Law and Revolution in South Africa

uBuntu, Dignity, and the Struggle for Constitutional Transformation

Drucilla Cornell

• Publisher: Fordham University Press
• Year: 2014
• Print ISBN: 9780823257584, 9780823257577
• eBook ISBN: 9780823257607
• Topic: Law
• Subtopic: Public Law
• Index: Law

The relation between law and revolution is one of the most pressing questions of our time. As one country after another has faced the challenge that comes with the revolutionary overthrow of past dictatorships, how one reconstructs a new government is a burning issue.South Africa, after a long and bloody armed struggle and a series of militant uprisings, negotiated a settlement for a new government and remains an important example of what a substantive revolution might look like. The essays collected in this book address both the broader question of law and revolution and some of the specific issues of transformation in South Africa.

III

The Struggle over uBuntu

6

uBuntu, Pluralism, and the Responsibility of Legal Academics

Pluralism is often reduced to a simple proposition. There are, in any given nation state, a number of competing social, cultural, and individual values, and these must be tolerated within an overarching sovereign order that both encompasses them all and allows them a degree of independence. Indeed, as John and Jean Comaroff have eloquently argued, there is a dialectic between neoliberal capitalism and the proliferation of values taken as facticity by our global society, because the hegemony of the Washington Consensus seemingly eclipses all the big ideals that once claimed to stand in for the ideal of humanity. Famously, one such ideal was an ethical, not simply an economic, version of socialism—from each according to her ability to each according to her need, to paraphrase Karl Marx’s famous phrase. As the Comaroffs have also insightfully argued, the terrifying encroachment of neoliberalism, with its endless force of reverse transubstantiation, has left many peoples and cultures few options but to enter the legal arena and battle for some kind of barrier against this force. It is against this background that I will discuss the significance of legal pluralism in the new South Africa, which is clearly connected to a struggle against the hegemonic domination of modern European conceptions of sovereignty, and with them the supply-side economics that purportedly is simply the other side of liberal democracy. I want to begin, however, with a discussion of the philosophical basis of pluralism that directly challenges the neoliberal view of competing world-views and value systems, all of which must ultimately be reconciled with the modern European notion of a thoroughly rationalized state and order of civil society.

Famously, one aspect of this push toward a thoroughly rationalized state was the movement of legal positivists who promised to turn law itself into a precise science. Historically, this effort begins in Germany with the philosopher Leibniz who devoted a lifetime to developing what he could defend as a fully scientific codified system of law. Leibniz, of course, is the first of many legal positivists who aspired to this idea of law as a science, both in codified systems of law and, more surprisingly, in Anglo-American systems of common law. From Hans Kelsen to H. L. A. Hart to the new positivists, such as Jules Coleman, the ambition is the same: to create a coherent set of rules that both identifies what law is and allows for the thorough rationalization of the rules of a legal system. Modern sociologists, such as Max Weber, were more cynical about what this process toward a rationalized legal system meant for human society, but still held that a rationalized system of law was inseparable from the inevitable disenchantment of the world and, with it, the end of the mytho-poetic thinking that had informed earlier customary notions of law.¹

The great neo-Kantian philosopher Ernst Cassirer displaced the notion that man—and I use that word deliberately—has a unique place in the universe because of reason and rationality. It is impossible in this article to describe the intricacies of Cassirer’s complex reworking of Immanuel Kant, and specifically, Kant’s notion of the schema.² We need to focus, here, on how Cassirer argued that human beings are not primarily rational creatures but, instead, are symbolizing creatures, whose difference with the other animals with which we share the planet is in the range and diversity of symbols and, with that, the unique distinction we make between actuality and possibility. For Cassirer, all forms of knowledge, including science and myth, are symbolic processes with their own inherent logic—a logic which can only be known by an intricate study of the symbolic form in its actual workings.³ According to Cassirer, all symbolic forms, including religion and myth, have an “I” standpoint, which allows for reflective judgment and a rational logic that is neither more nor less logical than any other symbolic form. Cassirer is important, then, because his entire work is a force against the assumption that modernity can be nothing else but the scientization of all reality, including social reality, and that this process of scientization would lead to the disenchantment of the world and toward a rationalized legal system. Mythical thinking on this Weberian understanding of modernity is necessarily relegated to the primitive and the superstitious—a way of thinking that will ultimately be overcome as more and more cultures concede to a modern European conception of human life. But, under Cassirer, pluralism is not a simple statement of the so-called social fact that there are competing value systems within any given society, but now becomes the recognition that the inevitable plurality of symbolic forms inheres in the very way human beings must approach their world, and that no one symbolic form, particularly that of science, will ever eclipse all the others in the great march of history towards European modernity. That said, the finite creature that we think of as a human being is marked both by ideality and universality in that all of human life and natural life only comes to us through a complex process of symbolization. Thus, the great philosopher of plurality is not a pluralist in the neoliberal sense. We may seem to have come a far distance from the question of legal pluralism, and particularly of legal pluralism within the new nation state of South Africa, but my hope here is to put the discussion of legal pluralism in a context that separates it from the value pluralism of neoliberal capitalism.

For this chapter, I accept Professor Chuma Himonga’s succinct definition of legal pluralism:

Legal pluralism in a deep sense . . . encompasses a situation in which non-State legal orders or normative orders, sometimes referred to as semi-autonomous social fields, co-exist with State law (including indigenous laws which have been recognized by the State as part of State law). The various legal orders existing in a State polity, that is, State law, indigenous law, and other normative orders are not completely independent of each other; they interact in various ways and at various levels. Presumably, their respective values also interact, or in some way rub against each other, so that they influence each other. In legally pluralistic States, therefore, one may find not only one but several, even mixed, legal cultures reflecting the interacting, diverse, legal systems.⁴

Throughout all of her work Himonga has argued that the living customary law of South Africa differs from both the English common law and the Roman Dutch law systems—the two systems that have historically made up the mixed legal system of the public criminal law and civil private law of South Africa. For Himonga this difference affects all aspects of law—the source of law, the ideas of law, the processes of law (such as rules of adjudication) and, indeed, how the very outcome of an actual legal conflict is envisioned. Thus, it affects the structure of the legal system, the institutions that make up such a system, and the form they take; the substance of the system, which is made up of rules, documents, principles, and statutes; and the culture of the system. First, the source of law is, to use Charles Taylor’s phrase, “action transcendent” and thus not secular. More often than not, the source of living customary law is related to the ancestors. Thus, although the living customary law can evolve and change, and indeed certainly has been changing in accordance with the new constitutional dispensation, it does not change by a group of present living human beings gathering together and simply declaring the law changed. The change or evolution must take into account the roots of living customary law in the ancestors and the traditions associated with such a symbolic world. Secondly, the ideals of living customary law, such as uBuntu (to which I will return), have a profound effect on both the institutions of law and the actual rules and processes that guide legal conflict. As Himonga argues, in most living customary law institutions there is no formal lawyer present on either side; the rules of evidence are extremely flexible since the main purpose of the hearing is to let both sides tell their story; and what is sought is a solution and not a winner-take-all verdict. The solution entails the restoration of the breach of the social relationship, and therefore the remedies available go considerably beyond those of either the Roman Dutch private law or the English common law. Often the solution and restoration are evoked through a parable rather than through a conventional rule, and it is the parable that helps guide the remedy. In both Roman Dutch law and English common law the remedy of correction and restoration is usually funneled through much more conventional notions of repair and primarily through damages.

In the winter of 2004, I worked as a sangoma’s assistant, and I will use an example of how she solved a particular conflict, leaving aside the question of whether a sangoma should be considered part of the law.⁵ The sangoma had caught a young man who had stolen a television from an elderly neighbor. She and the young man returned the television to the neighbor. But the young man was further ordered to work for his neighbor for the next six months. The young man was an AIDS orphan, and therefore had not been taught the important ethical commitment and obligations that lie at the heart of the living customary law. For the sangoma, the only way for this young man to learn uBuntu was to do uBuntu. The young man accepted the order that he should work for his elderly neighbor and, indeed, the story has a happy ending in that they actually lived together until the young man graduated from Khayamandi High School. Roger Berkowitz has argued that “justice has fled our world” and that “lawfulness . . . has replaced justice as the measure of ethical action.”⁶ But as this example shows, both the sangoma’s remedy and the acceptance of the young man to do uBuntu to the neighbor he had harmed, are close to what Berkowitz defines as a view of law doing justice. To quote Berkowitz: “Law is the experience of friendship and mutual reciprocity that, as Aristotle writes, inspires the acts of grace that unite a plurality into a unity.”⁷ Of course, before we even begin to elaborate on the living customary law as always developing, we need to have an extensive ethnography. As Francois Devilliers argues, to state what customary law is all too often leads us back to the customary law that was inscribed by the colonizers of South Africa and, therefore, even statements about what the law is must be met with caution, since if it is living it is changing. But if the story I have just told is to show us anything, it is that justice may not have fled from this world, and that the living customary law is much closer to law as just relatedness than its other contemporaries in South Africa. Emeritus Justice Mokgoro, for example, has daringly argued that the entire spirit of the South African Constitution should be interpreted to embody the spirit of uBuntu.

uBuntu has purportedly been difficult to define and its use in law has been sharply criticized. For now let me define uBuntu as the African principle of transcendence through which an individual is pulled out of himself or herself back toward the ancestors and forward toward the community and toward the potential each one of us has. The famous phrase umuntu ngumuntu ngabantu literally means: “a person is a person by or through other people.” This phrase is often mistranslated with the addition of the word only; i.e., that a “person is a person only through other people.” There are innumerable phrases and parables that are used in Xhosa and Zulu to teach us about uBuntu, and this is only one. Still, since it is so well known, we can begin with it in our examination of uBuntu.

Each one of us has the potential to embody humanity, or humanness, understood from an ethical perspective. Further, uBuntu requires us to come out of ourselves so as to realize the ethical quality of humanness. We are required to take that first ethical action without waiting for the other person to reciprocate. uBuntu then is not a contractual ethic. It is up to me. And, in a certain profound sense, humanity is at stake in my ethical action. Thus, if I relate to another person in a manner that lives up to uBuntu, then there is at least an ethical relationship that exists between us. Of course, if the two of us relate to others around us in a manner that lives up to an ethical understanding of humanness then we will have created an ethical community. The second half of that phrase means that people live through the help of others. But it is not simply sustenance that is implied here, although that is part of it. It is, more importantly, that an ethical world can only be brought about if each one of us takes it upon ourselves to live in conformity with the complex ethical demands put on each one of us living in a community that aspires to be just (in Berkowitz’s sense of the word).

Thus, in a sense, uBuntu reconciles the longstanding Anglo-American feminist debate about whether justice or care should be given priority as the primary value. We can only act caringly toward an individual, in terms of uBuntu, if we also treat them with dignity and aspire to a just relationship with them. The relationship is not altruistic, but it is certainly one that denies that there is an ontologically based contradiction between selfishness and altruism. We are all served by living in an ethical community. So it is in our interest, understood in a particular way, to act ethically. The temporality of uBuntu is important here, for since we are “required to go first” it may not be in our immediate interest to act ethically. For example, if I give a bottle of water to someone who is brutally thirsty I may get nothing back from that person, besides, possibly, a “thank you.” But twenty years down the line my daughter may find herself thirsty and without water, and someone will give her the water she so desperately needs because I have helped to build a community that lives by this demanding ethic which provides support for all the members of the community in the long run. A famous isiXhosa saying is: “what goes out the front door comes in the back window.” The idea here is that we live in a force field in which ethical actions reverberate and encourage affirmative ethical environments. The closest we have in Anglo-American terms is “what you give out, you get back tenfold.”

It is important to note that uBuntu is not just an ethical ontology of a purportedly shared world, but an ethical demand to bring about a shared world. Critics of uBuntu often implicitly identify uBuntu with a conservative ethical ontology—one that is both hierarchical and patriarchal. What is missed in this criticism is precisely the activism inherent in uBuntu. uBuntu is an ethical demand which promotes the actual experience of building, enhancing and, at times, repairing the moral fabric of an aspirational community inherent in the notion of the uBuntu as the African principle of transcendence. As we will see shortly in a discussion of Emeritus Justice Albie Sachs’s judgment in Port Elizabeth Municipality v. Various Occupiers, what is at stake in uBuntu is the promotion of a dialogue in situations of conflict, of the sort akin to the ancient dialectical meaning of the term as it comes to us through logos. Such a dialogue is about confronting the situation at hand in its full sense. It is about questioning the history of colonialism to remind ourselves of the history, for example, of forced removals. It is about deeply reflecting on what is at stake in defending customary law, and what must be done to ensure the well-being of the larger community. The saying a botho bag ago a nne botho seshabeng, which literally means “let your welfare be the welfare of the nation,” points us again to how uBuntu calls us to an aspirational community in which my well-being or welfare is built and enhanced by seeking to ensure the well-being of the larger community in which it is necessarily rooted.

In his work with the San people, Kabir Bavikatte has also found that the understanding of the San, of their interconnectedness with one another and to nature, focuses more on virtue than it does on rights and their vindication:

A relational understanding of the self emphasizes less on rights in its engagement with the world and more on virtue—virtue being defined here as the sense that foregrounds one’s connectedness rather than separateness. The practice of virtue on a number of occasions also resolves conflicting rights through the practice of connectedness by the manifesting of what we term here as “relational sentiments” such a graciousness, kindness, love, compassion, patience and generosity.⁸

Ethics of virtue are often taught by parables, and the teaching of uBuntu is no exception. There are an infinite number of such parables in the Zulu tradition. One such saying is “the visitor’s stomach equals that of the size of a bird’s kidney.” The saying indicates that sharing your food with a visitor or stranger will not exhaust the host’s food supply. Hylton White did path-breaking work on conceptions of inhumanity amongst the Zulus. His work shows us that the ethical meaning of humanness or humanity is often demonstrated through parables of what constitutes inhumanity and that colorfully describe how inhumane behavior takes over the individual who promotes it. Such parables are often used in Zulu customary law to draw out the meaning of how a community has been fractured by inhuman behavior.

So far I have described uBuntu philosophically, and it is crucial to recognize that uBuntu is a philosophical ethic. It is important to emphasize this point because uBuntu, like m...

Table of contents

• Cover
• Series Page
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Introduction: Transitional Justice versus Substantive Revolution
• I. Should Critical Theory Remain Revolutionary?
• II. The Legal Challenge of uBuntu
• III. The Struggle over uBuntu
• Conclusion: UBuntu and Subaltern Legality
• Notes
• Index
• Series List