The 'Inefficacy' Of Human Rights Universalism And The Relativism Of Cultural Norms.
IVR Brazil 2013
PART II.
In this second part of the paper due to the limited amount of time
and the succinct nature of this paper, I will only draw some general
reflections on: The Premises for an African Normativity and Authenticity in
Law.
Therefore, very broadly and without the intention of completeness, I will discuss three points:
1. The
absence of private property in traditional Africa and its impact for an African
conception of the Law and the State.
2. On
the nature of Law. The falsifications of law and law as a system of
reproduction of a certain model of society.
3. Premises for
an African conception of the Law and the State. The need to re-think the State and
the Law in consideration of the: a) disjunction between nation and territory; b)
the critique of social contract theory;
c) the nature and origins of obligation.
1.
The Absence of Private Property in
Africa.
As clearly described by Bénézet Bujo in
traditional Africa there was no conception of private property. The land
belonged to all, which means to nobody, if not the ancestors and the future
generations. In this paper in fact, I will not discuss the numerous crossing
types of land "ownership" or "land use" by sedentary and
nomad African peoples and tribes. For detailed information on these aspects see
Etienne Le Roy books.[1]
I will rather take a broader approach, and
discuss in a general way the very foundations of private property. In fact still in
many African countries today the records of the land registry are in way of
construction and much of the African land has not yet been registered. This
simply to remind that the land registry is an imported exogenous institution
brought by the West and the Western culture to Africans and has little or
nothing to do at all with African authentic traditional cultures.
The first and primary thing to know about
African traditional cultures is that African traditional cultures are
communitarian and not individualistic. Traditional authentic African cultures
are in all aspects communitarian societies, based and organized around the
prevalence and predominance of the community over the individual. This means
not only that the community comes first, but also that the awareness of the
person comes initially and foremost as a "We" and not as an
"I". The interior, the "inside" of a person's being is a
shared "personality". Meaning by that that it is common to the
members of the group. Thus by extension what happens to another member of the
group is something that directly affects the person as something happening to
the person itself, as a piece of one global unity. Thoughts and personalities
are shared and common, not in the sense of thoughts agreed to from different
individuals, but as common shared thoughts that constitute the being itself of
the persons of the group. This communitarian aspect has also been captured by
the phrasing: "Umuntu
ngumuntu ngabantu", which literally means that a person is a person
through other people. It is important to know this because it is
the first and most striking difference, among others, between African cultures
and European-Western cultures.
Western culture is based on what political
theorist C. B. MacPherson has described as "possessive individualism"[2]
in the modern era. But previously to the modern era it is possible to
trace the origin of "possessive individualism" already, and most
certainly in its central core origin of "possessive individualism" in
Roman Law, with the figure of the pater
familias. The pater familias was
not only the head of the household but also the owner of the members of the
family (tribe), having absolute power of life and death over them, and the owner
of the properties of the house.
With MacPherson we acknowledge that in the modern
era the phenomenon of "possessive individualism" is also in addition
at the root of the bourgeois conception of freedom and property, in other words of a certain type of economic
regulation, productivity, and a conception of rights and State.
Unfortunately
in the occasion of this paper I cannot detail the different conceptions of
property, but only hint very briefly at authors like Locke, Hume, Bentham,
Grotius, Pufendorf, and Montesquieu. A more extensive exploration will be the
work of a further essay, which will include also the institutions of Roman Law
and C. Schmitt theories. For the moment, due to the very succinct and synthetic
nature of this paper, the only relevant aspect I want to point out is the need
to re-question the foundations of property for a correct conceptualization of
the State. It is necessary to acknowledge that property is neither an evident
concept nor an originary institution. I will recall just briefly the names of
some of the theoreticians and theorizations that have seriously opposed and
criticized the "naturalized" origins of property, and simply indicate
that it is in this specific articulation that
the conception of State has to be reviewed.
Sketched very briefly the two sides of the
argumentation stand like this: Hume and Bentham oppose Locke theory of property
founded on the input of work into the object, and ground it in an association
of ideas, a moral sentiment, rather than a concrete real determination
pertaining to the things themselves. In
fact eminent philosophers of the height of David Hume and Jeremy Bentham have
criticized the idea of property as a right not originated in natural law but
rather as a product of human convention. Private property is not a given fact but
a construction. In particular for D. Hume property is an imaginary association
between a person and an object, an association of ideas in the imagination.
Property is a certain kind of association in the mind that does not derive from
a real determination in the things themselves. Thus for Hume property is
dependent on justice and not justice on property. Justice comes first and
property second, whereas for J. Locke property comes first and justice is what
preserves "natural" property. Locke establishes the basis of property
in natural law, and therefore the role of the institutions (primarily the
legislative) is to protect and secure individuals private property, whereas for
Hume, Bentham, Grotius, Pufendorf, property is not a given of natural law but a
product of human conventions and as such the role of the institutions is not to
protect and secure private property but justice which comes before property.
Justice being composed by those actions that relate to property, rather than conceived
as: "to give to
each his own" (suum cuique tribuere),
which implies that there is a "due" that comes before the actions
that have to do with property. Property is essentially a convention between
humans and not a right of natural law. [3]
This
aspect of the discussion would require more elaboration, but for the purpose of
the paper I can only, as said, just hint and sketch it, as did, very briefly.
Western law and the
conception of State in Western political theory is born out of the protection
of property. Social contract theory, as a theory that explains the origin of
society and the State is a "falsification" a "myth" intended
to serve the protection of property. The Civil Code is itself a codification of
laws put in place to protect private property, or better of the particular bourgeois
order of society.
The Déclaration des droits de l'homme et
du citoyen (1789) (in english: The Declaration of Rights of Man and of the Citizen) states that property is a human right and that it is absolute, inviolable and sacred. After the French Revolution, the Napoleonic Code (1804) will be the Code
that will structure and systematize the protection of the transmission of
property and that will reintroduce a society of owners and proprietors.[4]
The
right to property in France today is a constitutional right. It
is protected by the Déclaration des droits de l'homme et du
citoyen (1789) [5]:
Art.2 : "Le
but de toute association politique est la conservation des droits naturels et imprescriptibles
de l'homme. Ces droits sont la liberté, la propriété, la sûreté et la
résistance à l'oppression"
Art.
17 : "La propriété étant un droit inviolable et sacré, nul ne
peut en être privé, si ce n'est lorsque la nécessité publique, légalement constatée,
l'exige évidemment, et sous concision d'une juste et préalable indemnité".
And in the Civil
Code it is protected as follows: Code
Civil, Titre II, Livre II art 544 à 577:
Art.
544: "La propriété est le droit de jouir et de disposer des choses
de la manière la plus absolue, pourvu qu'on n'en fasse pas un usage prohibé par
la loi ou par les règlements".
In Italy the legal regime of property is governed by the Art. 832 of the Civil Code.
Source: Codice Civile, Libro III, titolo II - Della proprietà (Art. 832-951)
"Il proprietario ha diritti di godere e di disporre delle cose in modo pieno ed esclusivo, entro i limiti e con l'osservanza degli obblighi stabiliti dall'ordinamento giuridico [Cost. 42, 43, 44]." 6]
In Italy the Constitution states that the right to property has a social,
political destination.
Source: Costituzione, Articolo 42, Comma
3.
" La proprietà privata può essere, nei casi preveduti dalla legge, e salvo indennizzo, espropriata per motivi di interesse generale”.
For
a more extensive examination of the social destination of property in the
Italian Civil Code and the Constitution, see the work of Stefano Rodotà: Il
terribile diritto. Studi sulla proprietà privata e i beni comuni.[7]
Also very important for the alternatives
for an equitable, fair and more just society, is the pioneering studies by
Prof. Stefano Rodotà and Ugo Mattei on the Commons. [8]
The important element here is the social
destination (function) of property, in respect of the values of a system inspired by political
economic and social solidarity
and the substantial equality of all citizens.
The
other two important elements are the ordering function of property law,
and the concept of obligation as inherently related
to property.
The
origins of the right to property go directly back to Roman Law, in the specific to the institution of the dominium ex iure Quiritium, which stated the full and exclusive ownership of a thing, res, to an individual.
The
intent of this paper being that of only drawing the outline of a further in
depth work, it will not delve now in the particularities of these
considerations, but just point them out broadly. [9]
2.
On the Nature of Law. Law as a
system of reproduction of a certain model of society and Western legal
imperialism.
At first, it is necessary to revive the classic
Roman distinction between Ius and lex, or what in English would be
translated as the difference between right and Law. They are not in fact the
same. Lex can be considered as to be positive law (right) whereas Law instead
does not correspond to manmade law (Ius).
If we assume, as it is, that law (right)
reflects and reproduces a certain model of society, as in particular Roman Law for
Roman society, or apprehend today's contemporary law as a rationalization of Western society,
derived by extension from Roman law and society, we can easily see that what is
considered to be the Law, the universal law, is not universal, but a particular
law, a universalized law.
In fact, Roman law reflects a patriarchal
society. A society organized around the
figure of the pater familias, where
the majority of all Roman legal categories derive from a society that thinks
itself and is structured around the male patriarchal figure of the pater familias.
The law here therefore does not reflect the
order of nature, but the order of a particular historically and geographically
determined society, in the specific the modern transformation and evolution of
Roman society.
When this particular, circumstantiated specific
law, universalizes its categories and concepts and extends them worldwide it
functions as Western legal imperialism. It serves the purpose of a
historically-geographically determined mindset at a global scale.
Western law, or general legal theory, based on
the three main pillars of human rights, democracy and rule of law are not the
universal correct model of law and of organization of society, but one
particularly instantiated model among others, and not necessarily the best one
among all the possible models.
This is so true that the even in the West the
analysis and critique of Western democracy is at the forefront of contemporary
political studies. Pierre Rosanvallon, of the Collège de France, can be
considered in this regards the most eminent expert of the analysis of the
"pathologies" of modern democracy.[10]
Modern democracies have betrayed the ideals of
the French revolution and do not represent the perfect model of society and
neither the best regime of government.
In fact, the best typology of democracy is direct democracy. For in
direct democracies there is direct political participation. The citizens
participate directly to the issues that concern them and their territorial
communities. The link in fact between the territory and the community is very
tight.
These aspects of democracy are put into question
by modern individualism and modern individualistic societies, which no longer
hold the same unity in community, no longer holding the same social bond. The political concepts of
"community", "people", "social bond",
"polity", etc. are to be-re-thought in light of modern changes. Not
necessarily to adapt to modern changes but to examine the validity of the
concepts of "democracy" , "state", "human
rights", "community", "common good", etc. We are
explicitly invited to do so by Pierre Rosanvallon analysis.[11] These observations also lead us to the fact
that the other important element to be reviewed in general legal theory is the
legal status of law in the State. If, in fact, things are not as clear and as
perfect as they would initially appear, but on the contrary need to be
de-constructed, and de-colonized, and reflect a sort of legal imperialism, and
a fake universalism, then it is also necessary within the Western tradition to
re-think the status of law in the State, and evaluate whether it corresponds to
a false status or what is its degree of legitimacy, and if there is to go
further and beyond positive law. Being positive law perhaps not the ultimate
law, the ultimate degree of legitimate of law.[12]
I will now pass to a quick analysis of what might
be the consequences of the absence of property and this state of affairs for an
African conception of the State and the Law.
3.
Premises for an African Conception
of the Law and the State.
In short, the idea is that if
Western law, and general legal theory, reflects Western society, then this
implies that Western law and legal models are not necessarily fit for African
societies, which are structurally different. They are structurally different first
and foremost because they are communitarian and communalistic and not
individualistic. Another feature that characterizes African societies is that
they are matriarchal and not patriarchal. This has a relevant impact in the
conception of law and State. In fact, the legal categories change. Thirdly, the whole intent of the
"modernization" of Africa and "developmentalism" is a false
paradigm intended to eradicate African traditional cultures and especially their
communal dimension and to replace it with individualism, and with the basic requirements of
modern capitalism, enhancing all modes of plagiarism and mimicry of Western
"modern" models.
Western human rights, rule of law,
and model of democracy, are peculiar features of the Western conception of Law and
the State. With globalization the particulars of this specific culture are being
universalized worldwide, the intent being that of unifying and harmonizing
under Western law all cultures. If many
are the favourable aspects of Western law, nonetheless it is noteworthy to know
that Western law is serving primarily and almost exclusively the interests of the
capitalist economy. A modern model of economy, which is today global and as
such, needs a global law and independent international arbitration courts.
The relevance for picking up the
absence of property in African traditional systems is not only moved by the necessity to
find a concept of law and State fit for
African societies, but also more widely because it is useful to make the effort
to re-think the concept of Law and the concept of State in general legal theory,
since these concepts are not only not universal but might also reveal to be
inadequate to respond to the true nature of Law and the State.
At this point, it would be necessary
to advance a reflection on normativity. To elaborate a deeper look into the
sources of normativity and the nature of obligation. However, this also will be
postponed for a further article, not having the time to develop it at present.
Concerning property and justice
conceived as fair distribution and re-distribution of resources interesting
work is done by Stefano Rodotà and Ugo Mattei on the Commons. The theory of the
Commons has been much discredited by its adversaries, but globalization and
increased interdependency push for a renewed revisiting of its benefices.
Concerning epistemology and legal
categories it is necessary to begin with what Boaventura de Sousa Santos position: to re-think
Western legal categories from the epistemologies of the South.[13] One concept,
amongst others, with which appropriately one could start with, would be that of
the "person". In African
philosophy for instance, ubuntu is
the word that captures, as described above, a major structural difference with
the Western notion of the person, since it is a relational concept of the
person and not an individualistic one. The Italian philosopher Roberto Espositio, can
today be considered the contemporary philosopher that is working on the concept
of "persona"[14], and consequently of the
"impersonal" and the categories of the "impolitical".
These, just to
name a few, are some of the new paths to re-think the "social bond",
or what constitutes the unity of society and makes a society a community. As I had described in my IVR 2011 paper the
starting point for any thinking about an African conception of the Law and the
State in Africa has to begin with the notion of the human person, or the Muntu. I had defined in fact this theory
of Law as the conception of Law of the
Muntu. Also, the characteristic of Africa is the extended family, and the
family. And from there the derived
concepts of tribe, ethnic group, and so on. I had defined this orientation as family-hood, or human-hood. And its general outcome as African humanism, or a
humanism at the scale of the universe.
The other
notions relevant for legal theory and African legal theory would be that of
space and time, being space and time not the same in African epistemologies
(see cosmologies). [15] This discipline goes under the name of
Geo-Law. When these notions will be
better explored from the epistemologies of the South then it will be possible
to better conceive the notions of State, Law, and by derivation of nationality,
citizenship, and the role of human rights and the status of law in the State.
But at this
point I would need to go into the anthropological and cosmological if not
tightly philosophical examinations and dimension of the question. And unfortunately due to lack of time, it is
not possible in the framework of this paper. This paper is thus a broad sketch
and not a complete elaboration of the idea. Nonetheless, I deemed necessary to
point out what seems to me the way forward and outline the general picture.
[1] Etienne Le Roy. Espaces et identités disputés en Afrique noire, pratiques foncières
locales. Karthala, 1986 ; L'Appropriation de la terre en Afrique
noire, manuel d'analyse de décision et de gestion foncières. Karthala, 1990
; La sécurisation foncière en Afrique,
pour une gestion viable des ressources renouvelables. Karthala, 2000 ; La terre de l'autre. Une
anthropologie des régimes d'appropriation foncière. LGDJ, 2011.
[2] C. B. MacPherson. The Political Theory of Possessive Individualism. Hobbes to Locke. Clarendon Press, 1962.
[4] In ancient Egypt incest was allowed
only within the Pharaohs' dynastic transmission of the throne. Transmission of
the throne and property could thus remain within the dynasty. In Roman law the
system of property is articulated so as to keep the property within the pater familias household (tribe). A more
complete explanation of this is required and will be carried out in a further
paper, showing also the relations and connections between ancient Egypt and
traditional Black Africa.
[5] The
European Convention for the Protection of Human Rights and Fundamental Freedoms
also protects the right to property. Source:
Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms
as amended by Protocol No. 11. Article 1 – Protection of property: "Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law."
[6] (1)
Pieno = "Il proprietario può godere e disporre della cosa senza alcun
limite." (2) Esclusivo = "Il proprietario può escludere chiunque
altro dal godimento della cosa: inoltre è impossibile che sullo stesso bene esistano
più diritti di proprietà."
[7] Stefano
Rodotà. Il terribile diritto. Studi sulla
proprietà privata e i beni comuni. Il Mulino, 2013.
[10] Pierre Rosanvallon. Les pathologies de la démocratie: http://www.youtube.com/watch?v=qBr1_y6wf6E.
[11] Pierre Rosanvallon. Le
désenchantement démocratique: http://www.youtube.com/watch?v=a9qmfqNXCP0&feature=youtu.be
[12]
This also will be developed in a further paper, being this paper just a broad
outline of the general picture.
[13] See videos: Boaventura de Sousa Santos: ¿Por qué las
epistemologías del Sur? http://youtu.be/KB6RbYWfzk0; Boaventura- Epistemologia del
Sur (Parte 1) http://youtu.be/GaAh7B12Nd8
; Boaventura- Epistemologia
del Sur (Parte 2) http://youtu.be/J2TT9l7AIk8; Boaventura
de Sousa Santos. Justicia indígena, Plurinacionalidad e Interculturalidad en Bolivia http://youtu.be/h4a0JYOcZa4.
[14] Roberto Esposito. Video: "Persona":
http://www.youtube.com/watch?v=4apOyV62jps&feature=youtu.be
