Martin van Staden

Libertarian Jurisprudence & Free Market Policy

Libertarian Legal Theory

Martin’s principal jurisprudential interest is Libertarian Legal Theory, a term popularised by the American attorney and former editor of the Libertarian Papers, Stephan Kinsella. While Martin did touch upon this in his senior thesis on Transformationism and social engineering, Martin is interested in eventually formulating a coherent treatise on libertarian law, based on libertarian principles and the Roman-Dutch legal tradition.

Some core texts in Libertarian Legal Theory include The Law by Frederic Bastiat, The Ethics of Liberty by Murray N Rothbard, The Constitution of Liberty and Law, Legislation, and Liberty by Friedrich von Hayek, and Freedom and the Law by Bruno Leoni.

The first portion of Martin’s Master of Laws dissertation, “In Favorem Libertatis: The Prospect of Liberty in the Transformation(isation) of South African Law”, provides a comprehensive overview of Libertarian Legal Theory, including the natural rights, argumentation ethics, and generic consistency approaches to law. He then measured Transformationism — the rough equivalent of American living constitutionalism fused with an overt political dedication to the ideas of progressivism or “social justice” — against the backdrop of Libertarian Legal Theory. From the conclusion of the dissertation:

“I submit that law’s inherent and legitimate function remains to safeguard the innate rights (and see to the enforcement of their correlative obligations) of all individuals. Transformationist approaches have not remained faithful to this function. Arguments that society has changed and therefore the raison d’etre of law must also change, are unconvincing from the libertarian perspective. A change in society can never, for instance, remove from a key its inherent role to open a lock, from a television screen its inherent role to project images, from a calculator its inherent role to compute, from a mouth its inherent role to articulate and consume, or from the brain its inherent role to think and coordinate. Like these things, the law has an inherent function that it can only be robbed of through perversion and misrepresentation. This is not an argument against legal pluralism or in favour of libertarian legal imperialism, but simply one against coercing individuals into arrangements to which they do not consent. This means that people can choose to live according to the fundamental dictates of Sharia law or under the various unconscionably suppressed legal systems and cultures of colonised societies. Indeed, the law’s various branches and contexts allow a multiplicity of legal arrangements, but at its core the law demands that the individual not be compelled to do that which they themselves have not agreed to.

South African law, like all law, must develop in favorem libertatis. This alone can represent an authentic transformation from an authoritarian past – and present – to a free future.”