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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

SRC visits the US as part of Global Leadership Preparation Programme
2012-06-07

The Student Representative Councils (SRC) of the University of the Free State’s (UFS) Bloemfontein and Qwaqwa Campuses will be travelling to the United States from 10-24 June 2012 on an intensive leadership development programme.

The Global Leadership Preparation Programme, initiated by the Vice-Chancellor and Rector, Prof. Jonathan Jansen, has been designed to ensure that South Africa’s next generation of leaders understand their unique place in a global context, the interconnectedness of global and local society and various possibilities for change.
 
The group of 36 students will be visiting Washington DC, Boston and New York.
 
“As a university we recognise that students who lead on campus must be prepared to also lead the country, which requires amongst others greater understanding of the impact and influence of global developments (social, economic, political) on nation states and campuses. This includes knowledge to deepen democratic participation and real representation – issues we know that often are contested in important student governance structures such as SRCs,” says Mr Rudi Buys, Dean of Student Affairs.
 
The group will be studying among others the impact, influence and limits of the United Nations in global leadership; the impact of transnational companies on economic policies of African countries; the impact of American universities on African leadership; the impact of international philanthropy on African development and the impact of American public institutions on learning among the disadvantaged: lessons for South Africa.
 
The programme complements and strengthens other leadership preparation programmes of the UFS, such as the Leadership for Change Programme and the Gateway College Programme – an intensive orientation programme for all undergraduate students. It will give students a competitive advantage in leadership over more local programmes and initiatives that seldom look beyond the campus, or even beyond the country, in preparing the next generation of leadership.
 
“We value this initiative by the university leadership to give us the opportunity to explore and spread our wings and gather as much knowledge as we can get to raise the bar in terms of student governance and leadership. The university is amongst the few in the country that sees the need to strengthen and develop its student leadership by exposing it and allowing it to understand its role in a global context. This is a chance that we take seriously and we intend to use it to the betterment of the institution,” says Bongani Ngcanga, President of the Central SRC.
 
“While we welcomed the initiative taken by the university to design this programme, the SRC questioned and debated heavily on the merits and real contribution of such a programme. Only on approval of the academic and development profile of the programme did we accept its merits and now are excited about the value thereof. This opportunity goes beyond the term of the SRC and will develop and equip us for the great positions we will hold in the future. I am looking forward to meeting influential lobbyists, profound academics and strong politicians,” says Richard Chemaly, SRC President of the Bloemfontein Campus.
 
Upon their return, the SRCs will set a new benchmark for future councils, raising the bar to that of internationally acclaimed student leadership. One of the objectives of the programme is to produce written, reflective statements about the learning that resulted from the trip and to start dialogues in order to improve student governance and governance as a whole. Workshops will also be presented for aspirant student leaders on leadership lessons learnt from an international perspective.
 
Members of the SRCs are covering part in the cost of the programme and generous contributions have also been received from outside the university.

Media Release
07 June 2012
Issued by: Lacea Loader
Director: Strategic Communication
Tel: +27(0)51 401 2584
Cell: +27(0)83 645 2454
E-mail: news@ufs.ac.za

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