When preparing the Draft South African Constitution, Judge Albie SACHS reports, one of the dividing issues among the Drafters was the inclusion of the Bill of Rights in it, with its guarantees for property. Given that property was all in the hands of a minority, some argued, the Bill of Rights would have worked in a perverse fashion, enshrining the gross economic disparities that the apartheid regime had created.
Judge SACHS then argued for three kinds of rights to be included in the Constitution:
(a) Civil and political rights (the classic Bill of Rights);
(b) Entitlements concerning housing, health, education and welfare etc. (the “second Bill of Rights”); and
(c) “solidarity rights” (right to a clean environment; inter-generational rights etc.).
The question is how such “rights” should be enforced. The traditional means of dealing with the first set is “protection under the law” – essentially a judiciable set of rules that will prevent government from overstepping its mark. Such a system is effective in protecting “negative liberties” – to use Isaiah BERLIN’s category.
But what about the other two? Should they also use coercion? Here we are confronted with “positive liberties”. The constitution, argued Albie SACHS, should include the citizens’ aspiration to give everyone a “decent life” and to protect the environment and future generations from our rapacity. The Constitution is to reflect goals about a “virtuous” society – assuming we can decide what “virtue” is in any specific situation – and would direct the state to work, in cooperation with the citizenry, toward its fulfillment.
So the question of “how to achieve virtue” is a major and real one for each state, but also the international community, and diplomacy.
“When you’re a hammer everything looks like a nail”. When the international community moved from category (a) to categories (b) and (c), it started banging virtue into people’s heads.
The coercive approach underlying the UNFCCC framework is an obvious example. Coercion is an approach has been tried in international diplomacy to force a government into applying the Bill of Rights within their territory. The results have been mixed.
Coercion, furthermore, is only effective as punishment after the fact. In a preventive setting coercion soon defeats itself. In the event of success only the costs, not the benefits, are apparent and measurable. People will wonder if it was all necessary in the first place. Do it a few times, and the method no longer has traction. This is the curse which awaits endeavours like “preventing” climate change, or “saving” biodiversity. Given that we cannot measure the effect of prevention, we need to get into a frame of mind that action is its own reward, and not predicated on a measurable outcome.
I’d venture that virtue cannot be legislated or coerced, and we have to shift paradigm completely. The new paradigm would be one which rests on the premise that humans are naturally cooperative.
Given our essentially and intrinsically cooperative nature, cooperation tends to be its own reward. So the ever important precondition above – that virtuous action be its own reward – is readily fulfilled from the outset.
Encouraging cooperation works – provided… This is a huge subject, and I would not even like to begin to chart is breadth or depth. But a few pointers:
- Cooperation is first and foremost local, and has measurable local results and rewards. Achieving the overall goal comes incidentally, and should not drive the local effort.
- Cooperation can improve gradually – once it gets beyond a minimum take-off point, and need not be complete, just “good enough” to move significantly forward.
This adaptive approach is one that “experiments with truth” (Gandhi), and fosters “dialogical truth” – a truth based on interchanges between people. To quote Albie SACHS (op. cit.): “Dialogical truth (…) [also] assumes and thrives on the notion of a community of many voices and multiple perspectives. (…)What dialogic truth implies is that the most pertinent description and the most meaningful evaluations of the phenomenon under question result from putting together all these layers of truth, different experiences, and variety of voices. (…) They composite, rather than simply aggregate, the different perspectives and evaluations. (p. 82-83)
In the end one advances the “logic of persuasion” – which is the basis of cooperative success – as well as opposite of coercion.
To paraphrase William of Orange: “One need not hope (of success) in order to undertake, nor succeed in order to persevere.
 Albie SACHS (2009): The strange alchemy of life and law. Oxford University Press, Oxford.
 Cass R. SUNSTEIN (2004): The second Bill of Rights. FRD’s unfinished revolution and why we need it more than ever. Basic Books, New York.
 This aside is a mental reference to the current controversy about the Hungarian Constitution. The newly approved document enshrines partisan values about nation, family, and religion, which will make for future strife. So is the subordination of all institutions (e.g. Central Bank), to government rule. See Gabor HALMAI (2012): Towards san illiberal democracy. – Hungary’s new constitution. Eurozine 02/12 https://mail.google.com/mail/?source=navclient&shva=1#trash/1353fb1c6d45ceb1
 For a succinct view of human history see: William H. McNEILL (2000): A short history of humanity. New York Review of Books; June 29.
 After 1900 cooperation between the USDA Extension Service and farmers was a local success. Collaterally national productivity s skyrocketed. For participants it was the local sphere that counted. In a similar vein, controlling crime appears to be more of a local matter than a the result of grand repressive policies. See Adam GOPNIK (2012): The caging of America. Why do we lock up so many people? The New Yorker, Janaury 30th.
 See Richard H. THALER – Cass R. SUNSTEIN (2008). Nudge. Improving decisions about health, wealth, and happiness. Yale University Press, New Haven.
 Mahadev H. Desai and Mohandas K. Gandhi (1993): An Autobiography: The Story of My Experiments With Truth. Bracon Press, New York.
 See Richard SENNETT (2012): Together. The rituals, pleasures and politics of cooperation. Yale University Press, New Haven.