African human rights law journal

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fulfil their duties towards others, then the opportunities for friendship

and goodwill opens, whereas emphasis on individual entitlements may not necessarily be compatible with harmony and goodwill.39 It is all well and good when a communitarian theory enjoins individuals to

fulfil their duties towards one another. In fact, this is precisely what is expected of such theories – they typically prioritise duties over rights precisely because this is conducive to and consistent with the

37 Metz (n 2 above) 548.

38 Metz’s discussion of rights focuses almost entirely on duties of individuals and the state. See, eg, his treatment of the human rights to socio-economic goods where he claims that ‘with regard to solidarity … 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’ Metz (n 2 above) 550. It is easy to see how a sympathetic understanding of the situation of the poor can generate a duty on the part of the state and subsequently contribute to overall harmony, but this does not suggest any entitlement on the part of people. Can the citizens also justifiably insist on their entitlements even if this disturbs the peace and harmony?

39 The rights to liberty and privacy, eg, have tags built into them barring others in the first instance to keep their distance and thus do not necessarily provide a fertile ground for the flourishing of friendly relationships. To put it simply, a negative right is the right to be left alone and to do one’s bidding.

communitarian aim of promoting communal harmony.40 Yet, rights and duties are distinct notions.41

One way to fully distinguish between rights and duties is to consider the latter from the perspective of the rights holder. This is because they are in the first instance the rights holder’s basic privileges. The recognition that others have a duty not to interfere, for example, is dependent on the fact that such rights are in the first place entitlements or privileges a rights holder should enjoy. In this sense, there can be rights (for example negative ones) in the sense of entitlements even when there is no one to perform certain duties. That is, my right to life does not disappear if there is no one with a corresponding duty not to interfere (admittedly, what may disappear is the need to assert such a right, but the entitlement remains). Conversely, the notion of duties can be best appreciated in the first instance from the perspective of the duty ower. If I am right, then since Metz’s original promise was to demonstrate how his preferred version of ubuntu moral theory can account for the central liberal ideals of human rights and individual freedom, not necessarily accounting for the duties we owe each other, this emphasis on duties strikes me as inadequate.

Finally, if rights as entitlements are privileges, then they are valuable for the well-being and flourishing of the rights holder. In other words, from the perspective of the rights holder, asserting her basic rights to life, freedom, privacy, etc is an important way to ensure her well-being and flourishing. From the perspective of the rights holder, asserting a right is a matter ensuring her well-being or flourishing. For example, recognising and asserting my right to freedom are vital to my well-being and development for I could not possibly flourish as an individual in conditions of enslavement or the absence of freedom. So, it appears that at least from the perspective of the rights holder, human rights can be grounded in self-regarding concerns. In contrast, Metz thinks that human rights are more

plausibly grounded in other-regarding concerns.42

However, it seems to me that duties are more appropriately grounded in other-regarding concerns. My duties towards others derive primarily from facts about the other – facts about the other’s entitlements or needs, for instance. But my rights are in the first

40 Menkiti, eg, writes that African communitarian societies are organised around the requirements of duty. In his words, ‘in the African understanding, priority is given to the duties which individuals owe to the collectivity, and their rights, whatever these may be, are seen as secondary to their exercise of their duties’ (Menkiti (n 16 above) 180). See also Metz (2007) (n 4 above).

41 In private correspondence, Metz denies this distinction, arguing that to have a right just is to have a duty of a sort. My claim is that rights and duties are related but nevertheless distinct. For a detailed discussion of the distinction between rights and duty, see J Donnelly ‘Human rights and human dignity: An analytic critique of non-Western conceptions of human rights’ (1982) 76 The American Political Science Review 303.

42 Metz (n 8 above) 384.

instance entitlements I recognise and assert for my flourishing. I suspect that it is this belief that rights are grounded in other-regarding concerns that ultimately leads Metz to, I think erroneously, emphasise duties rather than basic rights. If I am right that human rights are more plausibly grounded on self-regarding concerns, then there are damaging implications for Metz’s ubuntu moral theory, namely, that in its current expression, the theory seems to imply that reasons for acting are at once other-regarding and self-regarding. This strikes me as incoherent. Yet, in making this point, I am only reiterating, albeit in a slightly different manner, an earlier point: that, in trying to accommodate two potentially-conflicting non-instrumental values – or two potentially-conflicting principles – Metz’s ubuntu theory exposes

an internal tension.43

Indeed, it is rather curious that a theory which explicitly claims that the fundamental moral value is extrinsic (that is, resides in something outside of the individual, namely, relationships) should proceed to define human dignity as an intrinsic moral value (that is, specific to the constitution of the individual and independent of relationships), and subsequently ground human rights on this intrinsic value. Such a theory betrays several levels of incoherence. At one level, it seems to claim that the moral value moral agents ought to promote is both intrinsic and extrinsic – and this despite obvious claims denying that

moral value is intrinsic.44 At another level, the incoherence has to do

with the fact that when there are conflicts between advancing either

value, the moral agent in advancing one must, necessarily, undermine

the other. But if moral agents do the right thing in undermining either

of these moral values, then the theory itself must somehow justify

sacrificing some value it regards as valuable in itself.

But that is not all. In the event of a conflict, a moral agent experiencing conflicting motivations with regard to the relevant moral values may have to appeal to something other than the values themselves in adjudicating between them, in which case either value is insufficient to motivate agents to act and a third alternative value would have been introduced to the theory. Alternatively, on the pains of undermining either value one would justifiably refrain from acting altogether – something that itself is deeply disturbing for a theory that is supposed to guide agents in acting.

5 Conclusion
Can an African ubuntu moral theory successfully ground individual freedom and human rights? I have discussed three distinct arguments in establishing the claim that Metz’s goal of grounding the liberal ideals of individual freedom and rights in his ubuntu moral theory fails

43 See Metz (n 8 above) 15-16.

44 Metz (n 8 above) 383.

to convince. My first suggestion was that Metz’s 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 Metz’s theory were sufficiently communitarian/ubuntu-like, it could not possibly ground individual freedom as a non-instrumental value. Third, I argued that Metz employs a tendentious reading of the concept of rights; in particular, that he erroneously construes rights as duties. I argued that, although they are related, these notions are nevertheless distinct.

All this leads me to suggest that an ubuntu ethic is not entirely suitable for grounding public morality. Perhaps for more industrialised and globalised societies, in which the liberal ideals of freedom and human rights are of paramount importance in shaping public morality, an ubuntu ethic can only play a much more restricted role than it did in pre-industrialised African societies.

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