Still others say the state can interfere to even out the difference – and they assume the state will oppose the interests of those who hold the power of property!

3. Anarchists say the powers of property and state go together. Both work to enslave the majority. The property owners and the state may quarrel about minor issues; but when the working masses rise up, property owners and state are united in keeping us down. Property owners and state are both oppressors and exploiters, and neither could exist without the other.

Liberals don’t think property and the state go together: they think the two are opposed. Some liberals just deny that property is power; they will say that property is freedom, and that the biggest battle is between state power and property-as-freedom. Other liberals may accept, to some extent, that property is power. They will say that the biggest battle in society is between private property and state power, and that there needs to be a balance between these forces. Some stand whole-heartedly behind property-as-freedom; others want the state to bring the property owners into line. Both liberal factions are based on one common view: that ordinary people are too concerned with our own selfish individual interests to plan collectively for all of our interests. They draw one of two conclusions: that the best we can hope for is what we can get by competing among ourselves; or that we need a central authority to control the competition. Either way, they ignore the possibility that we could run our own lives. They unite to keep us down.

And where does “separation of powers” fit in? Liberals say that separation of powers is meant to put restrictions on the state. (The ordinary people can’t rule themselves, so the rulers have to keep each other in line.) But courts often use it as a reason for not interfering with other branches of the state. (see page 7, “Conned by the Courts”) Two central notions arise: constitutional competence, which is the notion that maintains that the court shouldn’t interfere with the duties of the executive; and institutional competence, which is about determining which organ of state is better equipped to determine the results. (Who knows how to do it? Who knows best? Is it the judges, the MPs, or the president? They never ask whether the ordinary working class and poor people themselves might have the best answer. When the judges don’t know, they assume the president or the MPs know better.)

It is unlikely that the courts will interfere in what they see as the legitimate function of the legislature or executive. They will assume that only so many resources are available, and that the executive can count the money and say how much there is. They will assume that the executive and parliament will know how best to use these resources: it is up to the executive and parliament to make decisions “within available resources”. The courts will leave the practical decisions to parliament and the executive, leaving little space for ordinary people to challenge the legal system.

In real life, we ordinary working people have two ways to influence the state. One is by voting every five years – and what difference does that make? In 1994, 1999, 2004 and 2009, the ANC promised more equality. Workers voted for them every time – and now South Africa is the most unequal society in the world.

The other way is by suing in the courts. But we sue in the courts, and then the courts say they must trust the elected politicians in the executive and legislature. The constitution says the executive and legislature are supposed to provide for our needs. But the judges say: “We are judges; we don’t know how to provide for your needs; the politicians can do that.” This is the story of the Soobramoney, Mazibuko and Grootboom cases; this is why we should not put our hopes in the courts. And that is in South Africa, where at least they talk about socio-economic rights. In most countries, such cases wouldn’t even get started. But again, maybe there are advantages in not having such illusions. If we believe that “separation of powers” is the answer to our problems, we may be queueing up in the courtroom for the rest of our lives. If we recognise that all these “separated” powers are united against us, and if we, in turn, unite against them, we the working class may still be able to build a world without markets, without competition, without property, without states – a world run according to the principle “from each according to ability, to each according to need”.