Writing at the time of the French Revolution, the eighteenth century Whig politician and political philosopher Edmund Burke, observed that ‘a seasonable extension of rights is the best expedient for the conservation of them’. Two centuries later on the southern tip of another continent it is clear that unless individual human and socio-economic rights are extended to all South Africans there are not likely to be too many rights of any kind left to share with anyone. Equal liberties in the absence of a concern for the material well-being of people in South Africa is, at very least, the worst kind of abstraction. The importance of this concern has, of course, vast implications for emerging democracies in Eastern Europe and for established western nations as well, where inequitable distribution in material and social resources fails to match the democratic ideals on which these nations are constructed. The question addressed in what follows is how to integrate both kinds of rights (individual and social). There are not many situations in modern history where this has been accomplished.

The history of the abuse of parliamentary supremacy, as discussed in the previous chapter, shows law-making in South Africa to have been little more than an exercise in providing the white minority with an arsenal of weapons designed to exploit the black majority. The effects of this abusive kind of legal positivism have persuaded an increasing number of participants in the struggle for a new South Africa of the need to establish an alternative system of rule, under the control of a constitution which legally guarantees the rights of all citizens.