The Constitution of South Africa has the supremacy of the Rule of Law as one of its founding values. The Rule of Law is a substantive and procedural foundational norm that stands in equal but separate supremacy with the Constitution itself. The government's COVID-19 lockdown, and arguably those of foreign governments, do not conform to the substantive triumvirate of values that undergirds the Rule of Law, namely respect for the rights to life, liberty, and property. Life, liberty, and property also constitute a triumvirate without which existence itself is impossible.
Reason is at the core of the Rule of Law, and yet the rights of large swathes of individuals across the country and the world were stripped away unilaterally, all without it being shown conclusively that a lockdown was necessary to preserve the rights of others.
The Rule of Law is best described as not being the rule of man. The distinguishing factor between the Rule of Law and that of man is freedom. That is, the liberty to pursue various endeavours of life which may include accumulating property, with rules being made to protect such pursuits rather inhibiting them. The distinguishing factor is often described as reason, which is correct, but reason is grounded in protecting and preserving the triumvirate of existence.
Firstly, to understand the Rule of Law and its difference from tyranny, one ought to understand what the law is. The law can be best described as rules that are meant to regulate and thus minimise conflict. At its core, law is defined by conflict and it arises and operates out of and due to conflict.
Take as an example the universal law against murder. Murder would not be a crime if two individuals never attacked one another (conflict), neither is it concerned with any other matter of human affairs beyond this conflict between two or more individuals. Law arises out of conflict, it extinguishes unlawfulness (aggression against person or property) which caused the conflict and thus it is negative in that regard for it is concerned with what shouldn’t instead of what should. Theft for instance only arises when its definitional principles are met and 'disappears' when they aren't, it does not tell individuals how to transfer their property, it only deems unlawful a transfer of property that is without consent, which of course would cause conflict, hence the argument that law arises out of a conflict.
The Rule of Law is thus concerned with the basis upon which this use of force, the force of arrest or execution, rests. Since laws arise out of a conflict between two parties with equal liberty, for these laws to be just, they must be aimed at mitigating conflict and that alone. The moment one party uses the force and aggression of 'law' without a pre-existing conflict but rather to implement their subjective preferences or grand designs, tyranny reigns and the rule of man is entrenched. Therefore, in understanding how rules of just conduct arise, in the conflict of actions between two parties, one sees the difference between the Rule of the Law and a rule of man.
The lockdown was instituted under the pretext of preparing healthcare capacity for the (false) projected deaths that would arise as a result of the outbreak of COVID-19. The virus outbreak was deemed a national disaster and people's lives changed forever, because entrepreneurs lost everything as result of the unjust actions of others - not a virus. Individuals were deemed threats overnight, en masse, without evidence being presented as to their guilt. Guilt was assumed instead. Life, liberty, and property were inhibited by the state without individuals inhibiting that of others. The state did not at any juncture prove that the individuals who had their rights stripped actually were positive carriers of the virus. Therefore, no prima facie case existed for their rights to be stripped away.
The question must be asked: Was the lockdown an instance of the Rule of Law or that of the rule of man? It seems to me that it was the best example of the rule of man presented to us in recent history. Politicians across the world, aided by 'models' the application of which to human beings with liberty and will remains questionable, were shown to have been horribly wrong in their projections. Limited and stripped of their freedoms to movement and association, people around the world were summarily criminalised. No reasonable link between this mass criminalisation and the purported threat was ever established, with individual test results representing the bare minimum evidence for such an endeavour. Instead of proving that we as individuals were a threat to others by not wearing masks, it was assumed that we were and thus our freedoms ought to have been limited.
The lockdown shifted the presumption that states governed by the Rule of Law operate under with their citizens. From one of innocence until guilt is proven, to one of guilt until innocence is proven. From a conceptual position, the lockdown is inconsistent with the Rule of Law, a foundational value of our constitutional order. The consequences of the lockdown which are anything but great, are merely further evidence to show the flawed conceptual paradigm under which it was conceived. The clearly arbitrary nature of allowing some to work while prohibiting others, even though there is an ever-present threat, is indicative of this.
The rule of man is not conducive to prosperity, nor to an observance of rights if the numerous instances of police abuse are anything to go by. How long will the Rule of Law be ignored just because it isn't convenient is the question. In posing it, another one is implied: Does the Rule of Law mean anything if it can be ignored whenever it proves to be inconvenient to some in the circumstances? As the lockdown continues and gets normalised, I am afraid the rule of man is being entrenched, to the detriment of our liberties.
This article was first published on City Press on 7 September 2020