Saturday, 21 March, is Human Rights Day in South Africa. Marking the anniversary of the Sharpeville massacre, this day is meant to be a celebration of the supposed victory of human rights over authoritarian imposition. Occasions like these are good opportunities to ponder the nature and discourse around rights.
The title of this column might at first glance appear trite. Indeed, many liberals and libertarians, from John Locke to Randy Barnett, have defended what has come to be called the presumption of liberty. But this has by no means stuck, even among those who claim to have adopted the principle.
Last year, I was in a televised debate with a highly credentialed and experienced attorney who is a staunch defender of the vibes of the Constitution. They would regularly point out that ours is a constitution that requires accountability and justification. But after our segment on air – the topic, naturally, was expropriation without compensation (EWC) – I made the point that EWC had already started happening in South Africa and provided the example of the nationalisation of water in 1998.
By what right?
Almost as if by knee-jerk, the attorney replied, “Why would anyone want to own water?”
And it is in that question alone that this fundamental misunderstanding about rights is manifest.
A very specific thought led me to classical liberalism – my “Damascus moment”: I had just read, as a statist social democrat, some chapters of Murray Rothbard’s The Ethics of Liberty, and had to ask myself this question:
What entitles me – or what right do I have – to dictate to other people?
That’s it – that’s the specific thought.
I could not then and still cannot now, answer the question.
This led me down the path of learning about the justifications for liberty and self-ownership and all the wonderful ideas that make up the philosophy of freedom. But that was not the thought.
The thought was not: What entitles me – or what right do I have – to be free? The focus was not my self-determination. This is the question I nonetheless went on to answer, in works by Rothbard, FA Hayek, Frederic Bastiat, Ayn Rand, and many others besides.
No, the thought was the reverse: What entitles me – or what right do I have – to dictate to others? The question was, what justifies me denying anyone else their self-determination?
Mere reason
Why does this seemingly academic distinction matter?
Liberals and libertarians, romantically and idealistically, spend inordinate amounts of time justifying freedom. This is important and valuable mental work that I am known to engage in myself.
But our opponents spend no time whatsoever justifying what entitles them to invalidate liberty. Their discourse, instead, is always premised on the supposed deficiencies of our justification for freedom. Virtually every socialist or authoritarian book on political philosophy is premised on a critique of what it perceives to be liberalism. Rarely, if ever, is it premised on whether their own justification for imposition is appropriately grounded.
And a justification for imposition cannot just be a “reason”.
There are reasons for everything. The reason to ban cigarette sales, for example, is to preserve public health. That is a good reason – a very good reason! But it tells us nothing.
Simply because I have a desire to preserve public health does not generate, out of thin air, an entitlement or right for me to impose that desire on others.
A mere desirable goal – and there is an infinite supply of these – as “reason” gets nowhere without a firm normative foundation. Mere reasons only establish “why” someone might be doing something; they do not establish “that” they may do that thing.
If you wish to establish that you may in fact prohibit someone else from doing something, you have to draw a clear line from your own and that person’s default freedom to the prohibition. The fact that “experts” or even “the majority” of the population agree with you does not change this equation – the experts and majority need to undergo the same exercise of justification.
After all, nemo plus iuris transfere (ad alium) potest quam ipse habet. This is the wisdom of the ancients.
This brings us back to the nationalisation of water in South Africa.
It is not for the rights-bearer to justify why they “want” to own water. Unless water is a legal subject – it is not and cannot be – it is a legal object, and therefore may be owned. It is rather for the political elite intending to deprive the rights-bearer of their water to justify – not merely provide reasons for – their conduct.
Even the flawed liberal-turned-social democrat John Stuart Mill understood this at base (though he had trouble with consistency), with Joel Feinberg expressing Millian thinking as, “Liberty should be the norm; coercion always needs some special justification.”
Natural law and natural rights
The discourse around what has been called “natural law”, and the closely related but distinct “natural rights”, has been understandably contentious.
The most important criticism of this kind of thinking is that it could be totally arbitrary: We have no real way of measuring what is and is not part of natural law, so it just falls to every person to declare that natural law requires this or that. While I think this criticism is too dismissive of discovering reality through the application of human reason, there is a kernel of truth to it.
Professor Herlinde Pauer-Studer wrote what is in my view the best book on the jurisprudence of National Socialism, Justifying Injustice: Legal Theory in Nazi Germany.
But it was only at the end of this book that she set out the argument relevant to this column: the Nazis were not guilty of “positivism” as they are so often accused of. In fact, they adopted a thoroughly naturalistic approach to law that rejected blackletter formalism. Pauer-Studer notes insightfully that if the Nazis were true-believing positivists, much of their genocidal enterprise would likely not have been possible, given how limitation is backed into the very idea of a government acting according to law – even if that law is horrible.
While I have my reservations about this argument, it is well-made and deserves consideration.
Safer method
To my mind, then, what has been set out above is a much better (and safer) way to think and talk about natural law and natural rights and rights more generally, that would avoid this difficulty entirely.
Simply, the rights discourse has assumed for the longest time that it is those who wish to be free who have to justify why they have the right, and even that they have the right.
You say you have a right to privacy? Says who? Where did your supposed “right” come from? You say you have a right to property? Who told you this? When did the heavens declare that you have this right?
Those who favour freedom have responded in various – some ingenious, utterly convincing – ways. But if we wish to avoid the pitfall of “everything is natural law”, it might serve us to think and advocate along these lines instead:
Indeed, it is difficult to discover what is and is not a natural right, or what is and is not natural law, or even just what “rights” people have in general. But what is not difficult, is that you do not have a right to impose or coerce another, and if you believe you do, the onus is on you to establish it.
Whatever the scope and ambit of natural rights might be, this appears to me to be its minimum that we can reliably appeal to. This excuses us from having to establish discrete “rights” that we supposedly have to do specific things.
After all, the default state in nature is action. People act. People do things. This was never not true.
So, to interfere with people acting is the deviation. If anything needs to be justified, it is the interference, not the default of action – unless such action itself amounts to interference with another, hence the beautiful coherence of the classical liberal conception of freedom.
It is absolutely true that restrictions on action arise naturally given the social nature of human beings, but these restrictions, by their very nature, despite being perfectly natural, come after the action. The decision – whether explicit and considered, or spontaneous and organic – to restrict was made in reaction and response to the action being restricted. Ergo, action is the default, restriction is the deviation.
Right and responsibility
There is only one right, not multiple “rights”.
Legal science has had to develop discrete rights – called “subjective rights” – in the interest of the development and coherence of legal doctrine. But these – at least properly conceived subjective rights – are all manifestations of the core and all-encompassing single right: the right to freedom of action.
Responsibility, as I have argued previously, is not simply a corollary to right. Where right is properly understood, responsibility is baked in, to the point that it is sometimes conceptually difficult to distinguish between the two. There is no right without responsibility, and no responsibility without right.
To make it less academic: You have no responsibility to pay for your child’s rearing if you have no right to direct – at least to the degree that you pay – the nature of that rearing; and you have no right to healthcare if you have no responsibility to provide for that healthcare.
Any supposed “right” that absolves you of responsibility is no right at all. And any supposed “responsibility” that does not inherently entail right, is not a responsibility you should accept.
On Human Rights Day 2026, South Africa finds itself in a highly confused rights and responsibilities discourse, where there are supposed “rights” all around that involve little liberty, no responsibilities, and a state apparatus that may do as it pleases without justification.
Given how our state structures, and even much of our civil society, has come to be organised, if we do the hard work of ensuring the health of this discourse – insisting that violations of liberty be justified first and foremost, and that the responsibility inherent in right not be excised – we might just see tangible freedom and prosperity benefit as a result.
[Image: https://www.pexels.com/photo/close-up-photo-of-red-neon-light-signage-3690005/]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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