21 March is Human Rights Day in South Africa, linked with 21 March 1960, when dozens of people were killed and hundreds wounded by the Apartheid government, for protesting against the pass laws in force at the time. During that era of our history South Africa lived under parliamentary sovereignty, where no constitutional bill of rights existed. Parliament could pass any law with a simple majority. All the rights we enjoy today were recognized rights then, as well – known as ‘common law rights’ – but had very weak protection. To illustrate: Acting Judge President Van Zijl pompously declared in the 1973 Cape Provincial Division of State v. Turrell and Others that –
“Freedom of speech and freedom of assembly are part of the democratic rights of every citizen of the Republic and Parliament guards these rights jealously for they are part of the very foundations upon which Parliament itself rests. Free assembly is a most important right for it is generally only organised public opinion that carries weight and it is extremely difficult to organise it if there is no right of public assembly.”
He then went on to say that the Riotous Assemblies Act was perfectly fine in allowing the Minister of Justice to prohibit protests. The judge clearly says that these rights existed, but in the back of his mind he knew that legislation always trumps the common law, which is still the same today. The difference is that today we have the Constitution, which provides much greater protection for our now constitutionalized common law rights.
Unfortunately, the Constitution went beyond the common law rights and added various other welfare provisions which cannot, in any ordinary sense of the word, be construed as ‘rights’. Parliament’s website had the following description of what ‘human rights’ are, but has since removed it: “Human rights are rights that everyone should have simply because they are humans, but human rights are also a product of historical and social situations.” The former part of that assertion makes logical sense: these entitlements accrue to us by virtue of our existence. As human beings, by our nature, we make decisions, and for those decisions – no matter their content – to truly be ours, we must be able to make them without coercion from others. This is why the rights to life, liberty, and property, are said to be natural rights. The more preferable construction today, however, is individual rights.
The latter part of Parliament’s assertion, however, is problematic. If rights can be “products of historical and social situations”, then how can they be ‘rights’? A right, by its nature, does not ‘depend’ on anything. If it depends, then it is not really a right. Moreover, they cannot be construed as ‘human’ rights if they depend on historical and social situations, because these ‘situations’ are context-specific. South Africa does not share the same historical context with, for example, Norway. How then can we have ‘our’ human rights, and they have ‘their’ human rights? Is a human right not a universal right? Furthermore, the fact that it apparently ‘depends’ implies that a right is whatever the State or a democratic majority says it is – making it quite arbitrary. It makes little sense to say that human rights accrue to us by virtue of our existence, but also just because the government says it does. The question that has gone unanswered in South Africa is whether or not our rights preexist the government and the law, or whether they are granted by the government and the law. I would argue the latter is illogical, and makes ample provision for tyranny. The former is the most logically consistent position to hold.
The Constitution, which has made life infinitely more livable than what we had under Apartheid, is not a good standard to consider in the context of rights. During Apartheid, common law rights had to be ‘balanced’ against one another when legislation did not provide a clear resolution, making the rights equal to one another. Nowadays, the Constitution perpetuates this unfortunate state of affairs, but went further by introducing welfare ‘rights’. Individual rights (the common law rights) must now be balanced against welfare rights, which creates a conflict of rights. In proper rights theory, rights (not to be confused with contractual obligations and entitlements, which are often erroneously called ‘rights’) cannot conflict. When there is a conflict, it simply means that a false right is in conflict with an individual right.
Rights cannot conflict because a right does not impose an obligation on others, but simply acts as a barrier against the violation of that interest. As Jim Peron illustrates –
“My right to life doesn’t mean that you are obligated to feed me but it does mean that you are not allowed to murder me. My right to free speech wouldn’t mean that you are obligated to read this essay. But it would mean that you cannot prevent others from reading it or prevent me from publishing it.”
This, clearly, shows that rights are negative, in that they prevent others from doing something, but cannot oblige them to action (which would make rights positive).
The South African Constitution has a host of positive ‘rights’, such as education and housing. If you understand the explanation above, you should understand why these cannot be seen as rights. They require someone – most often the government – to ‘do something’ for the ‘right’ to be realized. Nothing from the nature of humans suggests that we have a ‘right’ to be educated by others, or that others have an obligation to house us. These are entitlements, which should flow from voluntary contracts. The constitutionalization of these entitlements as ‘rights’ imposed by law has caused much of the tension and social conflict South Africa has experienced since the end of Apartheid. As David Kelley writes:
“… welfare rights as a category conflict with [individual] rights. The conflict is inevitable because any welfare right imposes on others unchosen positive obligations that, when enforced, deprive others of their liberty or property. Welfare rights also conflict with each other, and that conflict too is inevitable.”
Indeed, as Peron writes in response, “I do not have a right to my property if someone else has a right to reach into my pocket and help themselves to my earnings. I do not have a right to free speech if someone else may say that my speech offends them and thus I am forbidden to speak.” This shows how the ‘balancing act’ adopted by our courts is simply illogical, and negates the essence of what a ‘right’ is supposed to be.
As we celebrate Human Rights Day we must be conscious of what ‘rights’ really are. They are not gifts from government. They are a shield against the coercive force of government. They are not voucher cards for people to start claiming labor and ‘help’ from others. They are a shield against the coercive force of popular demand. As an individual, you have the right to do as you please with your own property insofar as they don’t violate the same right of others. That is your right as a human.