**3. Which human rights are pertinent to meaningful human existence?**

After analysing various definitions proposed by researchers, Doğanay and Öztürk [37] follow a philosophical natural rights approach as underscored by numerous philosophers [38–42] by defining human rights as entailing, par excellence, universal concepts of fairness and equality. In doing so, focus is placed on the generalisation and global application of human rights as well as its origin being the very existence of humans (life, self-esteem, and the intrinsic value of dignity [6]) in relation to equality (all human beings are born equal and should be treated equally—a concept initially based on the spiritual assumption that all humans possess a soul and are part of Christ's redemption plan [5]), which they consider to be the main feature of all human rights. Based on the intrinsic worth shared by all human beings, Metz [21] contends that humans are entitled to significant moral claims to receive equal treatment. This entails treating all humans in a special manner by virtue of their capacity to cooperative rather than by an endeavouring to balance conflicting human needs and interests within society.

To Staerkle et al. [28], the rights to individual freedom and political participation are prominent as they are inherent to human nature. Ercan et al. [16], in turn, emphasise the essence of human dignity, tolerance, peace, respecting others' rights, brotherhood, solidarity, and friendship. From a philosophical point of view, the rights to human freedom/liberty and property also merits prominence although it has all along been recognised that humans naturally possess liberty [3]. Guaranteeing human freedoms has, nevertheless, became essential as humans, according to Rousseau [43], longed for their natural freedom when entering into a social contract with others, thus accepting legal systems governing their behaviour.

In the South African context, the newly appointed democratic government of 1994 adopted a final Constitution in 1996, in which mostly individual fundamental rights

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*Humans: The Biggest Barrier to Realising Human Rights - A South African Perspective*

equality, human dignity, and the achievement of each human's potential.

are guaranteed. This Constitution is regarded as a transformational document aiming at replacing the previous apartheid regime due to colonisation, riddled with racism and the unequal treatment of humans based on their individual characteristics. It is a value-driven Constitution guaranteeing fundamental rights to every human being and pertinently providing for constitutional values including transparency, democracy,

Given their prominence in the new South Africa, the rights to equality (section 9), human dignity (section 10), and life (section 11) are firstly assured. Due to its history of past inequalities towards humans and their current diverse population, the right to equality deserved special attention. It entails respecting the equal worth (mutual recognition) of all humans although they differ regarding their nature, life conditions, social circumstances, as well as personal biographies and decisions [30]. Although the Constitution does not provide for a hierarchical structure of human rights, the standing of human dignity and the right to life was elevated above all other fundamental rights in the landmark case of *S v Makwanyane,* 1995 (3) SA 391 (CC) (para. 144). The Constitutional Court made a specific mention of the political and social factors dominant in South Africa which caused a climate of aggression, revenge, and vengeance disregarding the worth and life opportunities of its inhabitants. In view hereof, it is safe to say that lived experiences in a particular society influences the manner in which human rights may be prioritised, interpreted, and perceived [26]. For South African's specifically, the rights to liberty, education, and personal gain may, for example, be more important than building a better life for future generations. As a direct result, they may be more selective of which human rights they support and which activities they demand from govern-

The legal recognition of human rights on international level by the United Nation's Declaration on Human Rights placing emphasis on the fact that all human beings are born free and equal in dignity and rights as well as that humans are naturally gifted with reason and conscience that allows them to interact with others in a spirit of comradeship is also not without appraisal. Bentham [9], for example, critiques the notion of equality as an anarchical myth by noting that humans are clearly born unequal pertaining to status, property, genetic talents, and wealth, and access to the social determinants of good health and in numerous other aspects. As a direct result, he disregards the existence of natural rights and underscores the importance of legally recognised human rights. He points out that the moral componence of human rights is in direct conflict with their presumed legal status. Bentham also states that humans are not born free as babies are absolutely dependent on others for their survival. Along the same lines, he argues that human rights refer to rights which must be legally guaranteed to humans and not merely justified by legal systems. As such, he argues that the human rights discourse has moved outside the scope of moral and legal philosophers and into the hands of politicians

The right to equality is, furthermore, criticised by Donnely [44] on the basis that humans by nature function in hierarchical relations with other humans within a society, thus automatically leaving them prone to inequalities and competition for better life opportunities. Based on the prominence of human rights and the critique

The potential of protecting human rights for enabling all humans to live quality lives lies in the fact that human rights guide humans to cope with the burdens of

*DOI: http://dx.doi.org/10.5772/intechopen.88912*

ment to make their lives worthwhile [3].

deciding which human rights will deserve prioritisation.

**4. Can human rights be justified?**

against them, the justification of such rights merits discussion.

#### *Humans: The Biggest Barrier to Realising Human Rights - A South African Perspective DOI: http://dx.doi.org/10.5772/intechopen.88912*

are guaranteed. This Constitution is regarded as a transformational document aiming at replacing the previous apartheid regime due to colonisation, riddled with racism and the unequal treatment of humans based on their individual characteristics. It is a value-driven Constitution guaranteeing fundamental rights to every human being and pertinently providing for constitutional values including transparency, democracy, equality, human dignity, and the achievement of each human's potential.

Given their prominence in the new South Africa, the rights to equality (section 9), human dignity (section 10), and life (section 11) are firstly assured. Due to its history of past inequalities towards humans and their current diverse population, the right to equality deserved special attention. It entails respecting the equal worth (mutual recognition) of all humans although they differ regarding their nature, life conditions, social circumstances, as well as personal biographies and decisions [30].

Although the Constitution does not provide for a hierarchical structure of human rights, the standing of human dignity and the right to life was elevated above all other fundamental rights in the landmark case of *S v Makwanyane,* 1995 (3) SA 391 (CC) (para. 144). The Constitutional Court made a specific mention of the political and social factors dominant in South Africa which caused a climate of aggression, revenge, and vengeance disregarding the worth and life opportunities of its inhabitants. In view hereof, it is safe to say that lived experiences in a particular society influences the manner in which human rights may be prioritised, interpreted, and perceived [26]. For South African's specifically, the rights to liberty, education, and personal gain may, for example, be more important than building a better life for future generations. As a direct result, they may be more selective of which human rights they support and which activities they demand from government to make their lives worthwhile [3].

The legal recognition of human rights on international level by the United Nation's Declaration on Human Rights placing emphasis on the fact that all human beings are born free and equal in dignity and rights as well as that humans are naturally gifted with reason and conscience that allows them to interact with others in a spirit of comradeship is also not without appraisal. Bentham [9], for example, critiques the notion of equality as an anarchical myth by noting that humans are clearly born unequal pertaining to status, property, genetic talents, and wealth, and access to the social determinants of good health and in numerous other aspects. As a direct result, he disregards the existence of natural rights and underscores the importance of legally recognised human rights. He points out that the moral componence of human rights is in direct conflict with their presumed legal status. Bentham also states that humans are not born free as babies are absolutely dependent on others for their survival. Along the same lines, he argues that human rights refer to rights which must be legally guaranteed to humans and not merely justified by legal systems. As such, he argues that the human rights discourse has moved outside the scope of moral and legal philosophers and into the hands of politicians deciding which human rights will deserve prioritisation.

The right to equality is, furthermore, criticised by Donnely [44] on the basis that humans by nature function in hierarchical relations with other humans within a society, thus automatically leaving them prone to inequalities and competition for better life opportunities. Based on the prominence of human rights and the critique against them, the justification of such rights merits discussion.
