African human rights law journal



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AFRICAN HUMAN RIGHTS LAW JOURNAL

(2013) 13 AHRLJ 103-124

Strange bedfellows: Rethinking ubuntu and human rights in South Africa


Anthony O Oyowe*

Lecturer in Philosophy and Ethics, University of KwaZulu-Natal, Pietermaritzburg, South Africa



Summary

Can an African ubuntu moral theory ground individual freedom and human rights? Although variants of ubuntu moral theory answer in the negative, asserting that the duties individuals owe the collective are prior to individual rights (since African thought places more emphasis on the collective), Metzs recent articulation in this Journal of an African ubuntu moral theory promises to ground the liberal ideal of individual liberty. I pursue three distinct lines of argument in establishing the claim that Metzs project fails to convince – that individual freedom and rights cannot be successfully grounded in a moral theory that already regards some extrinsic value (that is, communal harmony) as the most fundamental moral value. First, I suggest that Metzs attempt to ground human rights in his ubuntu moral theory raises the problem of where the fundamental value lies in his theory. That is, in seeking to integrate two potentially-conflicting and non-instrumental values in his theory, Metz substantially modifies his original ubuntu ethical principle in such a way that the communitarian/ubuntu status of the theory is undermined. Second, I argue that, even if Metzs theory were sufficiently communitarian/ubuntu-like, it could not possibly ground individual freedom as a non-instrumental value. Third, I argue that Metz employs a tendentious reading of the concept of human rights; in particular, that he erroneously construes rights as duties. Since this last argument rests on a subtle distinction between individual rights and duties, I try to suggest how the distinction can be made in spite of the fact that these concepts are strongly related. Although I do not directly address Metzs treatment of specific human rights issues in South Africa, throughout I contend that these theoretical lapses cast enormous doubts on his overall project.

* BA (St Joseph), BA (Hons) MA (KwaZulu-Natal); oyoweo@ukzn.ac.za



1 Introduction


Respect for basic human rights is a very important feature of the modern world. This is in part due to the fact that they are politically salient and there are pragmatic reasons why people deeply care about them. A moral theory that fails to adequately capture the importance we attach to these rights would be considered by many as inadequate. Communitarian moral theories are often seen as exemplifying this theoretical deficiency. Consequently, proponents of variants of the theory have been burdened with the responsibility of accounting for the importance we attach to basic human rights and thus resisting the charge of collectivism – the accusation that such theories cannot sufficiently account for individual rights and liberties –

that has been persistently laid at their door.1 Yet, trying to account for

human rights within a normative system that fundamentally prizes

some communal or relational good over individual ones is like

attempting a trick the aim of which is to eat one’s cake and have it.

Metz’s recent contribution to the debate strikes me as one such attempt.2 He insists that, although other available alternatives of African ubuntu moral theory are susceptible to the charge of

collectivism, his preferred version can do the trick.

Notwithstanding my frivolous analogy, I believe that reading Metz’s article is worthwhile and repays close philosophical attention. It represents one person’s search for a distinctively African communitarian approach to morality that is suitable for public policy formulations on matters that are pertinent to South Africa, and perhaps Africa as a whole. Yet, disagreements there are bound to be when a moral theory is advertised in the public space as a panacea to conflicts and problems of monumental proportions. This article is an attempt to articulate some of my disagreements with Metz’s attempt to ‘construct an ethical principle that not only grows out of indigenous understandings of ubuntu’, but also ‘clearly accounts for the importance of individual liberty’ and ‘serves as a promising



foundation for human rights’.3 I think that ultimately Metz fails to

deliver on these promises. I pursue several distinct but interrelated

lines of arguments in establishing three central claims. In the first

section, I argue that there are good reasons to doubt the

communitarian status of Metzs ubuntu moral theory I explore what

it means for a theory to be truly communitarian and then express


1 See, eg, Gyekye’s defence of moderate communitarianism as better equipped in adequately accounting for individual freedom and rights than its rival, extreme communitarianism, in K Gyekye Tradition and modernity: Philosophical reflections on the African experience (1997); see also JO Famakinwa ‘The moderate communitarian individual and the primacy of duties’ (2010) 76 Theoria 152-166 for an insightful criticism of Gyekye’s view.

2 T Metz ‘Ubuntu as a moral theory and human rights in South Africa’ (2011) 11

African Human Rights Law Journal 532.

3 Metz (n 2 above) 534.

some doubts about whether Metz’s theory counts as one. In the second section, I argue that Metz has not successfully shown that individual freedom is compatible with an ubuntu ethic. My strategy is to explore three options available to Metz for establishing the compatibility of the two and argue that each one presents new problems for his ubuntu moral theory. In the final section, I cast doubts on the initial appeal of Metz’s account of human rights. My contention is that Metz’s account controversially proposes that rights are represented as duties.
2 The communitarian status of Metz’s ubuntu moral theory
In its simple form, Metz’s variant of the moral theory of ubuntu is unquestionably communitarian. But Metz has not offered us a simple theory; there are several layers of intuitions that have shaped the

development of what is now his preferred ubuntu moral theory.4 My

immediate aim is to examine in some detail some of his recent

philosophical commitments with a view to determining whether the

theory in its current expression still retains its communitarian pedigree.5 I think that we have reason to suspect that it does not. In particular, I argue that a moral theory is sufficiently communitarian if

it adequately captures the basic tenets of communitarianism. One such core aspect of communitarianism is its construction of the individual moral agent as necessarily embedded in a network of relationships. I take this to be the foundational claim about the causal dependence of the individual on the community. Alternatively, a communitarian theory should fully capture the value of community as a non-instrumental good. Implicit in this claim is the view that, in any hierarchical ordering of values, community should rank higher than

other alternatives.6 To be more specific, then, my view is that on both


4 See T Metz ‘Toward an African moral theory’ (2007) 15 Journal of Political Philosophy 321-341 for the original expression of Metz’s ubuntu moral theory. Since then, the theory has been developed and sometimes modified to include, eg, an account of human dignity, human rights, etc. The following publications represent the development in Metz’s and modification of his original intuitions about a distinctive African moral theory: T Metz ‘Human dignity, capital punishment, and an African moral theory’ (2010) 9 Journal of Human Rights

81-99; T Metz ‘African conceptions of human dignity: Vitality and community as the ground of human rights’ (2012) 13 Human Rights Review 19-37; T Metz

‘Developing African political philosophy: Moral-theoretic strategies’ (2012) 14



Philosophia Africana 61-83; T Metz ‘African values, human rights and group rights:

A philosophical foundation for the Banjul Charter’ in O Oche (ed) African legal

theory and contemporary problems: Critical essays (2013) (forthcoming).

5 Compare Ramose’s criticism of the African status of Metz’s ubuntu moral theory in MB Ramose ‘But Hans Kelsen was not born in Africa: A reply to Thaddeus Metz’ (2007) 26 South African Journal of Philosophy 347.

6 In characterising the core commitments of communitarianism, I rely on Bell’s threefold distinction of communitarianism as expressing a metaphysical claim regarding the communal nature of the self, normative claim about community as

core aspects of communitarianism, Metz’s favoured ubuntu theory is to be found wanting; indeed, it seems to veer dangerously in the direction of the liberal tradition.

Metz’s project on ubuntu begins with a critical survey of the available literature with the aim of articulating not the prevailing view of morality among Africans, but instead a justified moral principle that is faithful to values found in sub-Saharan Africa. In order to do this, he explores the term ubuntu and the associated maxim ‘a person is a person through other persons’. And having considered and rejected a variety of expressions of this maxim as an ethical principle, Metz settles for one according to which ‘an action is right just insofar as it produces harmony and reduces discord; an act is wrong to the extent




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