African human rights law journal

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chosen community. Here is Metz again, ‘what is valuable about

friendship or communal relationships is that people come together, and stay together, of their own accord’.20 What has emerged then is that the capacity for freedom is what underlies and gives value to the

capacity for community. It is in this sense that the capacity for freedom seems to be doing more work in Metz’s account of dignity than he acknowledges.

Even so, Metz will likely object that a communitarian moral theory need not endorse the conception of the individual as causally dependent on the community in the way I have been suggesting. He could argue that his project is really about the substantive moral aim of valuing communal harmony by which individuals ought to live. Thus, the argument concludes, the theory is sufficiently

17 Metz (n 2 above) 584.

18 Metz (2010) (n 4 above) 94.

19 In accounting for human dignity, Metz specifically asks: ‘What is it that makes us (typically) worth more than members of the mineral, vegetable and animal kingdoms?’ Metz (2012a) (n 4 above) 19. Perhaps, implicitly aware that some non-human animals also arguably have a basic capacity for community, he is keen to emphasise freely-chosen communal relationships as more valuable and thus as the basis for dignity. This is why I think the capacity for freedom is doing more work in grounding dignity in Metz’s theory than he seems to have realised.

20 Metz (n 2 above) 584.

communitarian. Yet, while it is true that on Metz’s theory, honouring friendly relationships is a moral goal, what the analysis so far has revealed is that it is not the only non-instrumental value worth valuing

– individual liberty and basic human rights are also taken to be non- instrumentally valuable. It seems to me that this tacit

acknowledgment of individual freedom as equally valuable as communal harmony further casts doubt on the theory’s claim to being communitarian.

I have two reasons for so thinking. First, if I am right that more recent expressions of the theory integrate two potentially-conflicting moral aims, then it does not follow straightforwardly that moral reasons for acting always derive from our valuation of community. Indeed, in certain borderline cases where these aims conflict, moral agents can have reasons for acting that derive neither from their valuation of harmony nor the aim of reducing discord. Since respecting human rights is something worth doing morally, and doing so sometimes goes contrary to realising harmony, it seems that moral agents can have reasons other than community-based ones for acting. Thus, it is not a straightforward matter that this is a substantive theory that prioritises communal harmony. Second, the valuation of individual choice and freedom seems to implicate the liberal commitment to a plurality of moral outlooks or conceptions of the good such that the theory seems to counter-intuitively undermine the substantive moral reasons it proposes by justifying moral outlooks that do not recognise honouring community as a non-instrumental value. Such a theory is anything but communitarian. Indeed, Metz’s theory strikes me as more liberal than communitarian despite the claims to the contrary. This is because if we take him seriously by truly upholding the value of individual choice and recognising a plurality of conceptions of the good, then it seems to me a belief in a theory that regards relationships as the bearer of the fundamental moral value would be merely optional.

However, perhaps Metz’s ubuntu theory cannot be neatly placed in a liberal or communitarian scheme. Perhaps this seemingly equal valuation of the individual choice and community is a unique feature of the theory, setting it apart from the extremes of liberalism and communitarianism. In what follows, I argue that, in attempting to incorporate the value of individual freedom within a single normative system that already prizes communal harmony as the fundamental moral value, Metz’s ubuntu theory is caught in the horn of dilemma.

3 Collectivism and individual freedom
One of Metz’s aims is to show that his version of an ubuntu-inspired moral theory is impervious to the charge of collectivism. As he

articulates it, the criticism is that such a theory with its21

uncompromising majoritarianism or extreme sacrifice for society … is incompatible with the value of individual freedom that is among the most promising ideals in the liberal tradition.
I should add that for a theory that already takes communal harmony to be the fundamental moral value, the criticism is even more acute. In this section, I intend to motivate the claim that Metz’s ubuntu theory fails to adequately deal with the criticism.

Let me quickly clarify this aim. Although I argued in the previous section that Metz’s theory is less communitarian than it purports to be, here I am claiming that even if the theory was sufficiently communitarian, it could not successfully resist the charge of collectivism – the criticism that individual liberty and communal harmony are incompatible.

Of course, the onus is on Metz to show that communal harmony and individual freedom are indeed compatible. But what would this compatibility amount to? It could not possibly mean that these values never conflict, since his integration of the deontological constraint into the theory is precisely to resolve such conflict. So by compatibility, Metz must have meant that his theory can either (i) incorporate both values while offering some criteria of ordering between them; or (ii) equally value communal harmony and individual freedom as non-instrumental goods, in which case it eschews any such ranking of moral values. Suppose then that Metz can tackle the problem and show that the values of communal harmony and individual freedom are compatible in either sense within his ubuntu-inspired moral theory. I suggest that there are three possibilities – I consider each in turn and outline the costs for his theory. I argue that each option represents a cul-de-sac and that consequently Metz has not convincingly shown that his theory is resistant to the charge of collectivism.
3.1 First horn: Individual liberty trumps harmony
Consider, for instance, the right of a gay person in a community that deeply abhors homosexuality and sees it not only as totally opposed to its established values (for instance the value of procreation), but also as a threat to the moral health and overall harmony of the community. The individual has the right to freedom of sexual expression, an entitlement the upholding of which would be in tension with communal values and harmony. In a world in which human rights are valued, it seems that the right to express one’s sexuality in ways that fall outside the dominant hetero-normative paradigm would remain valid and can be insisted on, even if doing so would hurt relationships or result in a substantial division in the community. Admittedly, there are cases in which this specific conflict

21 Metz (n 2 above) 533.

may not arise – for instance, if this form of sexual expression is consistent with communal values.22

Assuming then that there are conflicts between the values of harmony and individual freedom and that an agent must act, a moral theory that requires us to value these goods equally does not take us beyond the original conflict; it merely reproduces it. This is so because at the root of the conflict is our desire to regard these goods as equally valuable in themselves. If this is right, then it seems there is a rational compulsion on a theory that seeks to integrate both moral aims to provide a clearly-defined way of ordering these values in the event of a conflict. One possibility is to prioritise individual freedom over harmony. In this way, the theory retains the two values within the ubuntu normative system even though one of them – harmony –is merely instrumentally valuable. (In the above case, the freedom of the gay person ought to trump communal harmony and values.)

This may initially strike some as different to Metz’s view, seeing that he at various times clearly regards communal harmony as the fundamental moral value. He repeatedly emphasised that the fundamental moral value worth pursuing for its own sake is friendly relationships. Thus, we are enjoined to ‘prize or honour such

relationships’,23 and elsewhere he adds that one becomes a moral

person insofar as one honours communal relationships, ‘prizes identity

and solidarity with other human beings’ and that ‘an individual realises her true self by respecting the value of friendship.24 Moreover, in an earlier work, Metz claims that ‘as opposed to well-being or self-

realisation, this account of ubuntu posits certain relationships as constitutive of the good that a moral agent ought to promote’.25 Yet, it is not at all obvious that Metz is entirely opposed to ranking

individual freedom above communal harmony. The deontological aspect of the theory seems to work in part because individual freedom is so ranked. It implies that when these values are paired against each other, individual freedom should trump harmony.

In any case, it matters less whether Metz actually believes individual freedom should always trump harmony since my argument is that if he were to take this option, which clearly values the liberal ideal of individual freedom, then there are huge costs for his theory. One such cost is that it can only value harmony instrumentally – that is, relative

22 Disregard for the rights of gay and lesbian persons is a pervasive feature of many African communities and, interestingly, these attitudes and practices are justified on grounds of protecting communal harmony and safeguarding against whatever is divisive and harmful to communal harmony. If Metz is right, then there are grounds – specifically community-based ones – for withholding an individual’s freedom to sexual expression.

23 Metz (n 2 above) 539.

24 Metz (n 2 above) 540 (my emphasis). Once again, this last interpretation of the maxim seems to commit Metz to the view that respecting the value of friendship is merely a means to realising oneself, something he explicitly denies. See, eg, his response to Van Niekerk (n 10 above) 382.

25 Metz (2007a) (n 4 above) 334.

to individual freedom, the aim of achieving harmony is merely subsidiary. This supposition would ultimately render null and void the original ethical principle which obliges moral agents to promote harmony and reduce discord. Relatedly, this option completely strips the theory of any remaining claim to being communitarian since it would now appear that the fundamental moral value worth pursuing for its own sake is individual freedom. If I am right about my earlier claim that the theory cannot capture the causal dependence of the individual on the community, then, by prioritising individual freedom over harmony, it cannot possibly capture the communitarian belief that achieving harmonious community is the fundamental moral aim. What is more, this option would make the theory degenerate into a version of liberal theory, in which case the charge of collectivism does not even begin. Any attempt then to defend the theory against that charge would amount to a fictitious exercise.
3.2 Second horn: Harmony trumps individual liberty
Again, if compatibility means that a single normative system merely integrates two potentially-conflicting values, then, assuming that we are faced with a conflict, another way to order these values is to prioritise harmony over individual freedom. In this case, considerations of communal values and harmony should trump the individual’s right to sexual freedom. In the original statement of the ubuntu-inspired ethical principle, Metz seems to have done this by explicitly endorsing the principle that ‘an action is right just insofar as it produces harmony and reduces discord; an act is wrong to the

extent that it fails to develop community.26 Once again, this option

may retain the value of individual freedom alongside communal

harmony. However, in cases where individual freedom conflicts

directly with harmony, this option would imply that the moral agent

does the right thing in promoting harmony.

I should note again that, although this is one way of integrating the two values within a single normative system, this does not seem to adequately characterise Metz’s position since, as already indicated, he has incorporated a deontological constraint in the theory barring moral agents to promote harmony by way of undermining individual freedom. Yet, there are costs should Metz take this option. One obvious one is that the theory would be unable to fully capture the value we place on individual freedom – that is, it cannot account for it as non-instrumentally valuable. I think it is fairly uncontroversial to regard most, if not all, basic human rights as valuable in themselves. In the rights to life, dignity, freedom, and so forth, are enshrined basic goods that are desirable in themselves, not merely as a means to some more fundamental value such that when that more fundamental value cannot be secured, protecting these rights would be optional. Alternatively, these rights may be violated in the promotion of that

26 Metz (2007) (n 4 above) 334.

fundamental value. The Universal Declaration of Human Rights (Universal Declaration) and the South African Bill of Rights, which rights contained therein Metz discusses extensively, assume this much. If this were not the case, then not only would the obligations they impose require further justification, but also the very fact of having them would be counterproductive.

A moral theory that values individual freedom merely instrumentally is inadequate and would be the ideal target of the charge of collectivism. Should Metz take this option, his theory would be unable to fully account for individual freedom. Moreover, taking this option would fall far short of Metz’s own promise to go beyond what other

ubuntu proponents have said on the matter.27 And they are all

generally agreed that the value of individual freedom is only

secondary. So, should Metz take the option under consideration, then

his theory would be no better than the ones he disapproves of.

Indeed, the charge of collectivism is in part the criticism that if

communitarian and ubuntu-inspired moral theories acknowledge

individual rights, they do so instrumentally. Moreover, an instrumental

valuation of rights fly in the face of the supposition that rights

represent basic moral goods that are desirable in themselves

something I claimed is implicit in the South African Bill of Rights and

the Universal Declaration.

I should reiterate that, although each of the horns considered so far seems not to fully capture Metz’s position on the matter of the compatibility of harmony and individual freedom, my claim is that there are potentially-damaging costs for the theory should he opt in favour of either. What then fully captures Metz’s account of the compatibility between these values?

3.3 Third horn: Harmony and individual liberty are equally valuable
Let us suppose that the two previous options do not sufficiently reflect Metz’s view. In that case, a more plausible representation of his view would be that he fragments the fundamental moral aim in a way that permits honouring both values. That is, Metz’s view is that moral agents should equally value harmony and individual freedom. Indeed, this strikes me as Metz’s strategy, not only in entertaining two conflicting values in one single theory, but also in tackling the charge of collectivism. One reason motivating this characterisation of Metz is that he proposes what appears to be conditions under which moral

27 Metz (n 2 above) 533 clearly promised to do better than other ‘self-described adherents to ubuntu’ who have ‘done little to dispel such concerns’ – that is the idea that an ubuntu-inspired theory cannot adequately value individual freedom. In this connection, he quotes GM Nkondo ‘Ubuntu as a public policy in South Africa’ (2007) 2 International Journal of African Renaissance Studies, who sees an ubuntu-inspired theory as expressing ‘the supreme value of society, the primary importance of social or communal interests, obligations and duties over and above the rights of the individual’; Metz (n 2 above) 533.

agents would have reason to either sacrifice the aim of promoting harmony or the aim of respecting individual liberties.

The first condition is captured in the deontological constraint. Here Metz cautions against promoting harmony at all costs. He specifically claims that when doing so would violate an individual’s legitimate

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