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222 Chapter 9
But I am getting ahead of myself. First, let us contrast dignity and ubuntu
with a broad brush, as they have often been painted in the literature. Dignity
is usually associated with individual human rights, with a strong emphasis on
autonomy and personhood, while ubuntu is associated with communalism
and such virtues as loyalty and generosity. When it comes to
constitutional law in South Africa, however, what they have in common is
that neither seems easily reconcilable with reigning notions of legal
positivism. That said, ubuntu has been more persistently attacked as
supposedly untranslatable into a judiciable principle of constitutional law.
This is in part because dignity is clearly more familiar to Westerners and
more easily accepted by those scholars in South Africa trained in Germany
or in German law. For modern legal systems such as those of Germany
and Israel, dignity is a foundational principle. Article One of Germany’s
1948 post-war Basic Law makes human dignity an inviolable right and one
that is to inform the spirit of the legal system as a whole. The 1992 Israeli
Basic Law makes human dignity a fundamental moral ideal and a right
within the Israeli legal system. In international law, meanwhile, the 1948
Universal Declaration of Human Rights establishes the dignity of all
persons as the basis for freedom and justice in the world.
Dignity then, at least since World War II, has a rich legal history – one
that has certainly played a role in the development of the dignity
jurisprudence in South Africa, and many of us have argued that the depth
and breadth of the dignity jurisprudence is one of the most significant
contributions of South African constitutionalism. Can the same be said of
ubuntu? The answer is yes and no. Certainly one does not find ubuntu in the
Universal Declaration of Human Rights. On the other hand, if one puts
ubuntu in the rich tradition of African humanism and socialism – and I
think it should be connected to this intellectual heritage – then ubuntu (and similar
African ethical principles such as Ujamaa in Tanzania) has a very rich
history indeed, and one that places such principles at the heart of the
creation of a post-colonial Africa.
Given the troubled history of constitutionalism in Africa, the
legalisation of such principles has been mixed, yet they clearly play a major
role in defining the grundnorm of an ethic for a new society. A grundnorm is
Hans Kelsen’s word for the grounding moral or ethical principle that
undergirds not only the legal system but the society as a whole. 3 Such a
grundnorm was explicitly defended by many of the African leaders after the
revolutionary struggles for independence through principles of African
Humanism such as Ujamaa and ubuntu.
It is an honour to present this essay in the company of Justice Mokgoro
who has played such an important role in what Sam Fuller and I have
named the ‘recognition’ of ubuntu by the Constitutional Court. Justice
3 H Kelsen General theory of law and the state (1945).