oa Comparative and International Law Journal of Southern Africa - The constitutional protection of religious human rights in Southern Africa

Volume 33, Issue 3
  • ISSN : 0010-4051



Religious human rights occupy a central position in human rights jurisprudence. They are the chronological and conceptual kernel from which much of what we today know as the idea of human rights has developed.

In terms of the 'struggle theory of human rights', human rights and legitimate resistance are two sides of the same coin. To claim the protection of a particular interest as a human right, is simply another way of saying that if that interest is threatened, and there is no other reasonable alternative, one can take the law into one's own hands to protect that interest. Or conversely : to claim a right of resistance to protect a particular interest, is tantamount to claiming that the protection of that interest is a basic human right.
When we say human rights are 'inviolable', we do not suggest that they may never be breached but rather that they should not be violated, and that their violation need not (and perhaps even should not) be tolerated. To determine the contents of the concept of human rights, we consequently need to examine human history and establish which interests have over time emerged as those that we agree could not legitimately be threatened, even by the law.
There can be little doubt that freedom of religion has acquired this status over the years. In many ways, the development of the idea of religious autonomy paved the way for the acceptance of other fundamental rights.

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