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As unemployment rises, economic growth shrinks to near-zero, and political corruption thrives in sight of all conscious citizens, in yet another case of uniquely-South African outrage over a non-issue, a Cape Town bar owner is now the subject of controversy for displaying the old South African flag in his establishment.

There can be no doubt that what the previous flag represents (contemporarily; there is some more nuance to the flag) is avowedly statist and authoritarian. But a flag is property, and can be used by the owner as and when he sees fit.

Private property

I will not explore all the key features of private property in this article. I have done so before. Here it is relevant to simply note that the most crucial practical function of private property is to avoid conflict.

Where someone has a property right in something, they have final authority over what they will do to or with that thing, to the exclusion of all others, and to the extent that they do not violate the same right of others. This avoids conflict because it brings clarity to the inevitable confusion over what people are entitled to do or not to do in the course of engagement.

In the case of this bar, patrons were deeply offended by the display of the flag, and with good reason.

Private property, however, to ensure that this tension between the owner and the patrons does not spill into physical conflict, unequivocally states that the owner can display what he wishes on his property, and that the patrons cannot dictate to him. Private property does not pass moral judgment on the content of what he does with his property – that’s not part of the inquiry. It does, however, give the patrons the perfectly legitimate option of leaving the establishment, boycotting the bar, or even competing with the bar, among many others.

Using violence, directly, or indirectly by way of the State, is all that private property prohibits.

Positive law vs natural law

Professor Pierre de Vos, however, writes that this “conception of rights” was “in fashion” half a century ago, implying that it is archaic and no longer relevant. He writes:

“Such individuals claim that the owner of Brian’s Pub has a right to display whatever he wishes on the walls of his pub because he is the owner of the space. They also deploy the language of choice (‘if you don’t like it, don’t go’), which gestures towards a particular conception of rights; a conception of rights which used to be in fashion about 50 years ago.

These rights claims happen to be false. In South Africa the owner of a private business does not have the right to do what he or she wishes on the premises of the business. In fact, in South Africa the Promotion of Equality and Prevention of Unfair Discrimination Act (amongst others) curtails the rights of business owners in significant ways.”

He approaches this from a positivist perspective – although he will likely not admit to this – by citing the Promotion of Equality and Protection from Unfair Discrimination Act. In other words, De Vos cites man-made law as the determiner of rights, which is obviously self-defeating: How can Saudi Arabia, for example, be violating the rights of women if Saudi law does not recognize the rights of women? Indeed, according to this logic, was Apartheid truly a crime against humanity if South African positive law legitimized the system?

De Vos obviously wouldn’t think that these systems of oppression are legitimate, and would, in the natural law tradition, say that there is a higher plane of law to which positive law must adhere. I don’t know why he doesn’t apply this principle to the matter at hand, but I suspect confirmation bias: The positive law (including the Constitution) is on his side of this particular case, so why inquire into the natural law implications?

This reminds me of so-called ‘libertarians’ in the United States who, after Donald Trump was elected president, are turning a blind eye to his violations of personal and economic freedom. They did not extend the same privilege to Barack Obama. It’s the classic ‘my guy’ mentality of modern politics, and in De Vos’ case, ‘my law.’

Rights are fixed and do not change with time

What De Vos criticizes is not a ‘conception’ of rights – it is simply how rights work. Oxygen being necessary to sustain life is not a ‘conception’ of living, it is simply how living works. Instead, De Vos is criticizing the notion of ‘rights’ per se. To him, rights are not fixed, and instead ‘depend’ on various circumstances at play.

If we are to accept De Vos’ notion that private property as explained above is sooo last century, the entire concept of rights would be defeated.

According to Dr Nigel Ashford, rights comprehend three criteria. Firstly, they are universal in both time and space; secondly, they are absolute and are only limited when they conflict with one another (and not “public interest”); and thirdly, they are inalienable and cannot be surrendered.

If rights simply disappear with the elapse of time – and 50 years is a very short amount of time – they become meaningless and thus society is robbed of an objective standard by which to measure legitimate and illegitimate conduct in public policy.

If rights come and go with time, then, again, one must ask: What made colonialism bad? What made Apartheid bad? Surely, it is the fact that these ideologies violated rights, even within the context of their own time. It does not matter when they existed, or if they are to exist again in the future – they are simply illegitimate.

The difference between having the right, and doing the right thing

De Vos does, however, make a correct observation:

“… just because you have a right to do something does not mean that it is right to do it. So, even if we assume that the owner of Brian’s Pub had a right to display the old South African flag and to celebrate white supremacy in this manner, this would not mean that displaying the old flag should not be subjected to severe criticism.”

We do not need to ‘assume’ that the owner of the bar had the right to display the flag – he did have the right to display the flag. He purchased or otherwise acquired the flag legitimately, and he purchased or otherwise acquired the bar legitimately. That is the end of the inquiry. He does have the right, if not in our law, certainly in nature.

It is, however, not right for him to display the flag.

It is ignorant at best, with him being completely disconnected from the sensitivities and preferences of the market, and spiteful at worst, with him using his property to show off his idiotic rebelliousness and his preference for a legal order under which rights were meaningless.

He deserves the criticism he is receiving for displaying the flag. But as a rights-bearing individual, he is entitled to be free from coercion by his fellow citizens or the State. When he goes to bed at night, he should ponder hard about the decision he made to display the flag, but he should sleep soundly knowing that his property will not be confiscated or deprived through some anti-freedom regulation.

Conclusion

Rights are not relative. Bigots, like decent people, have rights, and enjoy all the entitlements of those rights. Rights cannot be revoked simply because one uses them in a displeasing way. The very nature of freedom is that individuals are allowed to do things which a majority of others do not agree with.

The concept of freedom would be meaningless if it meant one can only do popular things. Instead, rights exist specifically to protect people doing those things which the political class or the majority in society do not approve of.

  • Tim Crowe

    Excellent piece!

    To add a bit, in April, the Constitutional Court ruled against the ‘Shackville Five’ (Alexandria Hotz, Masixole Mlandu, Chumani Maxwele, Slovo Magida and Zola Shokane); requiring them to pay their own court costs in the High Court relating to their illegal acts.

    However, the UCT’s Executive’s request that the Five be restrained from entering any of the University’s premises was denied because it infringed on the Five’s rights of freedom of movement and association with others, and was a “substantial intervention in their social lives”.

    No mention was made of rights of professional and “social” rights of UCT’s “Silenced
    Majority” that were trampled on and incinerated by the Five.

    Nevertheless, the Five face contempt of court charges should they commit new offenses.

    Let’s see what happens on 7 August 2017, since Fallist’s have said that they will close down UCT in support for a strike by insourced workers.

    Price says: “We will take action against those who try to interfere with the academic project. If there is evidence of an attempt to shut the university down, we will seek an
    interdict to prevent such activities. Students who disrupt academic activities
    will be suspended and subjected to disciplinary action.”

    Will he act this time to protect the “Silenced Majority”? Will de Vos defend the Fallists yet again?

    Don’t hold your breath.

  • Steven van Staden

    Bravo to Martin and Tim. Boo to De Vos. Incidentally, if the old flag represents only the worst of the past, by the same token the new flag (what does IT represent?) might be considered equally offensive to some of us. It certainly doesn’t elicit any respect by my criteria.

  • Harald Sitta

    brilliant and prof. pdv is an idiot, in the classic Greek sense …

  • James Groenewald

    The difference lies in the distinction between liberty and license, and we seem yet to get to grips with this.
    If the terms of Brian’s license to operate a bar include the restriction of displaying the old flag, then the state has a right to take him to task, but the authority to do so only resides in the state, not in any member of the general public. That is what the rule of law is all about.
    The public can lay a charge, that is all. Anything more is mob rule, which is license disguised as liberty.
    That the government can make a law restricting Brian’s pub from displaying what it wants to, is a curtailment of liberty and intrudes on freedom of opinion and speech.
    We may as well go back to the Spanish Inquisition style of doing things.