Ubuntu and the Law: African Ideals and Postapartheid Jurisprudence

Ubuntu and the Law: African Ideals and Postapartheid Jurisprudence

Ubuntu and the Law: African Ideals and Postapartheid Jurisprudence

Ubuntu and the Law: African Ideals and Postapartheid Jurisprudence

Synopsis

This is the first comprehensive case Pub to address the relationship of uBuntu to law. It also provides the most important critical articles on the use of uBuntu, both by the Constitutional Court and by other levels of the judiciary in South Africa. Although uBuntu is an ideal or value rooted in South Africa, its purchase as a performative ethic of the human goes beyond its roots in African languages. Indeed, this casePub helps break through some of the stale antinomies in the discussions of cultures and rights, since both the courts and the critical essays discuss ubuntu as not simply an indigenous or even African ideal but one that is its own terms calls for universal justification. The efforts of the Constitutional Court to take seriously competing ideals of law and justice has led to original ethical reasoning, which has significant implications for post apartheid constitutionalism and law more generally. uBuntu, then, as it is addressed as an activist ethic of virtue and then translated into law, helps to expand the thinking of a modern legal system's commitment to universality by deepening discussions of what inclusion and equality actually mean in a postcolonial country. Since uBuntu claims to have universal purchase, its importance as a way of thinking about law and justice is not limited to South Africa but becomes important in any human rights discourse that is not limitedly rooted in Western European ideals. Thus this book will be a crucial resource for anyone who is seriously grappling with human rights, postcolonial constitutionalism, and competing visions of the relations between law and justice.

Excerpt

The dignity jurisprudence of South Africa may well be the most sophisticated in the world.

How and why we respect dignity has been given both secular philosophical justifications as well as religious justifications in the development of both International Human Rights law and the law of Canada and Germany. But in South Africa there is a South African ethical notion, ubuntu, which also gives shape and defines the meaning of dignity as both ethically and legally important. Both dignity and ubuntu are integrally tied to an ethical ideal of what it means to be a human being, and therefore one would expect that there is a resonance between the two. And yet to reduce ubuntu to any of the secular or religious European conceptions of dignity would be to miss its own contribution to giving shape and meaning to dignity. Respect for dignity lies at the very heart of the ethical relationship demanded by ubuntu; ubuntu, however, is irreducible to that respect.

In certain crucial areas of law, such as socioeconomic rights, ubuntu has shown its ability to help define obligations and even democratic practices, and must be part of working through the conflict-ridden situations often found in the demand for socioeconomic rights. Thus, ubuntu clearly demands respect and recognition of the dignity of all others. Furthermore, the relationship between ubuntu and dignity must be recognized, as they both have come to play an important role in the jurisprudence of the new South Africa, which is both rich and generative.

uBuntu, indeed, can help us think about the significance of dignity in the new South Africa, both as a legal concept and an ethical ideal. It is also particularly important to recognize ubuntu as a South African ideal since this Constitution is, indeed, an African one. This respect for African ideals, notions of law and conceptions of jurisprudence is long overdue, but that alone is not the reason ubuntu deserves to be recognized. As we have suggested, ubuntu has been necessary in the development of crucial areas of the Constitution, such as socioeconomic rights. The debate and . . .

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