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This essay was originally published in the Annuaire International des Droits de l’Homme/International Yearbook on Human Rights V/2010, ed. Ant. N. Sakkoulas & Bruylant, pp. 719-759.


In a 1819 lecture Benjamin Constant distinguished between two kinds of liberty: the “liberty of the moderns” and the “liberty of the ancients.” He identified the former with individual autonomy, while the latter consisted in “exercising collectively, but directly, several parts of the complete sovereignty.” Constant pointed out the inadequacy of the “liberty of the ancients” due to the danger of individuals being fully subjected to the unbridled collective authority; however, modern safeguards of individual autonomy aspire to keep in check potential excesses of collective power. The additional challenge with which we are faced today is that, in focusing on the “liberty of the moderns,” we not lose sight of the “liberty of the ancients” in the sense of “active and constant participation in collective power.”

This essay departs from a case of the South African Constitutional Court, Doctors for Life International v. the Speaker of the National Assembly & Others, regarding citizen participation in the legislative process. The piece establishes a scheme of four generations of participation rights and situates Doctors for Life in this context as a fourth-generation right. It reads the case as an invitation to reconsider the content of the “liberty of the ancients” by recognizing the importance and limitations of an enforceable regime of citizen participation in the legislative process. In that respect, the essay addresses both the novelty of the case but also tries to connect it with more traditional ideas, showing how it might revitalize the “liberty of the ancients.”

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Citizen participation; Administrative law; Legislation; South Africa; Comparative and Foreign Law