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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

Bullying in schools: Everyone’s problem
2005-06-03

From left:  Prof Gerhardt de Klerk, Dean: Faculty of the Humanities; Prof Corene de Wet; Prof Rita Niemann, Head of the Department of Comparative Education and Educational Management in the School of Education and Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS

It is not only learners who are the victums of bullying in schools, but also the teachers. Prof. Corene de Wet from the Department Comparative Education and Educational Management at the University of the Free State reported, against the background of two studies on bullying in Free State secondary schools, that bullying is a general phenomena in these schools.

Prof. de Wet, who delivered her inaugural lecture on Wednesday night, is from the Department Comparative Education and Educational Management which resorts under the School of Education at the University of the Free State. She is the first women who became a full professor the School of Education.

Prof. de Wet says, “A student is being bullied or victimized when he or she is exposed, repeatedly and over time, to negative action on the part of one or more students. Bullying always includes the intentional use of aggression, an unbalanced relationship of power between the bully and the victim, and the causing of physical pain and/or emotional misery.

In some Free State schools there are victims and perpetrators of direct and indirect verbal, as well as emotional, physical and sexual bullying.

“Adults who say that bullying are part of the growing-up process and parents who set not only academic expectations but also social expectations to their children cause that victims are unwilling to acknowledge that they are being bulled. Many parents are also unaware of the levels of bullying their children are exposed to.

“Some of the learners were at least once a month the victim of direct verbal harassment, 32,45% were assaulted by co-learners and 11,21% of them were at east once per week beat, kicked, pushed and hurt in any other physical way. Free State learners are very vulnerable to bullies at taxis and on the school yard they are mostly exposed to bullies in bathrooms.

“Learners are usually bullied by members of the same gender. However, racial composition also plays a role in some Free State schools. A grade 12 girl writes, ‘There are boys in my school who act means against black people. When the teacher is out they take a red pen and write on the projector and spray it with spirits. It looks like blood and they would say it is AIDS and my friends and I have it.’

“Educators must take note of bullying in schools and must not shrug it off as unimportant. Principals or educators could be find guilty of negligence. A large number of educator respondents, 88,29%, indicated that they would intervene in cases of verbal bullying and 89,71% would intervene if they saw learners being physically bullied. However, only 19,97% of the learners who were victims of bullying were helped by educators/ other adults from their respective schools.

“The learners’ lack of trust in their educators’ abilities and willingness to assist them in the fight against bullying has important implications for education institutions. The importance of training must be emphasised.

Learners bully their educators to undermine their confidence. In Prof. de Wet’s study on educator-targeted bullying in Free State schools 24,85% of the respondents were physically abused by their learners, 33,44% were the victims of indirect verbal bullying, and 18,1% were at one time or another sexually harassed by their learners. These learner offences may lead to suspension.

“Educators are not only victims of bullying; some of them are the bullies. The South African Council for Educators prohibits bullying by educators. It is worrying that 55,83% of the educators who participated in the research project verbally victimised learners, 50,31% physically assaulted learners and a small percentage was guilty of sexual harassment.

“Every educator and learner in South Africa has the right to life, equal protection and benefit of the law, of dignity, as well as of freedom and security of the person. These rights will only be realised in a bully-free school milieu.

“To oppose bullying a comprehensive anti-bullying programme, collective responsibility and the establishment of a caring culture at schools and in the community is necessary,” said Prof. de Wet.
 

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