Ubuntu Jurisprudence

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

South Africa's Constitutional Court had existed for less than a year when it took up a case that would decide whether the state could go on executing people. S v Makwanyane and Another was automatically referred to the new Court in 1994 under the interim Constitution, and on June 6, 1995 all eleven justices agreed, unanimously, that capital punishment for murder violated the rights to life and against cruel, inhuman or degrading punishment. That the vote was unanimous is itself remarkable for a court's very first major constitutional case; what makes the judgment still taught today is that all eleven justices wrote or joined separate opinions rather than simply signing one text, and several of them reached for the same word to explain why: ubuntu.

The word does not translate cleanly into a single English legal term, and the justices who invoked it, Yvonne Mokgoro, Albie Sachs, Ismail Mahomed and Pius Langa among them, did not all use it identically. Broadly, they drew on ubuntu's core idea, that a person is a person through other persons, to argue that the death penalty is inconsistent with a vision of justice grounded in communal interdependence and the possibility of restoration, rather than one built on retribution alone. They were not inventing this connection from nothing. The interim Constitution's own postamble had already invoked the word directly, closing with the statement that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation, language the drafters of South Africa's transition from apartheid wrote in deliberately, anticipating exactly the kind of case the Court was about to decide.

Opinion polls at the time showed most South Africans favored keeping the death penalty. The Court struck it down anyway, grounding part of its reasoning in a value drawn not from English or Roman-Dutch legal tradition, the two sources South African law is usually described as blending, but from indigenous African ethical philosophy, given constitutional standing for the first time. That combination, a court willing to overrule majority preference on a founding rights question, doing so partly by reasoning from a customary ethical concept elevated into constitutional argument, is what makes Makwanyane a case comparative lawyers keep returning to, not only South African ones.

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

Not every South African legal scholar who has written about ubuntu's place in constitutional law agrees that a concept this open-ended belongs in constitutional adjudication at all. The doctrine's defenders and its skeptics broadly agree on what ubuntu did in S v Makwanyane and in the cases that followed it, most notably Port Elizabeth Municipality v Various Occupiers (2004), where the Constitutional Court invoked ubuntu as, in its own words, the underlying motif of the Bill of Rights. Where they part ways is on whether a word this hard to pin down can supply a court with a workable legal standard.

The vagueness objection is a familiar one to any lawyer skeptical of open-textured principles. The commentator Eusebius McKaiser has called ubuntu a terribly opaque notion, one that leaves a judge's ruling depending, as he put it, on what the judge had for breakfast, and even Constitutional Court Justice Yvonne Mokgoro, one of ubuntu's own judicial champions, has conceded that the concept can only be grasped on a know it when I see it basis. The underlying worry is that a word like ubuntu, drawn from Nguni and cognate Southern African languages, does not on its own supply the precision a judge needs to reach, and publicly justify, one particular outcome over another in a hard case.

The philosopher Thaddeus Metz, writing in the African Human Rights Law Journal, has done more than almost anyone to answer that objection rather than concede it. Metz constructs a specific ethical principle out of ubuntu, centered on honoring communal relationships of identity and solidarity, and argues that this philosophical interpretation is not vulnerable to the vagueness, collectivism and anachronism objections leveled against looser uses of the word. He concludes that all three criticisms, read against his own precise version of ubuntu, have been successfully rebutted. This atlas records the disagreement rather than resolving it: whether Metz's more rigorous ubuntu can bear the doctrinal weight the Constitutional Court has periodically placed on the looser version of the concept remains genuinely open among the scholars who study it most closely.