**1. Introduction**

When Nelson Mandela became the President of South Africa in 1994, he identified one major challenge that lied ahead, namely, the establishment of a social order in which individual liberty truly entails the freedom of the individual. To meet this challenge, he advocated behaviour aimed at restoring the human dignity of each and every South African as guaranteed, alongside a wide variety of other individual fundamental rights, in the Constitution of the Republic of South Africa, Act 108 of 1996 (hereafter the Constitution).

Mandela noted the importance of human rights as well as their practical realisation to give effect to such rights. Whether the formal acceptance of internationally recognised human rights in their constitutions and other national legislation by governments around the globe is a mere symbolic gesture or a true reflection of a commitment to and an internalisation of the demarcated norms associated with

human rights and is however yet to be established [1]. In this regard, the tension that arises between the protection of humans from being exploited and their fundamental rights violated, on the one side, and the promotion of individual autonomy and respect, on the other, needs consideration.

Given the significant role played by governments (consisting of humans) in determining the structures, formations, and circumstances under which effect can be given to human rights within their respective countries, this chapter explores the practices, norms, and values adhered to by humans and how they correspond or conflict with the goals of international human rights law through a philosophical lens. By describing and analysing both the legal and normative impact of human nature and behaviour, this chapter contributes to the understanding of contemporary sociolegal changes and its consequential implications on the effective realising of human rights. Consideration is taken of the practical reality mirroring the worldwide occurrence of daily human right infringements by humans through their behaviour, making it clear that neither the existence of natural laws nor the ratification of human right treaties is necessary congruent with their day-to-day governance of nations and that a gap exists between philosophical views pertaining to natural moral rights, idealistic legal documents guaranteeing human rights, and reality. In order to continue the philosophical debate regarding human rights, a conceptual clarification of what human rights entail is firstly provided.

### **2. What are human rights?**

Human rights are regarded by Heard [2] as being a product of a global philosophical debate that has prolonged for over 2000 years. As a result, human rights are viewed as a continuation of the natural rights tradition which focused on the moral properties of human beings and, thus, emerged long before the adoption thereof in legal documents [3]. They encompass moral entitlements that belong to humans whether recognised by legal systems or not [4]. As moral rights and claims, they present minimum standards pertaining to human treatment to which humans are morally entitled to [5] simply because of them being human [6]. In this regard, Nussbaum [7] identified the need for a list of minimal goods or opportunities required by all humans to live decent lives—an issue that soon became a central topic in the debate on the philosophical foundations of human rights. Gusman [3] agrees by stating that the question is not whether human rights have value but rather whether their special status as being essential to ensure humans a valuable life is recognised. Along the same trend, Grotius [8] viewed human rights as part of universal laws of nature not only guiding the interaction between humans but also allowing for individual (moral) rights to self-determination.

Various authors [9–12], however, argue that rights cannot exist without being provided legal status ensuring mechanism for their enforceability. In referring to the views of philosophers such as Burke, Bentham, and Rousseau, Heard [2] similarly argues that human rights do not automatically belong to all humans detached from human endeavour as they are, par excellence, created by human action. As such, human rights are the product of both human co-existence and legal systems. Although philosophers were initially reluctant to scrutinise human rights as embedded in international and national legal systems [13], Kirchschlaeger [14] identified four different dimensions to human rights aiming at guaranteeing the safeguarding of every human in respect of the crucial areas and elements of basic human existence (life and survival). These four dimensions are forthwith employed as a framework in obtaining a holistic and integrated view of human rights.

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regardless of their legal status.

**2.2 The legal dimension of human rights**

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

unit, on the other side, should be dedicated to group survival [17–19].

between the rights of the individual and the needs of human society.

The international legal recognition of human rights aiming at giving effect to human rights is regarded as one of the greatest moral achievements of humankind [23]. This is due to the perception that an ethical system functions as a framework for the creation, manifestation, and enforcement of legal principles. In this regard, Kirchschlaeger [14] believes that a just law is a code made by humans to reflect their moral convictions, whilst unjust law comprises of codes that is not in harmony with moral laws. Since the practical realisation of human rights depends upon the conscious willingness of humans themselves to follow moral acceptable behaviour towards others [13], human rights will continue to have a strong moral foundation

According to Habermas [24], the legal dimension of human rights has not solely developed in reaction to wars of aggression and mass crimes on humankind nor can its advances be limited to a human rights regime. He contends that globalisation was

Since human rights derived from human nature, and humans are, by nature, egoistic in that they selfishly seek individual autonomy at the cost of others [19], legal systems aim at limiting and guiding human behaviour by combining human rights with corresponding duties [17]. This entails that the human rights of others need to be respected at all times even if it may be detrimental to individual needs [13]. Human rights, subsequently, do not only provide legitimate claims, they also oblige—by way of successive waves of responsibilities—all humans to respect them and to withhold themselves from infringing upon the human rights equally conferred to others as well as to, for unselfish reasons [20, 21], protect and support those whose rights are abused or denied. With regard to the latter, Keith [1] and Kirchschlaeger [14] draw specific attention to vulnerable, marginalised human beings and those belonging to discriminated against minority groups having to endure the violation of their human rights because they simply do not possess sufficient knowledge or means to claim their rights and, thus, cannot make their voices heard. It is in this regard that Changeux [22] proposed that humans need to discern and explain the different aspirations and beliefs of human beings regarding their own mental health and life expectations to each other through extensive dialogue in order to ensure the good life all desire and to achieve a more harmonious balance

Considering the philosophical emphasis on basic moral or natural rights as well as on the very nature of rights, the ethical dimension of human rights is firstly analysed. Although philosophers measured human behaviour during premodern times against the will of God (adherence to natural moral obligations), modern times necessitate the consideration of human behaviour as being morally good or bad by measuring its degree of adherence to legally sound human rights [15]. This is due to human rights becoming central to the ethical and political discourse, indicating a weighty shift regarding how humans understand the foundations of morality. By itself, human rights incorporate norms that are perceived to allow humans to live civilised and honourable/dignified lives [6] or lives worth living as long as they know and recognise these rights and behave according [16]. It has, moreover, become crucial for humans to be aware of the fact that they are part of a dynamic world, co-existing amongst other humans. This entails the dichotomy of man—as an individual complete whole, humans strive at self-survival placing them in basic competition with one another on the one side, whilst they, as members of a social

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

**2.1 The ethical dimension of human rights**
