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Just Ideas: Transformative Ideals of Justice in Ethical and Political Thought
uBuntu and the Law: African Ideals and Postapartheid Jurisprudence
This is the first comprehensive casePub to address the relationship of uBuntu to law. It also provides the most important critical articles on the use of uBuntu, both by the Constitutional Court and by other levels of the judiciary in South Africa.
Although uBuntu is an ideal or value rooted in South Africa, its purchase as a performative ethic of the human goes beyond its roots in African languages. Indeed, this casePub helps break through some of the stale antinomies in the discussions of cultures and rights, since both the courts and the critical essays discuss ubuntu as not simply an indigenous or even African ideal but one that is its own terms calls for universal justification. The efforts of the Constitutional Court to take seriously competing ideals of law and justice has led to original ethical reasoning, which has significant implications for post apartheid constitutionalism and law more generally.
uBuntu, then, as it is addressed as an activist ethic of virtue and then translated into law, helps to expand the thinking of a modern legal system’s commitment to universality by deepening discussions of what inclusion and equality actually mean in a postcolonial country. Since uBuntu claims to have universal purchase, its importance as a way of thinking about law and justice is not limited to South Africa but becomes important in any human rights discourse that is not limitedly rooted in Western European ideals. Thus this book will be a crucial resource for anyone who is seriously grappling with human rights, postcolonial constitutionalism, and competing visions of the relations between law and justice.
Although uBuntu is an ideal or value rooted in South Africa, its purchase as a performative ethic of the human goes beyond its roots in African languages. Indeed, this casePub helps break through some of the stale antinomies in the discussions of cultures and rights, since both the courts and the critical essays discuss ubuntu as not simply an indigenous or even African ideal but one that is its own terms calls for universal justification. The efforts of the Constitutional Court to take seriously competing ideals of law and justice has led to original ethical reasoning, which has significant implications for post apartheid constitutionalism and law more generally.
uBuntu, then, as it is addressed as an activist ethic of virtue and then translated into law, helps to expand the thinking of a modern legal system’s commitment to universality by deepening discussions of what inclusion and equality actually mean in a postcolonial country. Since uBuntu claims to have universal purchase, its importance as a way of thinking about law and justice is not limited to South Africa but becomes important in any human rights discourse that is not limitedly rooted in Western European ideals. Thus this book will be a crucial resource for anyone who is seriously grappling with human rights, postcolonial constitutionalism, and competing visions of the relations between law and justice.
494 pages, Hardcover
First published March 1, 2011
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About the author
Drucilla Cornell
50 books14 followersDrucilla Cornell is National Research Foundation Professor in Customary Law, Indigenous Ideals, and the Dignity Jurisprudence at the University of Cape Town in South Africa and Professor of Political Science, Women & Gender Studies, and Comparative Literature at Rutgers University.
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October 21, 2015
The African concept of Ubuntu is fascinating. It’s commonly explained with the phrase “a person is a person through other people.” It gets more interesting as you dig deeper into it, but that is the short commonly-used description of it. Basically, it means that our humanity is created by recognizing the humanity of others. By recognizing others’ humanity, we create a web of reciprocal rights and duties. By the same token, discounting the humanity of others discounts one’s own humanity. This is different from the Western idea of a social contract – it is based simply on our existence as humans, not on any agreement about what society should be.
After Apartheid, ubuntu became an important political idea in South Africa and it provided an important ethical foundation for the work of the Truth and Reconciliation Commission under Archbishop Tutu. I understand the appeal of ubuntu. In a world that generally disclaims the authority of traditional religious morality, ubuntu offers a humanistic alternative. It can speak with authority without the baggage of religion, so it can be admissible in public debate.
The South African Constitutional Court has declared that ubuntu is a justiciable principle – meaning that it can be used to decide legal cases before the court. This book contains excerpts of judgments from South African cases that discuss ubuntu and use it to decide cases, along with helpful commentary and articles about ubuntu and the law.
Because I find ubuntu to be so interesting, and because I’m a lawyer, I was excited to read this book to finally see how ubuntu is applied as a justiciable principle in actual cases. I was hoping to see a developing jurisprudence that could teach outsiders a new approach to constitutional interpretation. What I found was pretty disappointing. This book, while trying to show the opposite, shows that ubuntu is not very helpful as a legal concept. Instead, it looks like an attractive philosophical disguise for enacting political goals. (I understand that South Africa set up its constitution much differently from the American example, giving its Constitutional Court much greater latitude to decide political issues. I was just hoping for more substance.)
For example, murder violates ubuntu in the most profound way – what worse way to deny another’s humanity than to take their life? Thus, under ubuntu, there is a strong argument that capital punishment is appropriate for some murderers. By denying another person’s humanity, the murderer also denies their own humanity. This total negation/denial of ubuntu seems like a strong justification for removing that person from the web of human relations that ubuntu is. At the very least, applying ubuntu to this question should prompt a strenuous debate about humanity, the bounds of inhumanity, and appropriate punishments. But in ruling capital punishment to be unconstitutional, the court invoked ubuntu mostly to say that we should forgive rather than punish. This is noble, but not quite what I expect from constitutional jurisprudence. The court seems to say, “Ubuntu says we should be nice. And capital punishment isn’t nice.” I’m probably missing something here, but I was expecting a bit more substance to the discussion. Should there be a balancing of interests? A distinction between different kinds of murder? Or perhaps a decision that capital punishment is not appropriate in this case, but it may be in other cases. At least some explanations what ubuntu as a legal principle is and is not, so that there is some guidance for the future.
And when it comes to economic rights, I don’t see how ubuntu helps decide cases. Imagine a case in which the government enacts a law that it will provide healthcare for all, with a maximum of $10,000 worth of care a year. If a person gets cancer, that limit will probably be inadequate for her care. The patient will argue that ubuntu requires that the government disregard the limit for her. But the government argues that, if it ignores the limit in her case, it will have to do so in all other similar cases and there won’t be enough money for other less expensive, but still necessary, care for others. What does ubuntu require? Compassion for the one, or compassion for the mass of humanity? And how does a court apply ubuntu to decide what facts are persuasive enough? What about other economic rights? What happens when there just isn’t enough money to comply with all the economic rights that the constitution recognizes? Can ubuntu be used to require the government to increase taxes to pay for benefits? Or to redirect spending from one area to another? Perhaps a jurisprudence will develop that provides answers to those questions. But I didn’t see it here.
So, my main complaint is that I didn’t find any articulated tests or guidelines for using ubuntu as a justiciable principle. Nothing concrete. Nothing that can be applied predictably to guide officials or later courts. Just a very attractive and potent concept that can be invoked by judges to reach whatever result they truly believe is the best.
As Mark Sanders explained in his book Ambiguities of Witnessing (page 28), “Ubuntu takes the place of something absent, something that may never have existed, that lacks a proper name yet is promised by being posited.” In other words, ubuntu is like Mayberry – a perfect town that we all want to move back to, except that it never existed. No wonder it is so difficult to determine what ubuntu allows and requires.
After Apartheid, ubuntu became an important political idea in South Africa and it provided an important ethical foundation for the work of the Truth and Reconciliation Commission under Archbishop Tutu. I understand the appeal of ubuntu. In a world that generally disclaims the authority of traditional religious morality, ubuntu offers a humanistic alternative. It can speak with authority without the baggage of religion, so it can be admissible in public debate.
The South African Constitutional Court has declared that ubuntu is a justiciable principle – meaning that it can be used to decide legal cases before the court. This book contains excerpts of judgments from South African cases that discuss ubuntu and use it to decide cases, along with helpful commentary and articles about ubuntu and the law.
Because I find ubuntu to be so interesting, and because I’m a lawyer, I was excited to read this book to finally see how ubuntu is applied as a justiciable principle in actual cases. I was hoping to see a developing jurisprudence that could teach outsiders a new approach to constitutional interpretation. What I found was pretty disappointing. This book, while trying to show the opposite, shows that ubuntu is not very helpful as a legal concept. Instead, it looks like an attractive philosophical disguise for enacting political goals. (I understand that South Africa set up its constitution much differently from the American example, giving its Constitutional Court much greater latitude to decide political issues. I was just hoping for more substance.)
For example, murder violates ubuntu in the most profound way – what worse way to deny another’s humanity than to take their life? Thus, under ubuntu, there is a strong argument that capital punishment is appropriate for some murderers. By denying another person’s humanity, the murderer also denies their own humanity. This total negation/denial of ubuntu seems like a strong justification for removing that person from the web of human relations that ubuntu is. At the very least, applying ubuntu to this question should prompt a strenuous debate about humanity, the bounds of inhumanity, and appropriate punishments. But in ruling capital punishment to be unconstitutional, the court invoked ubuntu mostly to say that we should forgive rather than punish. This is noble, but not quite what I expect from constitutional jurisprudence. The court seems to say, “Ubuntu says we should be nice. And capital punishment isn’t nice.” I’m probably missing something here, but I was expecting a bit more substance to the discussion. Should there be a balancing of interests? A distinction between different kinds of murder? Or perhaps a decision that capital punishment is not appropriate in this case, but it may be in other cases. At least some explanations what ubuntu as a legal principle is and is not, so that there is some guidance for the future.
And when it comes to economic rights, I don’t see how ubuntu helps decide cases. Imagine a case in which the government enacts a law that it will provide healthcare for all, with a maximum of $10,000 worth of care a year. If a person gets cancer, that limit will probably be inadequate for her care. The patient will argue that ubuntu requires that the government disregard the limit for her. But the government argues that, if it ignores the limit in her case, it will have to do so in all other similar cases and there won’t be enough money for other less expensive, but still necessary, care for others. What does ubuntu require? Compassion for the one, or compassion for the mass of humanity? And how does a court apply ubuntu to decide what facts are persuasive enough? What about other economic rights? What happens when there just isn’t enough money to comply with all the economic rights that the constitution recognizes? Can ubuntu be used to require the government to increase taxes to pay for benefits? Or to redirect spending from one area to another? Perhaps a jurisprudence will develop that provides answers to those questions. But I didn’t see it here.
So, my main complaint is that I didn’t find any articulated tests or guidelines for using ubuntu as a justiciable principle. Nothing concrete. Nothing that can be applied predictably to guide officials or later courts. Just a very attractive and potent concept that can be invoked by judges to reach whatever result they truly believe is the best.
As Mark Sanders explained in his book Ambiguities of Witnessing (page 28), “Ubuntu takes the place of something absent, something that may never have existed, that lacks a proper name yet is promised by being posited.” In other words, ubuntu is like Mayberry – a perfect town that we all want to move back to, except that it never existed. No wonder it is so difficult to determine what ubuntu allows and requires.
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