Download this publication - PULP

80 Chapter 3
residential life [and] religious practice’. 16 Associational freedom is an
essential part of individual freedom: associations represent the choices of
their members about how to live. 17 The value placed on freedom of
association also reflects the importance of civil society, ‘that network of
intimate, expressive, and associational institutions that stand between the
individual and the state’, the discussion of which in the United States
political tradition goes back to Alexis de Tocqueville. 18 The existence of
associations serves as a counterweight to potentially overweening state
power.
In Roberts v United States Jaycees, 19 the US Supreme Court recognised
the right to freedom of association (which is not explicitly mentioned in the
US Constitution, as it is in the South African Constitution) as limiting the
extension to associations of otherwise applicable public principles.
Brennan J expresses many of the strongest reasons for protecting freedom
of association: It is ‘a fundamental element of human liberty’ that enables
such activities as ‘speech, assembly … and the exercise of religion.’ 20
Associations have ‘played a critical role in … cultivating and transmitting
shared ideals and beliefs … and act[ing] as critical buffers between the
individual and the power of the state’ and individuals ‘draw much of their
emotional enrichment from close ties with others’ forged in associations.
Further, freedom of association ‘safeguards the ability independently to
define one's identity that is central to any concept of liberty’. 21
Another way to capture the significance of freedom of association is to
frame it as a matter of diversity. As Galston has argued, ‘properly
understood, liberalism is about the protection of diversity’. 22 A liberal state
is one in which there exist associations embodying contrasting conceptions
of the good life and differing views on what constitute worthy goals. As
Brennan J puts it in Jaycees, associations ‘foster diversity’. 23 He expands on
this point as follows: 24
An individual's freedom to speak [and] to worship … could not be vigorously
protected from interference by the state unless a correlative freedom to engage
in group effort toward those ends were not also guaranteed. According
16 A Gutmann ‘Freedom of association: An introductory essay’ in A Gutmann (ed)
Freedom of association (1998) 3-4. On matters relating to freedom of association in South
African constitutionalism, see S Woolman ‘Freedom of association’ in Woolman et al (n
1 above) ch 44.
17
G Kateb ‘The value of association’ in Gutmann (n 16 above) 36.
18 Galston (n 14 above) 531.
19 468 US 609 (1984).
20
Roberts (n 19 above) 618.
21 Roberts (n 19 above) 618-619.
22 Galston (n 14 above) 523. To take a prominent example of modern liberal philosophy,
John Rawls's Political liberalism (1993) is a response to what he calls ‘the fact of
reasonable pluralism’ (36). It purports to take seriously ‘the diversity of religious,
philosophical and moral doctrines found in modern democratic societies’ (136).
23
Roberts (n 19 above) 619.
24 Roberts (n 19 above) 622.