When rights go wrong

It was not that long ago that South Africa was still in the grips of a totalitarian regime with no regard for human rights or human liberties. Even the perpetrators of that system have acknowledged that it was morally bankrupt. The world watched as black South Africans cried out that their human rights were being violated. And the world cheered as they fought against the state to secure these rights for themselves and for their children.

What did those in the Struggle mean when they said that their rights were being violated? Did they simply mean that some law had been violated? NO! The measures they opposed with their very lives were the law. It was the law itself which violated their rights. It was the enforcement of law, not its violation, which transgressed human rights. Opponents of apartheid were claiming that even legislation passed in a formal manner can be used to destroy human rights and liberties.

Now what does this imply? One obvious fact is that this means that human rights are more than legal grants. The theory that rights are whatever the State grants to its citizens is contrary to the Struggle. People didn’t die in the war against apartheid simply in order for us to have a situation where a human right is whatever the state says is one. If this principle were true then apartheid itself was not a violation of rights. But if law can violate rights then it cannot be the source of rights. To argue that law is the source of rights would mean that rights only exist at the express whim of legislators. That would mean that the legislators in old South Africa did not violate rights. This concept of rights completely undermines the moral foundation of the anti-apartheid movement. It changes those who died from freedom fighters into terrorists as the old regime claimed they were. The very Struggle itself is a testament that rights are not the children of law but that laws, properly understood, are the children of rights.

The great French thinker Frederic Bastiat made this point in his important essay The Law: “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.”

Extract from The liberal tide: From tyranny to liberty, edited by Jim Peron.

FMF Policy Bulletin / 12 July 2012