What you can do with rights – Justice Edwin Cameron
7 February 2012
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.
Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.
The lecture started by sounding a note of caution against vesting too much trust in law and lawyers. Which seems perfectly sensible. Justice Cameron noted the long-held scepticism of rights: from Bentham’s dismissal of natural rights as “nonsense on stilts” to our most recent appointee to the Supreme Court, Lord Sumption, whose recent lecture warned against judicial overreach.
Justice Cameron broadly agreed with this proposition. He said that law was not social policy but its essential role is more limited: to resolve conflict and protect individuals against the State. In this way, he set up the thesis of his talk: that if this healthy scepticism is maintained, and the scope of the law is kept within boundaries, then a modest role for legal rights can be defended, as being a practical way of deciding what a decent society secures for its citizens. The talk covered three topics to support this view: the role of legal rights; law as a corrective of public irrationality and law as civic duty. For each area, the judge drew on the South African experience.
The role of legal rights
Justice Cameron tackled perhaps the most difficult area in defining the scope of legal rights: economic and social rights (ESR). The role of legal rights in securing freedom from torture, arbitrary taking of life or even freedom of expression is hardly controversial: law is surely an integral part of society’s protection of these fundamental rights, and perhaps the best way of deciding the content of these rights fairly (fairness itself being a legal right in countries abiding by the rule of law).
Economic and social rights are more complex. Here, both the content and application of rights are more difficult to pin down. South Africa’s constitution did not initially contain protection of such rights. However, the final version, ratified by the Constitutional Court in 1996, contained rights to housing, food, and further education. Justice Cameron noted that early decisions on these areas did not produce unending obligations on government to provide material wealth to people: the denial of dialysis to a person who had no chance of a cure, and Grootboom, a landmark ruling deciding that it was not necessary to provide the claimant with a house showed that even ESR can be limited in application.
However, Justice Cameron noted that the decisions of the Constitutional Court had a concrete effect on government policy, requiring housing and other welfare provision gradually to increase over the years. In this, though controversial and “far from perfect” according to the Justice, ESR provide a tool for material improvement in the lives of the poorest.
Justice Cameron reserved his most stinging rhetoric for the second topic: the effect of ‘rights-talk’ on social policy, as a corrective for public irrationality. He started this section by stating that “in 1999, President Thabo Mbeki plunged South Africa into a ghastly nightmare.” The reference was to Mbeki’s stance on AIDS; lending credence to a discredited, unscrupulous, denialist tranche of businesspeople, lawyers, activists and scientists.
The effects of AIDS denialism were horrific; the tactics equally so. The rate of infection increased rapidly until it was around 25% in 2001, with mother to child transmission not being prevented effectively. The methods of denialists included a consistent campaign against NGO treatment access campaigners the Treatment Action Campaign (TAC).
Justice Cameron described how the TAC, exasperated at the denialists and their effect on government ministers, turned to the courts. In a judgment delivered in July 2002, the Constitutional Court decided that anti-retroviral drugs had to be made available to the public. In doing so, Justice Cameron suggests the judiciary stood up, unlike other political elites in the country, and struck a victory not only for treatment access but also for “rational public discourse.” This was the discursive and ideological impact of legal rights, that go beyond their material effect, and spread into HIV-related discrimination.
Justice Cameron brought this area further to life by talking about his own experience, of being HIV positive and being saved from the inevitable disease and death of AIDS by anti-retrovirals. The decision of the Court was, in his words, a “rebuke agains the absurd obfuscation” of the government. Powerful words indeed.
The final part of the talk was the most ephemeral. Justice Cameron argued that rights-talk can also be used in conferring the dignity of what he termed “moral citizenship”. Rights do not just provide freedom; concept of moral citizenship is richer, subtler and perhaps deeper. To illustrate the argument, Justice Cameron again drew on his own experience; this time as an LGBT rights campaigner and from his experience as a gay person experiencing homophobic sentiment.
Justice Cameron spoke of his difficulty living in a society that repressed homosexuality. He then explained that in October 1990, when the outgoing National Party government had just agreed to legalise the African National Congress party, he took part in South Africa’s first LGBT rights March. He spoke of his feeling, when he saw that the police had cordoned off parts of the city for the march, that he glimpsed the moral citizenship that he had been denied at times in his life.
The point is not confined to LGBT rights. Justice Cameron explained that in outlawing the death penalty, the Court had argued that the core of constitutionalism was the protection of all humans, including the worst and weakest amongst us. In a development that would resonate with the UK’s perpetual discussion on the rights of immigrants, Justice Cameron also brought the rights that have been afforded non-citizens into this argument on moral citizenship.
The lecture was an interesting tour through the South African journey from apartheid to constitutional democracy. Justice Cameron’s experience is intimately linked with significant parts of the journey. It is easy to find flaws when a lecture takes on as ambitious a remit as this one.
Justice Cameron himself said that what he had to say was not only modest, but obvious. And this may be right. The central conclusion of the talk was that legal rights are important in securing material gains for the poorest in society, for avoiding the despotism of past eras (and many current regimes), and yet cannot achieve all valuable aims of social policy. This may be a vague answer, but the correct answers to the toughest questions may often be imprecise, and may be more credible for so being.
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