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.
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.
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.