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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” (i.e., individual autonomy) and the “liberty of the ancients” (i.e., the collective and direct exercise of sovereignty). I argue that modern safeguards of individual autonomy aspire to keep in check potential excesses of collective power. However, in focusing on the “liberty of the moderns,” we must not lose sight of the “liberty of the ancients.” This essay begins with a case of the South African Constitutional Court, Doctors for Life, regarding citizen participation in the legislative process. It establishes a scheme of four generations of participation rights and situates Doctors for Life in this context as a fourth-generation right. I read 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 this 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