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By Jeremy de Beer
On 4 October 2017, Professor Thaddeus Metz from the University of Johannesburg gave a presentation to Rhodes law students on what ubuntu entails for legal justice and ethics. Metz, who has published over 200 papers, began by explaining the narrow definition of ubuntu, that being “a person is a person through other persons.” This entails a focus on what Metz refers to as “communion”, meaning our interactions with other people. Metz states that “one should strive to become a real person, which one can do by respecting people in virtue of their ability to commune, or one should live a genuinely human way of life (exhibit ubuntu), which means honouring people’s capacity to be party to relationships of identity and solidarity.”
But with whom do we commune? “Everyone is a potential site of communion, but on the other hand African ethics also subscribes to the view that partiality matters,” explained Metz. Metz elaborated on this to mean that “those with whom one has actually communed are, to some degree, owed more aid than those with whom one has not.” As such, people with whom we already have some relationship are more entitled to our aid than others (despite the fact that we all have dignity as human beings). To illustrate this point, Metz used the example of picking one’s own child over another child as a parent will have already communed with their own child. This also means that as the bond between lawyer and client develops and increases, so too does the lawyer’s duty to sponsor the client’s ends.
Metz states that “if what is special about people is their ability to relate communally, then the primary response to wrongdoing should be to mend broken relationships”. As such, ubuntu has at its core the ideal of restorative justice, focussing on reconciliation. But what is reconciliation? According to Metz, reconciliation is “a stepping stone towards full communion between parties that have been discordant that consists roughly of partial communion.” It is interesting to note that reconciliation does not require forgiveness in any Christian sense of the word but rather focusses on the relationship between individuals and individual justice.
Metz noted that while it is tempting for African jurists to reject the Western adversarialism of our courts since its competitiveness is prima facie (on the face of it) incompatible with reconciliation, we must not be too quick to dismiss adversarialism. This is because reconciliation requires truth, and sometimes adversarialism is the best approach to foster such truth. Furthermore, reconciliation does not mean that offenders should not be punished as to suggest this would be disrespectful to the victims. What it does suggest is that the punishment should be productive towards to the victim (for example doing labour to the victim’s benefit).
This means that hard treatment must not be imposed for its own sake, but must rather serve a productive and reformative purpose. This is in part because the victim’s family and friends should also be given consideration as the crime does not only affect the victim, but also those with whom they have communed (particularly in cases of murder). As such, the spirit of ubuntu would rather see perpetrators put to work with the proceeds going to the victim and the victim’s family as this is more productive than simply locking someone up.
Metz’ emphasised that his goal is to develop a moral theory of ubuntu that is concrete, not put forward an argument that a single court system infused with ubuntu is preferable to a dual court system.