The law shall afford adequate protection of classical individual rights.

OVERVIEW

The doctrine of human rights has recently been expanded to include various perceived ‘necessities’ of modern-day living. So-called “second generation rights” includes rights such as housing, sustenance and employment. In this respect, it has gone beyond what was originally comprehended by the concept of individual rights; it has also been made contingent upon the ability of the state to provide these services.

Properly understood, an individual right must be self-evident and can depend only upon the assertion made by each individual, based upon the principle of individual liberty. As soon as it becomes dependent upon extraneous factors it ceases to be self-sustaining and cannot then be asserted as a principle of the Law of Nature. Individual rights are rights that attach naturally to each individual on account of their humanity. For example, the “right” to internet access cannot be construed, by any measure, as an individual right.

The Rule of Law comprehends the protection of classical individual rights – i.e. actual human rights as properly understood.

ELEMENTS OF THE IMPERATIVE

Adequate protection – An individual right can be said to be adequately protected when a reasonable person, in possession of all the relevant facts, would consider it to be so.

Classical individual rights – All humans are born with inherent rights which can be deduced from their common humanity. This includes the right to not be physically harmed and the right to own and use property unmolested. The principle of universalisation means that all humans have essentially the same rights, and thus, no individual and, in particular, no authority, may legitimately violate these rights. Individual rights such as freedom of speech, privacy, and freedom of movement all follow from individual rights to person and property. Political rights – to elect the government is also a classical individual right, because the legitimacy of government (an institution which limits individual rights in exchange for the protection of the state) depends for its legitimacy upon the consent of the governed.

RELEVANT JURISPRUDENCE

Sections 9(1), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25(1), 30, 31, 34, 35 of the Constitution.

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The Rule of Law Project is an initiative of the Free Market Foundation (www.freemarketfoundation.com) and is dedicated to giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides for the supremacy of the Constitution and the Rule of Law.