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18 June 2020 | Story Prof Karin van Marle and Prof Danie Brand | Photo Supplied
Prof Karen van Marle,left, and Prof Danie Brand.

What are our human rights in the COVID-19 crisis – not which rights do we have, but what are they as social institutions, what are they supposed to do for us? How do rights assist us in world-making? What kind of worlds can they make?

Thomas Hobbes uses rights to justify a strong unitary state. His main problem was how to ensure peace and order – in the current crisis perhaps how to prevent the spread of the virus and ensure our safety and freedom from infection. Hobbes is concerned about the ‘state of nature’, with no authority, no unity, and no foundational principles: a state of total disorder where “the life of man (sic) [is] solitary, brutish, and short”. For Hobbes, anyone with reason will seek to get out of this state of disorder by giving up all rights to the state so that it can create and maintain peace and order – pledging complete, permanent obedience in return for peace and order. In his view, the sovereign has the monopoly to make laws and to enforce them. Human rights here are a justification for the exercise of absolute state power: we hand over our rights so that the state may protect us from chaos. What our rights are, what they entitle us to, and what should be done to advance them – world-making – is handed over to the state. We become passive recipients of state rule.

John Locke also starts with the state of nature – not a state of chaos and danger, but one of orderly relations in the form of natural law. For him, humans are born equal and have natural rights to life, liberty, and property. Humans in Locke’s state of nature are not concerned with their safety and security against chaos but are driven by individual interest. Hence, we place our rights in trust with the state to protect our individual interests in the context of the individual rights of others. We may revolt against the state if it does not protect our individual rights.  Individual freedom and property are central, and individuals create worlds motivated by self-interest. Living in this world is not about sharing it with others, but about protecting and enjoying it for the self.

Jean-Jacques Rousseau sees the social contract as a means of creating equality and collective self-government. The natural freedom of the state of nature has been lost and civil society is enchained. It is only by giving up the natural right to freedom that the social contract can be made possible. At stake here is not individual autonomy or private interest, but general constraint of the common interest. The social contract here is an association where persons unite while remaining free, enabling association based on the common good. He introduces the general will as a way of overcoming decision-making based on individual interest: laws of the state must reflect a concrete community ethos. Rousseau underscores the importance of the state and its law upholding the common interest, not by authoritarian rule but through popular sovereignty. Here, members of a community work together to create a world that reflects a sense of common good. Living and the good life means a life where everyone shares and has equal stakes in the governance and enjoyment of the world.

In more contemporary transformative understandings, human rights require us to talk about and decide together about what is good for all of us, how we can best live together. The overriding concern is what kind of world do we, as a people, want to construct and maintain? As Jennifer Nedelsky (2011), for example, will have it – once a right has been identified, the conversation starts, not ends. This alternative to a classic liberal understanding of rights is to regard it as relational rather than boundary-like structures. It allows individual interests to overlap and sometimes even conflict with one another, but not in a model of stronger rights trumping weaker ones.

This third understanding of rights and how it regulates our relationship with others is closely aligned to the predominant understanding of rights in our Constitution. Its emphasis on state accountability, transparency in decision-making, engaged democracy, and the boundedness of state power clearly eschews Hobbesian absolute state power that is ostensibly exercised in the interest of us all. Its embrace of substantive equality, of rights to food, water, housing, education, and health care and of demands for redress of past injustices, show a concern not only for individual interest, but for fashioning ways of living better together. Its insistence that rights may only be limited for a public purpose, the achievement of which the limitation is rationally related, and the importance of which is proportionate to its impact on individual rights, shows a concern not only for the public good, but also for engendering conversation about what that public good entails and how best to achieve it.

Despite this, human rights in the COVID-19 crisis have mostly been asserted in either Hobbesian or Lockean terms. We hear of human rights in government’s angry response to criticism of the National Coronavirus Command Council, that its decisions should not be questioned and need not be transparent as they are taken in order to protect all our rights to life and health – i.e., we have ‘given up’ our rights so that we may be ‘protected’ from death and disorder. Hobbes also appears in the skop, skiet en donder of our police and defence force’s enforcement of regulations under lockdown. Again, the idea seems to be that we have given up our rights to the freedom and security of the person and freedom from state violence in return for being protected against the ravages of the virus. Locke’s notion of individual freedom haunts complaints about the limitations placed on, for example, individuals’ freedom of movement, freedom of association, freedom to trade – the threats by big business to disregard lockdown rules and to commence operations because the lockdown breaches their rights to individual freedom and ‘freedom to transact’. Despite vague calls for the articulation of a ‘new social compact’ or a ‘new economic vision’, we have not seen real alternatives to the understandings of Hobbes and Locke referred to above.  Calls for a new social compact and new economic vision have not been made on the basis of rights, or any normative basis, but rather explicitly on so-called ‘non-ideological’ terms, with an emphasis on efficiency and ‘what will work’.

Perhaps, to end, in this lack is where opportunity – bound to lurk in any crisis – is also found in this crisis. Crisis is, after all, at the root of critique.  The collective shock to our systems may just re-alert us to the need to continuously assert our rights, but not without the necessary critical reflection. We should assert our rights against the wanton exercise of state power and even against other people if they do us harm, but in ways that invite conversation about what is good for all of us and how we can not only build better worlds and live better, but build them better and live better together.  

Opinion article by Prof Karin van Marle, Department of Public Law, Faculty of Law, and Prof Danie Brand, Director: Free State Centre for Human Rights 


News Archive

Graduates should make a difference as leaders and be agents of change
2017-06-22

Description: Mid-year graduation read more 22 June 2017 Tags: Mid-year graduation read more 22 June 2017

More than 5 000 degrees will be conferred over six days
and eleven ceremonies at the UFS mid-year graduation
ceremonies.
Photo: Johan Roux

Livestream of Graduation Ceremonies

“Make the choice to make a difference as the leaders of the future.” These words of Dr Susan Vosloo, Cardiothoracic Surgeon and member of the University of the Free State (UFS) Council, echoed the call to graduates on the first three days of the UFS mid-year graduation ceremonies. The ceremonies are taking place in the Callie Human Centre on the Bloemfontein Campus from 19 to 26 June 2017.

Dr Vosloo, also an alumna of the UFS, was one of six guest speakers at the biggest set of graduation ceremonies in the university’s history. A spirit of excitement is part of the festivities, as a total of 5 258 degrees will be conferred over six days in eleven ceremonies. The graduation week will conclude on 26 June 2017, when 460 master’s and doctoral degrees will be conferred – 72 of these are doctoral degrees.

Stand up and be counted
Dr Vosloo urged the graduands at the afternoon session on 19 June 2017 to stand up and be counted. “What we need are leaders who treasure integrity, dignity, accountability, transparency, and who will focus on the common challenges which we all face today.”

Dr Khotso Mokhele, UFS Chancellor, also encouraged the graduates to be agents of change who shouldn’t conform to the current system. “Decide that it is your country and that you will decide what it should be. Then it will not be the corrupt experiment which the current government turned it into. We wish you well. Go and be the agents of transformation.”

Ambassadors of the UFS
Prof Francis Petersen, UFS Rector and Vice-Chancellor, asked the graduates to make a contribution: “Be excellent ambassadors of the UFS, and make the UFS, your families, and our country proud by your strong, innovative, ethical, and excellent contributions.” He was the guest speaker during the morning and afternoon sessions on 20 June 2017.

He also said that they should never forget the supporting role others played in their success, whatever form it took.

Do it for those who fought for SA
Justice Connie Mocumie, Judge of Appeal at the Supreme Court of Appeal, encouraged the graduates to go out and contribute to the development of the country. She was the guest speaker at the morning and afternoon ceremonies on 21 June 2017.

“It is important for you to continue being experts in your area of expertise,” she said.

“Today is the beginning of better days to come. Do it for the legacy of those who fought for our country in pursuit of a better South Africa.”

Dipiloane Phutsisi, Principal and Chief Executive Officer of the Motheo TVET College in the Free State, said everyone is destined for greatness. “In the words of Dr Martin Luther King: Everyone has the power for greatness, not for fame but greatness, because greatness is determined by service.” She was the guest speaker at the morning session on 19 June 2017.

Click here to see a list of Deans’ and Senate medals awarded.

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