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.

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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.

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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 




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