Research Articles (Private Law)

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The nature and essence of right and duty as the moral-ethical foundation of Rosmini's jural principles fundamental to human rights
(Faculty of Law, University of the Free State, 2008) Swartz, N. P.
English: According to Rosmini duty precedes right. Without duty preceding right it would be impossible to form a concept or idea of right. As stated by Rosmini, the concept of right is encapsulated within the idea of duty. Each right thus has a duty that counters it. If a human being loves his fellow man, he will fulfill his obligations towards that person. By carrying out the command of love, a person will not be able to wrong his fellow man. On the grounds hereof the decree of love and social beneficence underwrite, in the context of Rosmini all rights and duties, that of the State and of the individual. With regard to Thomas Aquinas, the rights and duties of the individual would be neglected, while that of the State, under the guise of Salus reipublicae supreme lex, would be stressed. The latter pave the way for human rights infringements, that is in contradistinction with the South African (Bill of Rights) Constitution and the Eighth and Fourteenth Amendments of the American Constitution.