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Ubuntu as a moral theory and human rights in South Africa

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Abstract

There are three major reasons why ideas associated with ubuntu are often deemed to be an inappropriate basis for a public morality in today's South Africa. One is that they are too vague; a second is that they fail to acknowledge the value of individual freedom; and a third is that they fit traditional, small-scale culture more than a modern, industrial society. In this article, I provide a philosophical interpretation of ubuntu that is not vulnerable to these three objections. Specifically, I construct a moral theory grounded on Southern African world views, one that suggests a promising new conception of human dignity. According to this conception, typical human beings have a dignity by virtue of their capacity for community, understood as the combination of identifying with others and exhibiting solidarity with them, where human rights violations are egregious degradations of this capacity. I argue that this account of human rights violations straightforwardly entails and explains many different elements of South Africa's Bill of Rights and naturally suggests certain ways of resolving contemporary moral dilemmas in South Africa and elsewhere relating to land reform, political power and deadly force. If I am correct that this jurisprudential interpretation of ubuntu both accounts for a wide array of intuitive human rights and provides guidance to resolve present-day disputes about justice, then the three worries about vagueness, collectivism and anachronism should not stop one from thinking that something fairly called 'ubuntu' can ground a public morality.
AFRICAN HUMAN RIGHTS LAW JOURNAL
Ubuntu as a moral theory and
human rights in South Africa
Thaddeus Metz*
Humanities Research Professor of Philosophy, University of Johannesburg,
South Africa
Summary
There are three major reasons why ideas associated with ubuntu are often
deemed to be an inappropriate basis for a public morality in today’s
South Africa. One is that they are too vague; a second is that they fail to
acknowledge the value of individual freedom; and a third is that they t
traditional, small-scale culture more than a modern, industrial society.
In this article, I provide a philosophical interpretation of ubuntu that is
not vulnerable to these three objections. Specically, I construct a moral
theory grounded on Southern African world views, one that suggests a
promising new conception of human dignity. According to this concep-
tion, typical human beings have a dignity by virtue of their capacity for
community, understood as the combination of identifying with others and
exhibiting solidarity with them, where human rights violations are egre-
gious degradations of this capacity. I argue that this account of human
rights violations straightforwardly entails and explains many different
elements of South Africa’s Bill of Rights and naturally suggests certain
ways of resolving contemporary moral dilemmas in South Africa and else-
where relating to land reform, political power and deadly force. If I am
correct that this jurisprudential interpretation of ubuntu both accounts for
a wide array of intuitive human rights and provides guidance to resolve
present-day disputes about justice, then the three worries about vague-
ness, collectivism and anachronism should not stop one from thinking
that something fairly called ‘ubuntu’ can ground a public morality.
* BA (Iowa), MA PhD (Cornell); tmetz@uj.ac.za. This work has been improved as a
result of feedback received at the Ubuntu Project Conference in Honour of Justice
Albie Sachs, held at the Faculty of Law, University of Pretoria; a Blue Skies Seminar in
Political Thought hosted by the Department of Politics, University of Johannesburg;
a gathering of the Wits Centre for Ethics Justice Working Group; and a colloquium
hosted by the Centre for Applied Philosophy and Public Ethics. The article has also
beneted from the written input of Patrick Lenta and of anonymous referees for this
Journal.
532
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[W]e have not done enough to articulate and elaborate on what ubuntu
means as well as promoting this important value system in a manner that
should dene the unique identity of South Africans.
Former South African President Thabo Mbeki,
Heritage Day 2005
1 Introduction
Despite President Mbeki’s call, many jurists, philosophers, political
theorists, civil society activists and human rights advocates in South
Africa reject the invocation of ubuntu, tending to invoke three sorts of
complaints.
First, and most often, people complain that talk of ubuntu in Nguni
languages (and cognate terms such as botho in Sotho-Tswana and
hunhu in Shona) is vague. Although the word literally means human-
ness, it does not admit of the precision required in order to render
a publicly-justiable rationale for making a particular decision. For
example, one inuential South African commentator suggests that
what ubuntu means in a legal context ‘depends on what a judge had for
breakfast’, and that it is ‘a terribly opaque notion not t as a normative
moral principle that can guide our actions, let alone be a transparent
and substantive basis for legal adjudication’.1 This concern has not
exactly been allayed by a South African Constitutional Court justice
who has invoked ubuntu in her decisions, insofar as she writes that it
can be grasped only on a ‘know it when I see it’ basis, its essence not
admitting of any precise denition.2
A second common criticism of ubuntu is its apparent collectivist
orientation, with many suspecting that it requires some kind of
group-think, uncompromising majoritarianism or extreme sacrice for
society, which is incompatible with the value of individual freedom that
is among the most promising ideals in the liberal tradition. Here, again,
self-described adherents to ubuntu have done little to dispel such
concerns, for example, an author of an important account of how to
apply ubuntu to public policy remarks that it entails ‘the supreme value
of society, the primary importance of social or communal interests,
obligations and duties over and above the rights of the individual’.3
A third ground of scepticism about the relevance of ubuntu for public
morality is that it is inappropriate for the new South Africa because of its
traditional origin. Ideas associated with ubuntu grew out of small-scale,
pastoral societies in the pre-colonial era whose world views were based
1 E McKaiser ‘Public morality: Is there sense in looking for a unique denition of
ubuntu?’ Business Day 2 November 2009.
2 Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 1 Potchefstroom Electronic
Law Journal 2.
3 GM Nkondo ‘Ubuntu as a public policy in South Africa’ (2007) 2 International Journal
of African Renaissance Studies 90.
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on thickly spiritual notions such as relationships with ancestors (the
‘living-dead’). If certain values had their source there, then it is reason-
able to doubt that they are t for a large-scale, industrialised, modern
society with a plurality of cultures, many of which are secular.4
Call these three objections to an ubuntu-oriented public morality
those regarding ‘vagueness’, ‘collectivism’ and ‘anachronism’. It would
be incoherent to hold all three objections at the same time; after all, the
more one claims that ubuntu is vague and admits of any interpretation,
the less one can contend that it is inherently collectivist. Even so, the
three objections are characteristic of discourse among professionals,
elites, intellectuals and educated citizens in general, and hence are
worth grouping together.
In this article, I aim to articulate a normative-theoretical account of
ubuntu that is not vulnerable to these three objections. I construct an
ethical principle that not only grows out of indigenous understandings
of ubuntu, but is fairly precise, clearly accounts for the importance of
individual liberty, and is readily applicable to addressing present-day
South Africa as well as other societies. To esh out these claims, I explain
how the ubuntu-based moral theory I spell out serves as a promising
foundation for human rights. Although the word ubuntu does not
feature explicitly in the Constitution that was ultimately adopted in
South Africa,5 my claim is that a philosophical interpretation of values
commonly associated with ubuntu can entail and plausibly explain this
document’s construal of human rights. In short, I aim to make good
on the assertion made by the South African Constitutional Court that
ubuntu is the ‘underlying motif of the Bill of Rights6 and on similar
claims made by some of the Court’s members.7
Note that this is a work of jurisprudence, and specically of norma-
tive philosophy, and hence that I do not engage in related but distinct
projects that some readers might expect.8 For one, I am not out to
describe the way of life of any particular Southern African people. Of
course, to make the label ubuntu appropriate for the moral theory I con-
struct, it should be informed by pre-colonial Southern African beliefs
and practices (since reference to them is part of the sense of the word
4 See several expressions of scepticism about the contemporary relevance of tradi-
tional African ideas recounted in J Lassiter ‘African culture and personality’ (2000) 3
African Studies Quarterly 10-11.
5 Constitution of the Republic of South Africa, 1996, http://www.info.gov.za/ docu-
ments/constitution/1996/index.htm (accessed 31 October 2011).
6 Port Elizabeth Municipality v Various Occupiers (2004) ZACC 7; 2005 1 SA 217 (CC);
2004 12 BCLR 1268 (CC) para 37.
7 In particular, see Justice Albie Sachs’s remarks in Dikoko v Mokhatla (2006) ZACC
10; 2006 6 SA 235 (CC); 2007 1 BCLR 1 (CC) para 113, as well as views ascribed to
Justice Yvonne Mokgoro in D Cornell ‘Ubuntu, pluralism and the responsibility of
legal academics to the new South Africa’ (2008) 20 Law and Critique 47 56.
8 I might also fail to adhere to certain stylistic conventions to which academic lawyers
are accustomed, and beg for leniency from my colleagues.
ahrlj-2011-2-text.indd 534 2/7/12 10:10:19 AM
as used by people in my and the reader’s linguistic community). How-
ever, aiming to create an applicable ideal that has a Southern African
pedigree and grounds human rights, my ultimate goal in this article is
distinct from the empirical project of trying to accurately reect what
a given traditional black people believed about morality – something
an anthropologist would do. For another, I do not here engage in legal
analysis, even though I do address some texts prominent in South
African legal discourse. My goal is not to provide an interpretation of
case law, but rather to provide a moral theory that a jurist could use to
interpret case law, among other things.
I begin by summarising the ubuntu-based moral theory that I have
developed elsewhere (section 2) and then I articulate its companion
conception of human dignity (section 3). Next, I invoke this concep-
tion of human dignity to account for the nature and value of human
rights of the sort characteristic of the second chapter of South Africa’s
Constitution (section 4). In the following section, I apply the moral
theory to some human rights controversies presently facing South
Africa (and other countries as well), specically those regarding suitable
approaches to dealing with compensation for land claims, the way that
political power should be distributed, and sound policies governing
the use of deadly force by the police (section 5). My aim is not to pres-
ent conclusive ways to resolve these contentious disputes, but rather
to illustrate how the main objections to grounding a public morality
on ubuntu, regarding vagueness, collectivism and anachronism, have
been rebutted, something I highlight in the conclusion (section 6).
2 Ubuntu as a moral theory
Neville Alexander recently remarked that he is glad that the oral culture
of indigenous Southern African societies has made it difcult to ascer-
tain exactly how they understood ubuntu.9 For him and some other
intellectuals,10 the relevant question is less ‘How was ubuntu under-
stood in the past?’ and more ‘How should we understand ubuntu
now?’ I agree with something like this perspective, and begin by spell-
ing out what it means to pose the latter question, after which I begin
to answer it.
2.1 Considerations of method
To speak legitimately of ubuntu at all requires discussing ideas that are
at least continuous with the moral beliefs and practices of those who
speak Nguni languages, from which the term originated, as well as
9 Comments made at a Symposium on a New Humanism held at the Stellenbosch
Institute for Advanced Study (STIAS) 24-25 February 2010.
10 Eg MO Eze Intellectual history in contemporary South Africa (2010).
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of those who have lived near and with them, such as Sotho-Tswana
and Shona speakers.11 Some would say that it is fair to call something
ubuntu only if it mirrors, without distortion, how such peoples have
traditionally understood it.12 However, I reject such a view, for two
reasons. First, analogies with other terms indicate that it can be appro-
priate to call a perspective ubuntu if it is grounded in ideas and habits
that were salient in pre-colonial Southern Africa, even if it does not fully
reproduce all of them. Consider, for example, the way contemporary
South African lawyers use the phrase ‘Roman Dutch law’. Second,
there is no single way in which pre-colonial Southern African peoples
understood ubuntu; there have been a variety of different Nguni (and
related) languages and cultures and, with them, different values. One
unavoidably must choose which interpretation of ubuntu one thinks is
most apt, given one’s aims.
I submit that it is up to those living in contemporary Southern Africa
to refashion the interpretation of ubuntu so that its characteristic ele-
ments are construed in light of our best current understandings of
what is morally right. Such refashioning is a project that can be assisted
by appealing to some of the techniques of analytic philosophy, which
include the construction and evaluation of a moral theory. A moral
theory is roughly a principle purporting to indicate, by appeal to as few
properties as possible, what all right actions have in common as dis-
tinct from wrong ones. What (if anything) do characteristically immoral
acts such as lying, abusing, insulting, raping, kidnapping and breaking
promises have in common by virtue of which they are wrong?
Standard answers to this question in Western philosophy include the
moral theories that such actions are wrong just insofar as they tend to
reduce people’s quality of life (utilitarianism), and solely to the extent
that they degrade people’s capacity for autonomy (Kantianism). How
should someone answer this question if she nds the Southern African
values associated with talk of ubuntu attractive?
2.2 Moral-theoretic interpretation of ubuntu
She would likely start by appealing to the ubiquitous maxim A per-
son is a person through other persons’.13 When Nguni speakers state
11 Sometimes the word ubuntu is meant to capture not merely Southern African moral
views, but sub-Saharan ones more generally. I lack the space in this article to com-
pare the two bodies of thought, but elsewhere I have drawn on anthropological and
sociological ndings indicating that there are many important similarities between
a wide array of traditional cultures below the Sahara desert. If so, then Mbeki’s sug-
gestion that ubuntu is unique to South Africans is incorrect. See T Metz ‘Toward an
African moral theory’ (2007) 15 Journal of Political Philosophy 321.
12 An assumption present in M Ramose African philosophy through ubuntu (1999).
13 The following several paragraphs draw on T Metz ‘Human dignity, capital punish-
ment, and an African moral theory’ (2010) 9 Journal of Human Rights 83-85; T Metz
& J Gaie ‘The African ethic of ubuntu/botho(2010) 39 Journal of Moral Education
274-276.
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Umuntu ngumuntu ngabantu’, and when Sotho-Tswana speakers say
Motho ke motho ka batho babang’, they are not merely making an
empirical claim that our survival or well-being are causally dependent
on others, which is about all a plain reading in English would admit.
They are rather in the rst instance tersely capturing a normative
account of what we ought to most value in life. Personhood, self-
hood and humanness in characteristic Southern African language and
thought are value-laden concepts. That is, one can be more or less of a
person, self or human being, where the more one is, the better.14 One’s
ultimate goal in life should be to become a (complete) person, a (true)
self or a (genuine) human being.
So, the assertion that ‘a person is a person’ is a call to develop one’s
(moral) personhood, a prescription to acquire ubuntu or botho, to
exhibit humanness. As Desmond Tutu remarks: ‘When we want to
give high praise to someone, we say Yu u nobuntu; Hey, so-and-so has
ubuntu.’15 The claim that one can obtain ubuntu ‘through other per-
sons’ means, to be more explicit, by way of communal relationships
with others.16 As Shutte, one of the rst professional South African
philosophers to publish a book on ubuntu, sums up the basics of the
ethic:17
Our deepest moral obligation is to become more fully human. And this
means entering more and more deeply into community with others. So
although the goal is personal fullment, selshness is excluded.
Just as ‘an unjust law is no law at all’ (Augustine), Southern Africans
would say of a person who does not relate communally that ‘he is not
a person’. Indeed, those without much ubuntu, roughly, those who
exhibit discordant or indifferent behaviour with regard to others, are
often labelled ‘animals’.18
One way that I have sought to contribute to ubuntu scholarship is
by being fairly precise, not only about what communal relationships
and related concepts such as harmony essentially involve, but also
14 As is made particularly clear in Ramose (n 12 above) 51-52. For similar ideas ascribed
to sub-Saharan thought generally, see K Wiredu ‘The African concept of person-
hood’ in HE Flack & EE Pellegrino (eds) African-American perspectives on biomedical
ethics (1992) 104; I Menkiti ‘On the normative conception of a person’ in K Wiredu
(ed) A companion to African philosophy (2004) 324.
15 D Tutu No future without forgiveness (1999) 31.
16 For representative statements from those in Southern Africa, see S Biko ‘Some Afri-
can cultural concepts’ in S Biko I write what I like. Selected writings by Steve Biko
(1971/2004) 46; Tutu (n 15 above) 35; N Mkhize ‘Ubuntu and harmony’ in R Nicol-
son (ed) Persons in community (2008) 38-41.
17 A Shutte Ubuntu: An ethic for the new South Africa (2001) 30.
18 C Pearce ‘Tsika, Hunhu and the moral education of primary school children’ (1990)
17 Zambezia 147; MJ Bhengu Ubuntu: The essence of democracy (1996) 27; M Letseka
‘African philosophy and educational discourse’ in P Higgs et al (eds) African voices in
education (2000) 186.
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about how they gure into performing morally-right actions.19 To seek
out community with others is not best understood as equivalent to
doing whatever a majority of people in society want or conforming to
the norms of one’s group. Instead, African moral ideas are both more
attractively and more accurately interpreted as conceiving of com-
munal relationships as an objectively-desirable kind of interaction that
should instead guide what majorities want and which norms become
dominant.
More specically, there are two recurrent themes in typical African
discussion of the nature of community as an ideal, what I call ‘identity’
and ‘solidarity’. To identify with each other is largely for people to think
of themselves as members of the same group, that is, to conceive of
themselves as a ‘we’, for them to take pride or feel shame in the group’s
activities, as well as for them to engage in joint projects, co-ordinating
their behaviour to realise shared ends. For people to fail to identify with
each other could go beyond mere alienation and involve outright divi-
sion between them, that is, people not only thinking of themselves
as an ‘I’ in opposition to a ‘you’, but also aiming to undermine one
another’s ends.
To exhibit solidarity is for people to engage in mutual aid, to act in
ways that are reasonably expected to benet each other. Solidarity is
also a matter of people’s attitudes such as emotions and motives being
positively oriented toward others, say, by sympathising with them
and helping them for their sake. For people to fail to exhibit solidarity
would be for them either to be uninterested in each other’s ourishing
or, worse, to exhibit ill-will in the form of hostility and cruelty.
Identity and solidarity are conceptually separable, meaning that one
could in principle exhibit one sort of relationship without the other.
For instance, workers and management in a capitalist rm probably
identify with one another, but insofar as typical workers neither labour
for the sake of managers nor are sympathetic toward them, solidar-
ity between them is lacking. Conversely, one could exhibit solidarity
without identity, say, by helping someone anonymously.
While identity and solidarity are logically distinct, characteristic
African thought includes the view that, morally, they ought to be rea-
lised together. That is, communal relationship with others, of the sort
that confers ubuntu on one, is well construed as the combination of
identity and solidarity. One will nd implicit reference to both facets
of community in the following statements by Southern African adher-
ents to ubuntu:20 ‘Harmony is achieved through close and sympathetic
19 Metz (nn 11 & 13 above).
20 For similar expressions from Africans far north of the Limpopo, see S Gbadegesin
African philosophy (1991) 65; K Gyekye Beyond cultures (2004) 16; P Iroegbu ‘Begin-
ning, purpose and end of life’ in P Iroegbu & A Echekwube (eds) Kpim of morality
ethics: General, special and professional (2005) 442.
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social relations within the group;’21 ‘[U]buntu advocates … express
commitment to the good of the community in which their identities
were formed, and a need to experience their lives as bound up in that
of their community;’22 ‘Individuals consider themselves integral parts
of the whole community. A person is socialised to think of himself, or
herself, as inextricably bound to others … Ubuntu ethics can be termed
anti-egoistic as it discourages people from seeking their own good
without regard for, or to the detriment of, others and the community.
Ubuntu promotes the spirit that one should live for others.’23
To begin to see the philosophical appeal of grounding ethics on such
a conception of community, consider that identifying with others can
be cashed out in terms of sharing a way of life and that exhibiting soli-
darity toward others is naturally understood in terms of caring about
their quality of life. And the union of sharing a way of life and caring
about others’ quality of life is basically what English speakers mean by
a broad sense of ‘friendship’ (or even ‘love’). Hence, one major strand
of Southern African culture places friendly (or loving) relationships at
the heart of morality, as others have tersely summarised ubuntu on
occasion. For instance, speaking of African perspectives on ethics, Tutu
remarks:24
Harmony, friendliness, community are great goods. Social harmony is for us
the summum bonum – the greatest good. Anything that subverts or under-
mines this sought-after good is to be avoided like the plague.
Kasenene similarly says that ‘in African societies, immorality is the word
or deed which undermines fellowship’.25
Tutu and Kasenene indicate that one must, above all, avoid unfriend-
liness or acting in ways that would threaten communal ties. However, a
fuller statement of how to orient oneself toward friendly relationships
is needed, for example, in light of the question of what to do when
being unfriendly in a certain respect is expected to have the long-term
effect of promoting a greater friendliness.
My suggestion about how to orient oneself toward friendly or com-
munal relationships, in order to act rightly and exhibit ubuntu, is that
one ought to prize or honour such relationships. Such a relation to them
contrasts in the rst instance with promoting them as much as possible
wherever one can.26 The latter prescription, simply to maximally pro-
duce communal relationships (of identity and solidarity) and reduce
21 Mokgoro (n 2 above) 3.
22 Nkondo (n 3 above) 91.
23 M Munyaka & M Motlhabi ‘Ubuntu and its socio-moral signicance’ in FM Murove
(ed) African ethics: An anthology of comparative and applied ethics (2009) 69 71-72.
24 Tutu (n 15 above) 35.
25 P Kasenene Religious ethics in Africa (1998) 21.
26 For an analysis of these two different ways of responding to value, see P Pettit ‘Con-
sequentialism and respect for persons’ (1989) 100 Ethics 116; D McNaughton &
P Rawling ‘Honouring and promoting values’ (1992) 102 Ethics 835.
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anti-social ones (of division and ill-will) would permit intuitively imper-
missible behaviour. To adopt an example familiar to a philosophical
audience, an instruction to promote as many communal relationships
as one can in the long run would permit a doctor to kill an innocent,
relatively healthy individual and distribute her harvested organs to
three others who would otherwise die without them, supposing there
would indeed be more of such relationships realised in the long term.
A moral theory that focuses exclusively on promoting good outcomes
however one can (which is ‘teleological’) has notorious difculty in
accounting for an individual right to life, among other human rights.
I therefore set it aside in favour of an ethical approach according to
which certain ways of treating individuals are considered wrong at
least to some degree ‘in themselves’, apart from the results. Honouring
communal relationships would involve, roughly, being as friendly as
one can oneself and doing what one can to foster friendliness in others
without one using a very unfriendly means.27 This kind of approach,
which implies that certain ways of bringing about good outcomes
are impermissible (and is ‘deontological’), most promises to ground
human rights.
To sum up, the maxim ‘A person is a person through other persons’,
which is fairly opaque (at least to English speakers), admits of the fol-
lowing, more revealing interpretations: ‘One becomes a moral person
insofar as one honours communal relationships’, or A human being
lives a genuinely human way of life to the extent that she prizes identity
and solidarity with other human beings’, or ‘An individual realises her
true self by respecting the value of friendship’. According to this moral
theory, grounded in a salient Southern African valuation of community,
actions are wrong not merely insofar as they harm people (utilitarian-
ism) or degrade an individual’s autonomy (Kantianism), but rather just
to the extent that they are unfriendly or, more carefully, fail to respect
friendship or the capacity for it. Actions such as deception, coercion and
exploitation fail to honour communal relationships in that the actor is
distancing himself from the person acted upon, instead of enjoying a
sense of togetherness; the actor is subordinating the other, as opposed
to co-ordinating behaviour with her; the actor is failing to act for the
good of the other, but rather for his own or someone else’s interest;
or the actor lacks positive attitudes toward the other’s good, and is
instead unconcerned or malevolent.
From the analysis so far, it should be clear that the moral-theoretic
interpretation of ubuntu is much more precise than other, more typical
renditions of it. In the rest of this article, I aim to demonstrate how this
ubuntu-based moral theory plausibly accounts for the human rights
characteristic of the South African Constitution and can enable us to
27 I rene this approximate principle below.
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address contemporary controversies about justice in South Africa and
elsewhere.
Before applying the theory, though, I remind the reader not to
conate it (a philosophical account of what all right actions have in
common) with an anthropological description of the world views of
any particular sub-Saharan peoples. I am providing one, theoretically
attractive way to interpret ideas commonly associated with ubuntu; I
am neither suggesting that it is the only way to do so, nor trying to
spell out a principle that anyone has actually held prior to now. I do,
however, believe that the suggested interpretation of ubuntu is a prom-
ising way to unify into the form of a theory a wide array of beliefs and
practices that have been recurrent for a long span of time and a large
number of peoples south of the Sahara.28
3 Ubuntu as a moral theory and human dignity
In order to explain how ubuntu as a moral theory can account for
much of the Bill of Rights, I make the presumption that human rights
are grounded upon human dignity. In this section, I rst motivate this
assumption, and then articulate a new conception of human dignity
grounded in ubuntu as a moral theory, which I will use in the rest of the
article to explain and unify human rights.
3.1 Human rights and human dignity
One has a human right to something, by denition, insofar as all agents
have a stringent duty to treat one29 in a certain way that obtains
because of some quality one shares with (nearly) all other human
beings and that must be fullled, even if not doing so would result
in marginal gains in intrinsic value or in somewhat fewer violations of
this same duty in the long run. So construed, a human right is a moral
right against others, that is, a natural duty that ought to be taken into
account by morally responsible decision makers, regardless of whether
they recognise that they ought to. I am therefore not interested in
norms that are inherently either customarily acknowledged or legally
enforced (even though I do use the second chapter of the South African
Constitution to illustrate characteristic human rights).
There are utilitarians who claim that human rights are basically rules
of thumb designed to maximise the general welfare, but I, with the
majority of contemporary moral theorists, presume that such a view
has been shown to be implausible,30 in part because of examples such
28 Which I have argued in Metz (n 11 above).
29 I do not address group rights in this article, deeming ‘human rights’ to pick out the
entitlements of individuals.
30 See, eg, R Nozick Anarchy, state, and utopia (1974) 28-34.
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as the organs case above. Instead, I assume that to observe human
rights is to treat an individual as having a dignity, roughly, as exhibit-
ing a superlative non-instrumental value. Alternatively, a human rights
violation is a failure to honour people’s special nature, often by treating
them merely as a means to some ideology such as racial or religious
purity or to some prudentially selsh end.
Using this framework, one would distinguish the violation of a right
from a justiable limitation thereof, roughly in terms of the reason for
which the right has not been observed. It would degrade human dig-
nity, and hence violate a right, to lock up an innocent person in a room
in order to obtain a ransom, but it might not degrade human dignity,
and hence might justiably limit a right, to lock an innocent person in
a room in order to protect others from a virulent disease he is carrying.
Kidnapping and quarantining can involve the same actions, but since
the purposes for which the actions are done differ, there is a difference
with regard to whether dignity is disrespected and a right is violated,
on the one hand, or whether dignity is respected and a right is justi-
ably limited, on the other.
This theoretical framework, in which human dignity is the founda-
tional value of human rights, has become the dominant view among
moral philosophers, jurisprudential scholars, United Nations theorists,
and the German and South African Constitutional Courts.31 However,
they have tended to apply this general perspective in a particular way,
namely, by cashing out the content of dignity in terms of autonomy.
The dominant theme has been that human rights are ultimately ways
of treating our intrinsically valuable capacity for self-governance with
respect.32 Enslaving others in order to benet oneself, discriminating
for the purpose of purifying the race, torturing in order to deter politi-
cal challenges and the like seem to be well conceived, on the face of it,
as degradations of individuals’ ability to govern themselves, to make
free and informed decisions regarding the fundamental aspects of their
lives.
I lack the space here to argue against, or even to explore, this powerful
and inuential model, initially articulated with most care by the Ger-
man enlightenment philosopher, Immanuel Kant.33 Instead, I mention
the Kantian theory in order to motivate the idea that what probably
31 For a discussion of the role of dignity in South African jurisprudence, see S Wool-
man ‘Dignity’ in S Woolman (ed) Constitutional law of South Africa (2002) 36;
A Chaskalson ‘Dignity and justice for all’ (2009) 24 Maryland Journal of International
Law 24; L Ackermann Human dignity: Lodestar for equality in South Africa (unpub-
lished manuscript).
32 For a discussion in the South African context, see D Jordaan ‘Autonomy as an ele-
ment of human dignity in South African case law’ (2008) 8 The Journal of Philosophy,
Science and Law http://www6.miami.edu/ethics/jpsl/archives/all/Autonomy-human-
dignity.html (accessed 31 October 2011); Woolman (n 31 above).
33 I Kant Groundwork of the metaphysics of morals (1785), I Kant Metaphysics of morals
(1797).
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theoretically unies the myriad human rights that intuitively exist is
an intrinsic worth of the human person that admits of no equivalent
among other beings on the planet. My present task is to articulate a
Southern African view that can plausibly rival the Kantian conception
by virtue of which we have a dignity and hence are bearers of human
rights.
3.2 Human dignity in existent Southern African thought
Writings by those sympathetic to Southern African world views include
two salient conceptions of human dignity, but, as they stand, neither
is particularly useful for the aim of accounting for human rights. One
view of dignity analyses it in terms of something variable among human
beings that is a function of their degree of ubuntu. The idea is that the
more one lives a genuinely human – and hence communal – way of
life, the more one has a dignied existence. Traditionally speaking, it
would be elders, and especially ancestors, who have the greatest dig-
nity, so conceived. This view might be what Botman has in mind when
he says that ‘[t]he dignity of human beings emanates from the network
of relationships, from being in community; in an African view, it cannot
be reduced to a unique, competitive and free personal ego’.34
Such a variant conception of dignity obviously cannot ground
human rights, which are uncontroversially deemed to be equal among
persons. If a merely decent person, let alone a scoundrel, has a right to
life to no less a degree than a Nelson Mandela or Mother Teresa (at least
in their stereotypical construals), then we need a conception of dignity
that does not vary according to degrees of moral merit. Another way
to see the problem is this: A non-violent person who has been put into
solitary connement and hence lacks communal relationships with
others nonetheless retains dignity, indeed a dignity that is degraded by
virtue of the solitary connement. If dignity were a function of actually
being in community, however, then this individual would counterintui-
tively lack a dignity.
Now, one does nd an invariant conception of dignity among South-
ern African thinkers, according to which what makes us deserving of
equal respect is the fact of human life as such.35 The traditional thought
is that every human being has a spiritual self or invisible ‘life force’ that
has been bestowed by God, that can outlive the death of her body, and
that makes her more special than anything else in the mineral, veg-
34 HR Botman ‘The OIKOS in a global economic erain JR Cochrane & B Klein (eds)
Sameness and difference: Problems and potentials in South African civil society (2000)
http://www.crvp.org/book/Series02/II-6/chapter_x.htm (accessed 31 October
2011).
35 See, eg, Justice Mokgoro’s remarks in the South African Constitutional Court case
State v Makwanyane & Mchunu (1995) ZACC 3; 1995 6 BCLR 665; 1995 3 SA 391
paras 309-311; Ramose (n 12 above) 138-145; MJ Bhengu Ubuntu: Global philosophy
for humankind (2006) 29-87.
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etable or animal kingdoms. Such a view would obviously underwrite
an equal right to life, and also probably rights to integrity of the human
organism that carries the ‘soul’.
However, for several reasons I do not nd this conception of human
dignity attractive. First, grounding dignity in human life qua spiritual
does a poor job of accounting for human rights that do not concern
‘life and death matters’, for example, to democratic participation in
government or to freedom of movement.36 Second, a more secular
understanding of human dignity is more apt for modern, and often
multicultural, societies than is a highly contested, particular form of
supernaturalism. Third, I seek an interpretation of human dignity that
coheres particularly well with the moral theory articulated above,
which makes no fundamental reference to God, a soul or similarly
supra-physical beings or forces.
3.3 A more promising conception of dignity
In any event, I draw upon alternative resources in Southern African
moral thought to construct a conception of human dignity that entails
and plausibly explains human rights. Here is my suggestion: One is to
develop one’s humanness by communing with those who have a dig-
nity in virtue of their capacity for communing. That is, individuals have
a dignity insofar as they have a communal nature, that is, the inherent
capacity to exhibit identity and solidarity with others. According to this
perspective, what makes a human being worth more than other beings
on the planet is roughly that she has the essential ability to love others
in ways these beings cannot. If you had to choose between running
over a cat or a fellow person, you should run over the cat, intuitively
because the person is worth more. While the Kantian theory is the view
that persons have a superlative worth because they have the capac-
ity for autonomy, the present, ubuntu-inspired account is that they do
because they have the capacity to relate to others in a communal way.
Note that some people will have used their capacity for communal
relationship to a greater degree than others. However, it is not the
exercise of the capacity that matters for dignity, but rather the capacity
itself. Even those who have misused their capacity for community, by
acting immorally, retain the capacity to act otherwise and hence have
not thereby lost their dignity.
Now, some people do have a greater ability to enter into community
with others, but the present conception of dignity is that supposing
one has the ability above a certain threshold, one has a dignity that is
the equal of anyone else who also meets it.37 Whenever one encoun-
ters an individual with the requisite degree of the capacity for sharing
36 I argue the point in T Metz ‘African conceptions of human dignity: Vitality and com-
munity as the ground of human rights’ (2011) 13 Human Rights Review 1.
37 See J Rawls A theory of justice (1971) 505-506.
ahrlj-2011-2-text.indd 544 2/7/12 10:10:20 AM
a way of life and caring for others’ quality of life, one must treat that
capacity of hers with equal respect.
Although the differential use of the capacity for communal rela-
tionships, and even a differential degree of the capacity itself, are
compatible with equal dignity and equal respect, there is a very small
percentage of human beings who utterly lack this capacity, and hence
lack a dignity by the present account. Here, one should keep in mind
that literally every non-arbitrary and non-speciesist theory of what
constitutes human dignity faces the problem that some human beings
lack the relevant property. Unless we have a dignity merely by virtue
of our DNA, it will follow from any theory that anencephalic infants,
for example, lack human dignity, meaning that the present view is no
worse off than, say, the Kantian one. Furthermore, from the bare fact
that there are probably some human beings that lack a dignity, it does
not follow that one may treat them however one pleases; for they in
all likelihood have a moral status for reasons other than dignity, that is,
their capacity to feel pain (or, as I argue elsewhere, their ability to be
an object of others’ love, even in the absence of their ability to exhibit
love themselves).38
4 An ubuntu-based conception of dignity as the basis
of human rights
In this section I put the ubuntu-inspired account of dignity from the
previous section to work, aiming to demonstrate the way that it natu-
rally grounds salient human rights. I start by articulating a principle
about how to respond to beings with such a dignity that purports to
capture most human rights violations, and then I apply the principle
to much of the Bill of Rights from the second chapter of South Africa’s
Constitution.
4.1 From human dignity to human rights
My proposal is that we understand human rights violations to be
serious degradations of people’s capacity for friendliness, understood
as the ability to share a way of life and care for others’ quality of life,
where such degradation is often a matter of exhibiting extraordinarily
unfriendly behaviour toward them. Human rights violations are ways
of gravely disrespecting people’s capacity for communal relationship,
conceived as identity and solidarity, which disrespect principally takes
the form of a signicant degree of anti-social behaviour, for example, of
38 For an ubuntu-based discussion of the moral standing of beings who in principle
cannot exhibit identity and solidarity, see T Metz ‘An African theory of moral status:
A relational alternative to individualism and holism’ (2011) 14 Ethical Theory and
Moral Practice http://www.springerlink.com/content/j5g38kl117110628/fulltext.
pdf (accessed 31 October 2011).
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division and ill-will. As I demonstrate below, many of the most impor-
tant human rights, for instance not to be enslaved or tortured, are well
understood as protections against enmity, against an agent treating
others as separate and inferior, undermining their ends, seeking to
make them worse off, and exhibiting negative attitudes toward them
such as power seeking and Schadenfreude.
This explanation of the nature of a human rights violation is a prom-
ising start, but is incomplete; as it stands, it requires pacism and
forbids any form of unfriendly behaviour such as coercion. Yet, almost
no believers in human rights are pacists, instead maintaining that, in
some situations, violence is justied, at least for the sake of preventing
violence. Indeed, one of the most uncontroversial human rights that
people have is a claim against their state to use force if necessary to
protect them from attack on the part of domestic criminals or foreign
invaders.
I therefore must nd a way to account for the impermissibility of
unfriendliness when there are intuitive human rights violations, and
the permissibility of unfriendliness when there are not. In light of the
reections above about the difference between a kidnap and a quaran-
tine, it is natural to suggest that the difference will importantly depend
on the purpose served by the unfriendliness. Consider, then, this prin-
ciple: It is degrading of a person’s capacity for friendliness, and hence a
violation of her human rights, to treat her in a substantially unfriendly
way if one is not seeking to counteract a proportionate unfriendliness
on her part, but it need not be degrading of a person’s capacity for
friendliness to treat her in a substantially unfriendly way, when one’s
doing so is necessary to prevent or correct for a comparable unfriend-
liness on her part. A kidnap is a human rights violation because the
person kidnapped is innocent, namely, roughly, has not acted in an
unfriendly way, but a quarantine need not be a human rights violation,
if the person quarantined refuses of her own accord to isolate herself
so as to avoid infecting others with an incurable, fatal, easily commu-
nicable disease.
In short, being unfriendly toward another is not necessarily to
degrade her capacity for friendship, as respecting her capacity requires
basing one’s interaction with her on the way she has exercised it.39 To
respect those who have not been unfriendly requires treating them in a
friendly way, while respecting those who have been unfriendly permits
treating them in an unfriendly way, under conditions in which doing so
is necessary to protect the victims of their comparable unfriendliness.
If someone misuses her capacity for communal relationship, there is
no disrespect of this capacity and human rights violation if divisiveness
and ill-will is directed toward her as essential to counteract her own
39 In order to justify coercion, a parallel principle is widely used by Kantians, who prize
the capacity for freedom.
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divisiveness and ill-will. Hence, violence is justied when, and only
when, necessary to protect innocent victims of unjustied violence.
Note that this rationale is not retributive in the sense of justify-
ing the imposition of suffering merely because it is deserved or of
treating aggressors as beyond the pale of human community. The
principle implies that it would be unjust to treat someone who has
been unfriendly in an unfriendly way, if doing were not necessary to
protect her potential victims or to compensate her actual ones. The
principle therefore permits punishment, deadly force and other forms
of coercion as they intuitively can be justied, while also underwriting
the prescription not to use it when harm can be prevented or alleviated
without it. Hence, this principle can make theoretical sense of the tight
associations often drawn between ubuntu and restorative justice,40 on
the one hand, and between ubuntu and self-defence,41 on the other:
Intentional harm may be inicted on offenders only when necessary to
protect their victims, which, in many cases, it is not.
Summing up, according to the moral-theoretic interpretation of
ubuntu, one is required to develop one’s humanness by honouring
friendly relationships (of identity and solidarity) with others who have
dignity by virtue of their inherent capacity to engage in such relation-
ships, and human rights violations are serious degradations of this
capacity, often taking the form of very unfriendly behaviour that is not
a proportionate, counteractive response to another’s unfriendliness.
This ubuntu-inspired theory is sufcient to account for a wide array
of human rights, as I now sketch in the context of South Africa’s Bill
of Rights. I obviously lack the space to apply it to every single right
included there, and so refer to a few major clusters of them only. In
addition, in striving to give the reader a bird’s eye view of how one
might try to unify human rights by appeal to the dignity of our com-
munal nature (rather than our autonomy), I inevitably pass over many
important subtleties; issues of justiable limitation, progressive realisa-
tion, horizontal application and the like will have to wait for another,
much lengthier treatment.
4.2 Human rights to liberties
The South African Constitution counts as ‘liberal’ at least insofar as it
explicitly recognises individual rights to freedoms of religion, belief,
press, artistic creativity, movement and residence.42 The state and all
40 Eg Tutu (n 15 above); D Louw ‘The African concept of ubuntu and restorative jus-
tice’ in D Sullivan & L Tifft (eds) Handbook of restorative justice (2006) 161; A Krog
‘”This thing called reconciliation …”; Forgiveness as part of an interconnectedness-
towards-wholeness’ (2008) 27 South African Journal of Philosophy 353.
41 Ramose (n 12 above) 120: ‘The authority of law rests in the rst place upon its rec-
ognition of self-defence as an inalienable individual or collective right … This is the
basis of ubuntu constitutional law.’ See also Kasenene (n 25 above) 41.
42 Secs 11-18 & 21-22 South African Constitution.
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other agents in society are forbidden from restricting what innocent
people may do with their minds and bodies for the sake of any ideol-
ogy or benet; only some other, stronger right can outweigh these
‘negative’ rights to be free from interference.
Respect for the dignity of persons as individuals with the capacity
for friendly relationships qua identity and solidarity accounts naturally
for rights to liberty. What genocide, torture, slavery, systematic rape,
human trafcking and apartheid have in common, by the present the-
ory, is that they are instances of substantial division and ill-will directed
to those who have not acted this way themselves, thereby denigrating
their special capacity to exhibit the opposite traits of identity and soli-
darity. Concretely, one who engages in such practices treats people,
who have not themselves been unfriendly, in an extremely unfriendly
way: The actor treats others as separate and inferior, instead of enjoying
a sense of togetherness; the actor undermines others’ ends, as opposed
to engaging in joint projects with them; the actor harms others (which
includes stunting their potential to ourish as loving beings) for his
own sake or for an ideology, as opposed to engaging in mutual aid;
and the actor evinces negative attitudes toward others’ good, rather
than acting consequent to a sympathetic reaction to it.
Of most relevance in the context of these rights not to be enslaved,
tortured and otherwise interfered with is the capacity to identify with
others or to share a way of life, where genuinely sharing a way of life
requires interaction that is co-ordinated, rather than subordinated. Part
of what is valuable about friendship or communal relationships is that
people come together, and stay together, of their own accord. When
one’s body is completely controlled by others, when one is forbidden
from thinking or expressing certain ideas, or when one is required by
law to live in some parts of a state’s territory rather than others, then
one’s ability to decide for oneself with whom to commune and how
is impaired. In order to treat a person as though her capacity to share
a life with others is (in part) the most important value in the world, it
ought not be severely restricted (unless doing so is necessary to rebut
similar restrictions that she is imposing on others).
4.3 Human rights to criminal justice
Although innocent people have human rights to liberty, they also have
human rights to protection from the state, which can require restric-
tions on the liberty of those reasonably suspected of being guilty. The
South African Constitution recognises an obligation on the part of
the state to set up a police force that is tasked with preventing crime
and enforcing the law.43 The judgment that offenders do not have
human rights never to be punished, or that violent aggressors do not
have human rights never to be the targets of (perhaps, deadly) force,
43 Sec 205(3) South African Constitution.
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is well explained by the principle that it does not degrade another’s
capacity for friendliness if one is unfriendly toward him as necessary to
counteract his own proportionate unfriendliness. In addition, the judg-
ment that innocents have human rights against the state to use force
against the guilty as necessary to protect them is well explained by the
principle that it would degrade the innocents’ capacity for friendliness,
would fail to treat it as the most important value in the world, if the
state did not take steps, within its power, to effectively protect it from
degrading treatment by others.
Moving away from an explanation of the human rights of the inno-
cent to protection from the state, consider now the rights of those
suspected of guilt. Everyone in South Africa who has been charged
with a crime is deemed to have rights to be informed of the charge, to
be able to prepare a defence, to be tried by an impartial body, to have
the trial conducted in a language he understands, to be released from
pre-trial detention when feasible, and to remain in touch with family
and counsel.44
These and similar rights are, in large part, a function of the need to
avoid punishing or otherwise harming the innocent (even if doing so
likely results in the acquittal of a greater number of guilty). Supposing
the state wanted to minimise the extent to which those innocent of any
offence were inadvertently convicted or made worse off, it would adopt
these kinds of rights. And respect for people’s capacity for community
well explains an urgent concern to avoid coercing the innocent. As
mentioned above, respect for this capacity means treating a person in
accordance with the way she has exercised it. Roughly, those who have
been friendly do not warrant unfriendly treatment such as detention
and punishment, whereas those who have been unfriendly do war-
rant unfriendly treatment, when necessary to protect or compensate
those threatened by their own unfriendliness. The state must take care,
therefore, to discriminate between the two groups.
4.4 Human rights to political power
Rights to liberty and to criminal justice are ones that a democratic legis-
lature must not contravene, while the present batch of rights concerns
the abilities of citizens to participate in democratic legislation. The Bill
of Rights accords citizens the rights to form political parties, to support
a political party of their choice, to vote in regular elections, and to run
for public ofce.45
One can fairly sum up these rights by saying that citizens are entitled
to an equal opportunity to inuence political outcomes. Now, if what
is special about us is, in part, our ability to identify with others or to
share a way of life, then that is going to require sharing political power.
44 Secs 12 & 34-35 South African Constitution.
45 Sec 19 South African Constitution.
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And supposing we are equally special by virtue of having the requisite
capacity to share a way of life, that means according people the equal
ability to inuence collective decision making.
One could also underwrite democratic rights by appealing, somewhat
less powerfully, I think, to considerations of respect for solidarity. The
state must honour communal relationships in part by acting to benet
the people it has allowed within its territory, and it can best do so if they
are accorded the nal authority to determine political choice. Dictators
are rarely disposed to be benevolent, and even when their intentions are
good, they lack the knowledge and skills to do what is in fact likely to
enable their subjects to live better lives. In contrast, as John Stuart Mill
argued long ago, when residents are given the responsibility for gov-
erning themselves, then not only is the government more likely to be
responsive to their interests, but they also tend to become more active
and self-reliant.46 Given the plausible assumption that the more passive
and dependent one is, the less well-off one is likely to be, a principle of
respect for people’s capacity for (among other things) mutual aid gives
reason to recognise human rights to participate in governance.
4.5 Human rights to socio-economic goods
South Africa’s Constitution is famously considered progressive for
explicitly entitling (at least) legal residents to a wide array of means.
Specically, people have rights against the state (and, in principle,
other agents in society) to resources such as housing, healthcare, food,
water, social security and education.47
There are two paths running from the principle of respect for our
communal nature to the judgment that we have ‘positive’ human rights
to socio-economic assistance. First, for the state to honour communal
relationships, it must seek to establish them between it and its legal
residents. And that will of course mean, with regard to solidarity, that
the state must do what it can to improve their quality of life, and to do
so for their sake consequent to a sympathetic understanding of their
situation. Furthermore, with respect to identity, residents are unlikely
to enjoy a sense of togetherness with politicians and state bureaucrats
if the latter are not going out of their way to ght poverty.
Second, another part of the state respecting its residents’ dignity as
people capable of community will mean doing what it can to foster
community among residents themselves. Consider the identity facet,
rst. It is hard to enjoy a sense of togetherness with others in society
when one is seriously impoverished. One feels a sense of shame, infe-
riority or at least distance when one’s basic needs are not met while
substantial segments of one’s society enjoy great wealth. In addition,
one’s ability to engage in joint projects with others is not honoured if
46 JS Mill Considerations on representative government (1861).
47 Secs 26-27 & 29 South African Constitution.
ahrlj-2011-2-text.indd 550 2/7/12 10:10:20 AM
one is lacking means. Respect for this ability to co-operate with others
means developing and supporting it by providing money and other
goods needed to facilitate common projects.
Finally, think about the way solidarity between residents is affected
by the fullment or disregard for their socio-economic rights. Treat-
ing others as though they are capable of relationships of mutual aid
means, in part, providing them with the resources that would enable
them to commune with others. I attended a South African National
Heritage Council imbizo that was devoted to ubuntu, where an elderly
black woman said that, for her, the problem with her being poor is that
she is not able to help others, that is, to give wealth away.
Of course, there are more rights than these adumbrated in the Con-
stitution, but discussing of all them is unnecessary in order to provide a
sense of what is involved in the claim that people have a human dignity
by virtue of their capacity for friendly or communal relationships qua
identity and solidarity and of how various human rights plausibly fol-
low from a requirement to respect dignity so conceived. The analyses
did not appeal to the Kantian notion of autonomy; the invocation of
our communal nature did the work, and appears to be worth taking
seriously as a rival to the more dominant, more individualist approach
to dignity and rights.
5 Addressing contemporary human rights
controversies
In the previous section I argued that the ubuntu-based conception of
dignity naturally underwrites a large number of human rights that
we intuitively have and that appear in the South African Constitution.
In this section, I apply this conception of dignity to a few issues that
are more controversial or at least are much less taken for granted in
contemporary South Africa and elsewhere on the continent. Contested
topics include how to effect compensatory justice with regard to land,
how to make political decisions, and how to use deadly force when
apprehending suspects. Note that my aim is not to present resolutions
of these problems, but rather to indicate respects in which the present
moral-theoretic interpretation of ubuntu can shed light on them.
5.1 For a more reconciliatory land reform
As is well known, at the end of apartheid in 1994, nearly 90 per cent of
land in South Africa had been forcibly expropriated into the hands of
white people who constituted about 10 per cent of the population, and
the new Constitution makes provision to compensate those who have
been dispossessed by way of land reform (or comparable redress).48
48 Sec 25 South African Constitution.
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It is also well known that little land has been transferred back to the
black majority, with the government acknowledging that it will fail to
reach its 2014 goal of returning 30 per cent of white-held land. Less
well known is that, according to a recent statement by the African
National Congress, 90 per cent of the land that has been returned to
black hands has not been productive, with the government threaten-
ing to repossess such land if its current owners do not use it to farm.49
In regard to these conditions, I have not infrequently encountered
two antipodal responses to the land question, which responses share
a common assumption that the ubuntu-based moral theory entails is
false. I rst spell out the antinomy, then bring out the dubious assump-
tion both positions rely upon, and nally sketch a different approach.
Not surprisingly, the two competing approaches to land reform tend
to correlate with race, making the issue black and white. On the white
side, I sometimes hear it argued that whites owe no restitution to South
African blacks since the latter’s standard of living would have been
worse had whites not taken control of the country. Whites sometimes
point out that in the African country where they reigned the longest,
the quality of life is the best. Even the worst-off in South Africa are
better off, so the argument goes, than the worst-off elsewhere south
of the Sahara.
On the black side, I sometimes hear Southern Africans argue that
their standard of living would have been higher had whites not settled,
exported all the minerals and kept the prots for themselves, and that,
in any event, the right thing for black people to do, or for the state to
do on their behalf, is immediately to take the land and give it back to
those who originally owned it or who would have inherited it from
those who did. In response to the rhetorical question of ‘Do you really
want another Zimbabwe?’, I have sometimes heard the reply that the
compensatory justice effected there has been worth the devastating
costs to life expectancy and overall quality of life. The most important
moral consideration, from this perspective, is restoring an original
state.
I ignore the empirical claims made by the two sides, and instead
demonstrate that they both share a questionable moral premise. The
premise is this: The appropriate way to distribute land today is a func-
tion of what would have happened in the absence of contact between
whites and blacks. Tersely, whites say that blacks have more wealth
than they would have had had whites not come, and hence are not
entitled to land redistribution, while blacks say that they are entitled
to land redistribution because they would have had more wealth had
whites not come or at least because justice requires putting things back
the way they would have been had whites not come.
49 G Nkwinti ‘Minister of Rural Development and Land Reform Cluster Brieng’
2 March 2010 http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/
page71656?oid=164364&sn=Detail (accessed 31 October 2011).
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In light of a requirement to respect human dignity qua capacity for
communal relationships, there are two deep problems with the shared
premise that the right way to distribute land today is xed by counter-
factual claims about what would have happened without white and
black interaction. One problem is that it is solely a ‘backward-looking’
principle, directing us to base a present distribution solely on facts
about the past, and does not take into account the likely consequences
of a policy, where such ‘forward-looking’ or future considerations are
morally important. A second problem is that it is the wrong backward-
looking principle to invoke.
On the latter, one cannot reasonably deny that facts about the past
are pro tanto relevant to determining justice in the present. It is hard to
doubt that if you steal my bicycle and give it to a third party, that party
does not rightfully own the bicycle and has strong moral reason to give
it back to me, or to my descendants to whom I would have bequeathed
it.50 However, the appropriate benchmark for ascertaining compensa-
tion is not a function of what would have happened had whites sailed
on past the Cape, but rather what would have happened had whites
fullled their moral obligations to blacks upon arriving there. To treat
people as capable of the special good of communal relationship, as
we have seen, includes exhibiting solidarity toward them. The relevant
question, then, is this: What would the distribution of wealth have
been like had whites, say, shared their science and technology, the
prots resulting from mineral excavation and the allocation of political
power? So, even if it were true that blacks would have been worse off
had whites not arrived, that is not relevant to establishing what blacks
are currently owed on backward-looking grounds.
However, it is a further mistake to suppose that only backward-looking
considerations are relevant to determining a just distribution of land at
the present time. Above I maintained that respect for people’s capacity
for friendliness can permit unfriendliness in response to unfriendliness,
but most clearly when and only when responding in that way will pre-
vent or make up for harm done to victims of the initial unfriendliness.
In the present context, that means that an unfriendly action by the
state toward whites, such as expropriation of land they currently hold,
is justied only if it is likely to help those harmed by the land being held
by whites, that is, dispossessed blacks. And it is unlikely that blacks can
expect benet from a Zimbabwe-style land grab.
The present suggestion does not rely on the racist notion that ‘blacks
cannot farm’ or are more generally incapable of being productive
without guidance from whites. Instead, the claim is what I take to be
the reasonable one that, in order to run farms and keep the economy
stable, blacks given agricultural land need substantial nancing and
training. Now, the present government has not been able to provide
50 See BR Boxill ‘The morality of reparations’ (1972) 2 Social Theory and Practice 113.
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554 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL
these well to the small number of blacks who have been given land
so far, explaining the 90 per cent failure rate, and so the point is that
the government would be even less able to support new farmers in
a Zimbabwean condition. Hence, the state is not morally required to
conscate white-held land en masse, and is probably forbidden from
doing so.
I am not an economist, and so cannot be detailed about the right
way forward. However, based on the above moral argumentation, I
can suggest some broad contours. Whites do owe blacks land, and
so they, and the state that wrongfully gave the land to whites in the
past, must transfer it in a way that is likely to benet blacks. Here are
two ways this could be done. The state could take a radical approach
but implement it gradually, while white farmers could take a moder-
ate approach but do so immediately. With regard to the state, it could
grant only limited tenure over land, so that an individual can own it
for a maximum period of, say, 75 years. Over time, then, the state
would regain control over the distribution of land, granting private
licences to use land in ways that balance considerations of redress
and productivity. In the meantime, it would give tax breaks or low-
interest loans to new black farmers, and would redistribute taxes on
white farms to impoverished blacks in rural areas. With regard to white
farmers, they could begin by formally apologising for retaining sub-
stantial control over land that was wrongfully taken from blacks. And
they could collectively decide to impart skills to blacks and to transfer
a certain percentage of fertile land to those with the demonstrable
ability to make use of it. Current agricultural associations would be
sufcient to co-ordinate such a redress programme; state supervision
would not be necessary. Surely, this is a way AfriForum and similar
groups should be keeping busy.
5.2 For a more consensus-oriented politics
South Africa’s Constitution, along with all other democratic states
south of the Sahara, took over the competitive, multi-party style of
democracy that is the norm in Western societies. A party has the legal
right to govern roughly in proportion to the number of votes that it
has obtained via fair procedures, and it has the legal right to make
decisions that are expected to benet its particular constituency. The
system of vying for votes and granting the power to make political
decisions to those with the most is so ubiquitous that people are often
inclined to identify democracy with it. However, a form of democratic
decision making different from the adversarial, majoritarian form is
possible, and is probably what respect for people’s dignity as beings
capable of community requires.
The interpretation of ubuntu articulated in this article seems to sup-
port a consensus-oriented political system of the sort that has been
common in traditional African cultures and that some Southern and
ahrlj-2011-2-text.indd 554 2/7/12 10:10:21 AM
other African philosophers have proposed for a modern society.51 Con-
sider a system in which legislators are initially elected by majority vote,
but are not tied to any political party, and, once elected, seek unanimous
agreement amongst themselves about which policies to adopt. Instead
of trying to promote any constituencies’ interests, politicians would
seek consensus about what would most benet the public as a whole.
There are two major reasons for thinking that respect for the dignity of
people’s communal nature supports this kind of democracy.
First, return to the rationale above for thinking that democracy of
some form or other is required. If what is special about us is, in part, our
capacity to share a way of life with others, then that is going to require
sharing political power, that is, to forbid authoritarian government.
Majoritarian democracy is a sharing of power but only in a weak sense,
giving to minorities the amount of power they are owed in accordance
with the number of votes they have acquired, and giving them the fair
opportunity to become majorities in elections scheduled every four or
ve years or so. A more intense sharing of power would accord every
citizen not merely the equal ability to become the ones who determine
law and policy, but also ‘the right of representation with respect to
every particular decision’,52 the right not to be utterly marginalised
when major laws and policies are actually formulated and adopted.
And it is reasonable to think that when laws obtain the consent of all
elected representatives, it is more likely that they would benet the
public as a whole, and not merely a subset, which solidarity would
prescribe.
While the rst argument for a consensus-based democracy is that
respect for our communal nature requires legislators to exhibit substan-
tial identity and solidarity with themselves and with citizens whenever
they make major decisions, the second argument is that it also requires
them to act in ways that are likely to foster substantial identity and
solidarity, or at least prevent great division and ill-will, in the long run.
Consensus-oriented decision making would best avoid creating legisla-
tive minorities and their constituencies who repeatedly lose out to the
majority, becoming marginalised, alienated and losing out. Generally
speaking, in order for a state to produce a sense of togetherness and to
facilitate cooperative, mutually benecial endeavours both between it
and citizens and between citizens themselves, its ofcials must not act
for the sake of any subset of the population related to them in some
51 See especially Ramose (n 12 above) 135-152; LJ Teffo ‘Democracy, kingship, and
consensus: A South African perspective’ in K Wiredu (ed) A companion to African
philosophy (2004) 443. A particularly careful and inuential exposition is in K Wiredu
Cultural universals and particulars: An African perspective (1996) 172-190.
52 Wiredu (n 51 above) 173.
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556 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL
way, a principle entailing that it is unjust for a politician to act for the
sake of a constituency.53
This reasoning points, then, to a respect in which South Africa’s
Constitution should be changed to recognise a ‘human right to deci-
sional representation’.54 Although it enshrines people’s human right to
democratic participation in government, those favouring an ubuntu-
oriented perspective on politics might see it as an expression of the
‘conqueror’s’ will for imposing a competitive, majoritarian form.55 It
is worth debating whether people’s human right to political power is
best understood as requiring a constitutional amendment forbidding
any party polity, and whether the Constitution would be on the whole
a more coherent document if it were so changed.
Even if no formal alteration of the Constitution is on the cards, the
present reasoning entails that the dominant political majority of our
time in South Africa, the African National Congress, should be less
opportunistic with regard to the power it has legally secured. It should
be doing much more to promote a de facto, if not de jure, government
of national unity. Some concrete steps it could take would be to appoint
many more persons from other parties to positions in cabinet, and to
make appointments based much more on qualications and much less
on patronage. Working together, South Africans could do more.
5.3 For a less retributive employment of deadly force
The last major issue of controversy that I address in order to illustrate
ubuntu as a moral theory has to do with the way the state ought to
respond to serious criminal infractions. Lately there has been debate
about when the police may ‘shoot to kill’, with the Constitutional Court
having rendered a unanimous judgment on the topic in S v Walters56
that is guiding a bill that will likely soon become law.57 The present
conception of human dignity entails that the bill and the judgment on
which it is based are awed.
To keep things simple, let us focus on the Court’s conclusion in S v
Walters, which is that deadly force is ordinarily not permitted unless
the suspect poses a threat of violence to the arrester or others or is
53 Which principle also neatly entails the injustice of nepotism and cronyism, as I argue
in T Metz ‘African moral theory and public governance’ in FM Murove (ed) African
ethics: An anthology of comparative and applied ethics (2009) 345-348.
54 Wiredu (n 51 above) 180.
55 This phrasing is found in both M Ramose An African perspective on justice and
race’ (2001) 3 Polylog http://them.polylog.org/3/frm-en.htm (accessed 31 October
2011); and LJ Teffo ‘Monarchy and democracy’ (2002) 1 Journal on African Philoso-
phy http://www.africaknowledgeproject.org/index.php/jap/issue/view/1 (accessed
31 October 2011).
56 S v Walters (CCT 28/01) (2002) ZACC 6; 2002 4 SA 613; 2002 7 BCLR 663.
57 See a draft of the bill amending the Criminal Procedure Act, 1977, regarding the use
of deadly force, http://www.justice.gov.za/legislation/bills/2010_cpamendbill.pdf
(accessed 31 October 2011).
ahrlj-2011-2-text.indd 556 2/7/12 10:10:21 AM
suspected on reasonable grounds of having committed a crime involv-
ing the iniction or threatened iniction of serious bodily harm and
there are no other reasonable means of carrying out the arrest, whether
at that time or later.58
According to this logic, a police offer may shoot or otherwise use
deadly force against a suspect under one of two independently suf-
cient conditions: Either (a) the suspect poses a threat of serious harm
to others that cannot be prevented without deadly force; or (b) the
suspect has already done or threatened serious harm to others and
cannot be detained without deadly force. The relation between (a) and
(b) is one of disjunction, not conjunction. That is, the court has ruled
that posing a threat of serious harm to others is not necessary in order
for deadly force to be justied; the mere facts of having already done
serious harm (or having threatened to do so) and being unable to be
apprehended without deadly force are enough to be liable to be shot.
Following the theoretical interpretation of ubuntu given above, the
(a) clause is apt. Recall that respect for a person’s capacity for friendli-
ness depends on the way he has exercised it, so that, more specically,
one does no disrespect to another by being unfriendly toward him, if
doing so is necessary to help those threatened by, or who have become
victims of, his unfriendliness. Hence, if someone is threatening to kill
or to impose comparable harm on others, and the only way to prevent
that is to inict deadly force on him, his capacity for friendliness would
not be degraded thereby and he would not have a suffered a human
rights violation.
However, the ubuntu-based conception of human dignity entails
that the (b) clause should be deleted and that it would constitute a
human rights violation not to do so. Unfriendliness is permissible, on
this conception, only as a counteractive response to proportionate
unfriendliness. That is, unfriendliness must serve the function of help-
ing those who have been, are being or will be victims of comparable
unfriendliness. This is another place where ubuntu is ‘forward-looking’,
directing a moral agent to consider the likely consequences of her
behaviour, and not to determine whether her behaviour is appropriate
solely in light of facts about the past.
Of course, detaining someone who has committed a serious crime
so that he may be tried in a court of law is a future ‘benet’ to be
sought. But that expected good is not one that is proportionate to the
use of deadly force. The court requires an ofcer to ensure that deadly
force is proportionate, but a sufcient discharge of that obligation, for
the court, is reasonably deeming deadly force to be proportionate to
the crime already committed in the past, not to harm that deadly force
could avert in the future.
58 Walters (n 56 above) para 54.
UBUNTU AS A MORAL THEORY IN SOUTH AFRICA 557
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558 (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL
In a broad sense, the court’s judgment is grounded in retributive
ideals, not ones that most of those who accept an ubuntu ethic would
uphold, or at least not adherents to the theoretical articulation of it
presented here. Retributivism is the ‘pay-back’ theory of punishment
and of negative responses more generally. According to this perspec-
tive, a punishment or other critical response should be based solely on
the nature of the crime or other wrongdoing committed. The worse
the misdeed, the harsher the penalty or harm should be, in order to
give the person what he deserves. A retributive approach considers it
‘good in itself’ that the amount of suffering be increased in the world,
so long as it is directed toward the guilty; imposing suffering need not
be expected to produce any future benet such as preventing a similar
or greater suffering.
While the court would likely disavow such baldly retributive senti-
ments, its judgment in S v Walters coheres more with a retributive
approach than with an ubuntuist one, since it does not require the
use of deadly force to serve the function of preventing a comparable
harm. Instead, according to the court, a sufcient condition for the
justied use of deadly force is the fact of having already done compa-
rable harm (along with being unable to be apprehended for it without
deadly force). Furthermore, for the court, the point of using deadly
force justiably can be to ensure that a person suspected of serious
wrongdoing is tried in a court of law, that is, is sentenced to a penalty
roughly comparable in severity to his wrongdoing.
One might reply on behalf of the court that someone who has
already committed a serious crime is likely to do so again. But there
are two damning responses to be made here. First, it is simply not true.
It is a commonplace in criminology, for example, that the recidivism
rate for murder is low, not only in relation to other serious offences,
but also in absolute terms. Most of those who have killed others did so
under extreme circumstances that are unlikely to be repeated. Second,
and more deeply, even if it were true, the (a) clause, or something very
close to it, would be sufcient to cover the issue, as it permits deadly
force when necessary to prevent serious harm.
6 Conclusion
In this article I have sought to defend the idea that ubuntu, suitably
interpreted, can serve as a ground of public morality. This defence has
taken the form of showing that even if various construals of ubuntu up
to now have been vague, collectivist or anachronistic, it can be inter-
preted in a more promising way. My approach has been to draw upon
salient beliefs and practices commonly associated with talk of ubuntu
(and cognate terms in Southern Africa) in order to construct a moral
theory, a basic principle indicating how all wrong actions differ from
right ones.
ahrlj-2011-2-text.indd 558 2/7/12 10:10:21 AM
The favoured moral theory is that actions are right, or confer ubuntu
(humanness) on a person, insofar as they prize communal relation-
ships, ones in which people identify with each other, or share a way
of life, and exhibit solidarity toward one another, or care about each
other’s quality of life. Such a principle has a Southern African pedigree,
provides a new and attractive account of morality, which is grounded
on the value of friendship, and suggests a novel, companion con-
ception of human dignity with which to account for human rights.
According to this conception, typical human beings have a dignity by
virtue of their capacity for community or friendliness, where human
rights violations are egregious failures to respect this capacity.
More specically, I argued that human rights violations are well
understood as failures to treat people as specially capable of friendly
relationships, often taking the form of extraordinarily unfriendly
behaviour that is not required to protect the victims of another’s pro-
portionately unfriendly behaviour. I contended that this conception of
human rights violations straightforwardly accounts for many different
human rights in South Africa’s Constitution and naturally entails cer-
tain prima facie attractive ways of dealing with contemporary moral
dilemmas relating to land reform, political power and deadly force.
If I am correct that the interpretation of ubuntu provided here both
accounts for a wide array of intuitive human rights and can provide
concrete guidance for resolving present-day disputes about justice,
then the three criticisms regarding vagueness, collectivism and anach-
ronism have been rebutted successfully. Something fairly called ubuntu
can indeed be reasonably thought to serve as the foundation of a pub-
lic morality for South Africa and other contemporary societies.
UBUNTU AS A MORAL THEORY IN SOUTH AFRICA 559
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In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court's sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to develop a novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African-inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights.
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Regular reference is made, within the discourse around the South African Truth and Reconciliation Commission, to the fact that ubuntu, an indigenous world view, played a role in the process. This paper tries to show that despite these references, important analysts of the TRC (as well as many South Africans) had insufficiently accounted for this worldview in their critical readings of the Commission’s work and therefore found aspects of the process incoherent and/or morally and legally confused. I am not arguing that the TRC was not a deeply flawed process, but want to establish how powerfully this indigenous world view brought a coherency that not only enabled the TRC to do its work without incidences of revenge, but imbued politically and legally trapped concepts with new possibilities. The pervasiveness of this world view within eg. the second round of TRC testimonies is noticeable and show how often the critique on the TRC fails to take this dominant role into account and how many, seemingly contradictory or confusing, positions become coherent when regarded within this worldview. This view of interconnectedness, consistently expressed throughout the life of the commission, has wide implications for the interpretation of healing, the asking of amnesty, the rehabilitation of perpetrators, the interdependence of forgiveness and reconciliation in the process of achieving full personhood within a healed society. In the footsteps of Richard Bell, this paper locates this world view within a particular framework formulated as ubuntu by Desmond Tutu, as communitarianism by Kwame Gyekye, as ethnophilosophy by Paulin Hountondji etc. The paper also tries to understand how this interconnected moral self is formed and who the community could or should be that influences this moral self.