The 'Inefficacy' Of Human Rights Universalism And The Relativism Of Cultural Norms.

IVR Brazil 2013

This paper intends to be the continuation of a preliminary paper prepared for the XXV. World Congress of Philosophy of Law and Social Philosophy - IVR 2011, Frankfurt titled: "Decolonizing Legal Theory: The Way Ahead for the Breakthrough of African Legal Theory". Unfortunately that paper was abruptly closed due to some irregular procedures occurred during the IVR workshop. This paper will thus intend to, despite the numerous irregularities encountered during the way, complete the intuitions opened with the 2011 IVR paper.

The starting point of this meditation will begin with one of the central arguments advanced in the IVR 2011 paper: the consideration that social contract theory and contract law is a Western exogenous and un-African legal transplant at the root of a distorted and wrong understanding of the conception of the state and of Law in Africa, as in general jurisprudence as well by derivation, as will be explained in this paper.

I. Western Legal Theory and Non-Western Normativity.

In fact it is clear, or at least should be clear, for any legal anthropologist that has seriously studied the reference legal anthropology books, literature and scholarly work that non-Western societies were not organized around the structure of the state neither socially nor politically, and that the state par excellence is the main exogenous foreign legal transplant introduced and imposed upon African societies, as well as the majority of other colonized societies, by the process of colonization. When we say state we mean social contract theory. The presumptive idea that civil society begins and originates with a hypothetical social contract between the parties, and the renunciation of the individuals freedoms to a third neutral party that will from thereon function as the exclusive legitimate authority for the production of normativity and the monopoly of violence. This idea of the origin of society in social contract theory is a falsification of a western culture specific monistic view of legal theory and its intended projection on foreign non-western societies. A projection or falsification needed to justify the colonization process and serve the purpose of colonization, which was the exploitation of the colonized country in view of the economic interests and economic priorities of the colonial power. The colonial administrator was consciously aware one of his primary tasks was to put in place, create, and build the colonial state structures and institutions to enable the colonial administration of the country, which were thus absent.

African societies, which will be momentarily the only ones considered for the discussion of this paper, at the time of colonization did not have and lacked a concept of state or sovereign state as intended in the West. In fact this idea of state as sovereign, absolute sovereign, as Leviathan, emerges in a specific period of time and geography of Europe, precisely in England in 1651 with Thomas Hobbes. Thomas Hobbes can be legitimately considered the founder of Western modern political philosophy. Other philosophers have discussed social contract theory, like J.J. Rousseau, and sovereign absolutism like Jean Bodin, but only Hobbes can be considered the one upon whose theory contemporary state theory still relies upon.

It is important to know this and understand this clearly because the main societal dysfunctional problems faced by African societies today are still depended on this wrong conception of the state. And by way of reflection a key to understand the falsity of social theory in itself as a wrong theory of the origin of society also in the western world, or western legal theory, and as such at the root of the failures also of our modern states structure and international geopolitical and juridical organization. Ex Africa semper aliquid novi - Pliny the Elder meaning: Africa always brings [us] something new, or [Always something new out of Africa]" - Historia Naturalis bk. 8, sect. 42.

I will get back here to the main author I had picked for my IVR 2011 dissertation and what I defined the Muntu conception of Law, or The conception of Law of the Human Being, or the specific African Conception of Law (meaning that it is the African viewpoint for a Universal Theory of Law valid for all Human Beings, but derived from an African cultural understanding): Bénézet Bujo. Here is his fundamental intuition: "The human being does not become human by cogito (thinking) but by relatio (relationship) and cognatio (kinship). The fundamental principle of this ethic is not cogito ergo sum (I think therefore I am), but rather, cognatus sum ergo sum (I am related, therefore I am)"[1].

What does this mean? It means that the foundation of society, the origin of society is not to be found on an abstract idea of a social contract convention among human beings, but rather on the very radical relationship of their concrete existence. A community is first and foremost the product of natural concrete bonds made of flesh and blood. It is the concrete existence and presence of a system of kinship relationships of people interrelated by blood and family ties. It is a living organism, a living community, tied by the bonds of life and bloodlines one with the other, in a holistic view of the living and of the world. It is therefore the exact opposite of the western abstraction of an ideal hypothetical imagined rationalized foundation of society. It has nothing to do with that. Absolutely in contrast to this formulation the African theory of the origin of society is grounded to earth and is the concrete picture of community as it is in its effective existence, as it is present in the ordinary life of the human beings species. This analysis, adherent to the structure of society as it is in its community patterns gives it an undoubted epistemological superiority in comparison to the Western one. Social contract theory fails to explain the origin of society and as such in not able to provide a true and valid, and viable theory of law and state and therefore of normativity for any kind of society, and not only western societies.

It is time that a serious challenge and critique of Hobbes theory of the Leviathan is put in place. A theory that has brought about only a world of fear, of domination, of coercion, of antagonism, hostility, mutual distrust, and power relations at all scales. It has been a theory for the worse and not for the better and it would be well time that the world evacuates it as it deserves: a wrong theory.

Bénézet Bujo begins in fact the first chapter of his book the Foundations of an African Ethics with the anthropological point of view: Starting point and Anthropology.

II. For An African Theory of Normativity - Bénézet Bujo and the Foundation of An African Ethic.

Let me quote directly from Bénézet Bujo: "For Black Africa, it is not the Cartesian cogito ergo sum (I think, therefore I am), but an existential cognatus sum, ergo sumus (I am known, therefore we are), that is decisive. It is interesting to note that Jospeph Ratzinger arrives at a similar conclusion by means of his Christological reflections: "Christian faith does not find its starting point in the atomized individual, but comes from the knowledge that the merely individual person does not exists. Rather, the human person is himself only in an orientation to the totality of humanity, of history, and of the cosmos. This is an appropriate and essential dimension of the human person as 'spirit in body'.

In my opinion, Ratzinger shows very convincingly that an isolated individual or human cannot exist since no person is a tabula rasa whose life is an entirely new project. To be human always means sharing life with others in such a way that, as Ratzinger puts it , "the pas and the future of humanity are also present in every human being. " the very fact of language allows us to observe this reality, since it links us to the past, determines our present, and allows us to project the future. The dependence of human beings on one another which we note in the case of language naturally holds even more true in the case of our bodiliness: human beings are descended from one another. And something similar must then be said of the human spirit too, as Ratzinger affirms: "We initially affirm this descendance in physical terms... but it means that for the human being, who is spirit only in the body and as a body, that the spirit too - in simple terms, the single and entire human being - is marked most profoundly by the fact that one belongs to the totality of humanity, of the one 'Adam'". This approach allows Ratzinger to distance himself from the Cartesian cogito, ergo sum, since the real human person cannot exists as a solitary "I" - even in the act of knowing, one exists only in the fact of being known. Ratzinger quotes with approval Franz von Baader's criticism of Descartes, when von Baader calls for a turn from the cogito ergo sum to a cogitor ergo sum, that is, " I am thought, therefore I am". Ratzinger comments: "it is only on the basis of his being known that the knowledge of the human person and this person himself can be understood".

This approach, which explicitly emphasizes the "relational dimension", is very close to the approach of Black African anthropology. One must, however, point out that the latter does not limit itself to the "relational dimension" between individuals, as in personalistic philosophy, but is concerned rather with the relationship of the individual to the community and vice versa. This is why I believe that the transformation of the Cartesian formulation into a cogitor achieves too little, as long as it remains within the metaphor of "knowledge". For in the last analysis, a whole community could go so far as to refuse to let an individual "be known" as happens all too often, especially in Western society with its emphasis on individual achievements; by contrast the principle cognatus sum does not depend on society's assent. It is not only a given; it is existential to such a degree that refusal to accept it must lead to the death, not only of the individual but even of the community itself. This kind of relational dimension does not primarily or exclusively involve a historical dependence on bloodliness and spirit such as Ratzinger emphases; from the Black African perspective, the concrete and unbroken interaction among all the members of the community seems to be much more decisive. (...)

Black African ethics goes beyond the concrete, visible community to embrace the dead as well; indeed, even those not yet born constitute an important dimension. This inalienable fundamental principal of African ethics has been repeated so often, in an almost proverbial formula, that people virtually know it by heart: "I am because we are, and because we are, I am too". This principle articulates the conviction that each one becomes a human being only in a fellowship of life with others. This does not refer exclusively to an ethnic group, although such groups are the initial basis for all further "relations". Behind this lies the view that the human person acts more effectively to the extent that he holds fast to solidarity with those like himself; for thus he raises the quality of the vital force not only of himself, but rather for the entire community, indeed for the whole humanity. This shows us a universalist perspective, since hospitality, daily friendship, dialogue with the members of other ethnic groups are vital laws which no one is excepted. One who is not a member of my group is ultimately also the "property of the other", just as I myself am, and this means that I owe him respect and esteem. Thus one is ultimately related to all human beings.

Continuation of the quote, which is quite long but worthwhile to be quoted extensively to make clarify once and for all the things needed to be known. And also because African intellectuals are rarely read by Western scholars and African philosophy and social structures barely known to the general public.

"This principle of solidarity does not in the least mean that the individual loses his identity in and because of the group. As we shall discuss in greater detail, the individual is indispensable, since each person must express his ethical conviction in such a way that he includes the entire community. For example, the individuality in Africa is emphasized by the fact that each one has his own name, which is different from that of his parents. Besides this, African ethics attaches great importance to intentionality in the ethical conduct of the individual. In the past, some scholars have asserted that the human person in Africa is ethically subsumed under the ethnic group to such an extent that he scarcely merits to be considered as an autonomous ethical subject; but recent research has proven conclusively that the group does not at all dissolve the ethical identity of the individual. This is confirmed in a number of proverbs. For ethical reflection, the heart of each individual is an important locus of ethical conduct and of the integration of ethical norms.

Alexis Kagame has correctly drawn attention to another decisive organ for individual responsibility in the ethical realm, viz., the liver, which, among the Baluba, for example, is regarded as the locus of a number of feelings such as love, desires, and suffering, but is also decisive significant fro the will, since intentional actions likewise proceed from the liver.

Ethical insights involves, however, more than just the individual, who depends on others if he is to understand and discern moral aright. There is a great deal of evidence for the decisive importance of community in regard to morally correct action; one obvious example is sexuality. It has been rightly noted that homosexuality is rare in traditional Black Africa, and the reason for this is precisely the communal dimension: south of the Sahara, the fundamental anthropological conception in Africa is both bipolar and tripolar. One is a human being only in the duality of man and woman, and this bipolarity generates the triad man-woman-child, which leads to full community. Against this background, a man-man, woman-woman relationship would not take the step of full human existence; it also leads to a sexist discrimination against part of the human race and shows an unwillingness to accept the enrichment that comes from heterogeneity. This argumentation, which is not based on natural law, can be maintained even where there is no progeny (so that the triad man-woman-child is lacking), since where the bipolarity exists, it is possible for the tripolarity to be supplied in another way, for example, by means of polygamy, thus integrating a childless bipolarity into the triad. Naturally, this does not mean the model is above question. As we shall see later, the community can certainly arrive at a different ethical model - a process that nevertheless must be carried out by the community itself, not by reflection on metaphysics and natural law.

Something similar must be said about the question of incest. The prohibition of incest has deep roots in the concept of community and is thus not to be legitimated (as in the West) on the grounds that incest is contrary to nature. Rather, the homo incurvatus in se the one who is unwilling to share with other relatives not only offends against a "natural" feeling. The gravity of his action consists in the fact that both partners are unwilling to approach others outside their own familial ethnic group in order to exchange or share their blood with them.

Africans argue against lifelong celibacy along precisely these lines: one who remains unmarried for ife withdraws from solidarity with the other human persons, offending against the law of life. He is like a magician who ruthlessly destroys life, since a celibate is unwilling to take a share in the growth of life on the biological level and refuses to take his place in the duality of man and woman, which alone constitutes humanity.

Precisely because of the community is an inalienable dimension of sexuality, prostitution in the modern sense is scarcely possible in traditional Africa. Sexuality is not for sale. It finds expression only in the fellowship of the living and the dead.

Let us mention one other example, that of private property, which also does not exists in Africa in the Western sense. The individual indeed possesses a right of administration, but this is not devoid of the sense of community, since this right must always take into account the members of the family fellowship as a whole. The social doctrine of the Catholic Church, which justifies the right to private property in Aristotelian-scholastic terms by appealing to natural law, has nothing in common with the African attitude. Nor is the patristic justification in terms of a universal of a universal right to use of material goods. The same thing as the fundamental conception held by Africans south of the Sahara.

Let us once again emphasize that none of the arguments presented here claims absolute validity for what it says; they are certainly open to further dialogue with other models that argue along different lines. But it is decisive for them that the starting point should lie not in abstract principles but in concrete communities, whether inside or outside and call African ethics radically anti-platonic, since it remains in the "cave". "in the city, on the ground". Nevertheless, here too we can follow the line of thought that Walzer calls "right of reiteration" and speak of "reiterative universalism". The fundamental principle of reiterative universalism consists "in the reciprocal acknowledgment of the other as 'architect of morality' as a being who determines himself in and with a fellowship". "Reiterative universalism" allows universal principles to take on validity in particular instances, unlike the "covering-law universalism" in which the principles of justice and the standards for the good individual and political life are established in general terms, without any real possibility of self-articulation. This is why one can speak here only of images or incipient forms of true justice. This means that the African community ethic involves a "contextualistic" or "context-sensitive" universalism that is not reduced to a "covering-Law" universalism; both the cultural group and individuals within the community have the possibility of self-articulation. However, this context-sensitive self-articulation remains open to dialogue and receptive to other contexts. To sum p: both the specific cultural communities and the individuals within these must always speak in a locally defined manner, out of the "cultural cave", but at the same time their intention is to express something obligatory for the members outside their own contexts. Similarly, their acknowledgments of the right of other specific communities to formulate obligatory norms impels them to dialogue with these communities."[2] - End of Quotation.

It was necessary to quote the entire passage, although lengthy, to let the author express in his own words, which couldn't be more clear and effective, the conception of Law in Africa. It is also remarkable how true, simple, universal, and profoundly deep is the knowledge expressed by his words of this anthropo-philosophical view.

Thinking it over it is evidently clear that there is nothing complicated in law once this starting point and anthropological view is adopted, as evidently the real one, the true one, the realistic one. This is the correct anthropological orientation and starting point of any theoretical philosophy and theory of law. This is the dimension of anthropology in the study of law, that if dismissed brings about only falseness in the understanding of community, society, law, normativity, and innumerable useless derivative complications about the nature of the human being and how it supposedly should organize the 'perfect society'.

This theory is clear and simple. The community is first and not the individual. The community is a given. And as a given of the conditions of possibility of human existence it is not to be questioned. It is the starting point. And it is only from here, the true adherence to reality as it is given and presented that a theory of the nature of law can and has to begin, and out of which the nature of the human being finds sense and meaning. Beginning from this starting point there is nothing to decide. Things are set in a certain way and the way they are set provide the realistic elements upon which to move forward in the understanding and elaboration of a comprehensive adherent to the truth theory of Law.

This is epistemologically very important if we want to live by a true and truthful theory of law. Or what could be considered as natural law against positive law, or conventional law. This is important because Western legal theory has basically dismissed any possibility to the existence of natural law. Instead natural law exists and is well alive. Only it is not recognized by Western legal theory and as such appears to be inexistent and unable to provide key features to the understanding of law or contemporary problems.

Modern and contemporary Western legal theory is entirely positivistic and voluntaristic. Conventional in other words. As such it can be well not be considered law at all. Conventions are not law by definition. In the same way as violence, or the law of the strongest, is not law by definition. Therefore the entire western system of law is a failure. A failure which unfortunately is literally destroying the planet and the peaceful coexistence between human beings.

It is time therefore that a serious critique of Western legal theory is put forward. What is at stake is much higher and valuable than the prestige of a tradition or the pathological theoretical failures of a personality full of complexes like that of Hobbes.

It is important also that this overture for a "Humanism at the scale of the world" in the words of Aimé Césaire[3] comes from Africa, African philosophy and African conception of Life. Which is both a communitarian and holistic conception of the living. In the sense that the concept of 'community' is not reduced to the ethnic group, the human family, but to the much wider and immensely and infinitely broader whole living cosmos of the Earth and the Universe, including the whole myriad of living beings that together create the World and make the world of the living a living world. It is time to exist the reductive, restrictive, monocular, dry, egoistic, individualistic and idiotic view, in the Greek sense of the word idiotes, of the human being and of Life advanced by the West. It is time to seriously take into account the destruction committed by the West towards the planet and the severe critiques addressed to Western legal theories as epistemological presumptions in all fields of knowledge from other non -Western cultures and philosophies. It is important to seriously listen to words and positions as for instance, those spoken by Professor Onuma Yasuaki in "Globalization of international law" interview for the United Nations University Channel : http://youtu.be/n_7KxNiVDGQ . [4]

Or to take seriously into account the whole movement of the " deconstruction" in philosophy, inagurated by J. Derrida philosophy, and critical element of all contemporary studies in the social sciences, in the post-colonial studies, as in the critical thinking ongoing in all non-Western countries of the Latin Americas, India, Asia, and Arab world regions.

Today, in this current of thought, amongst all critical legal thinkers the most prominent of all might well be considered to be Professor Boaventura Sousa Dos Santos, Professor of Sociology at the School of Economics, University of Coimbra (Portugal)[5], with the reason why it is necessary to develop of epistemologies from the South.[6]

III. Questioning Normativity Through Non-Western and African Normativity.

But in this paper I will not start from Boaventura Sousa Dos Santos, but rather begin with an analysis of a lecture given by Professor John Gardner on "What is Legal Pluralism?" (Osgoode Hall Law School, 8 May 2013)[7] that I enjoyed very much, but also that brought me to re-think and re-question the question of : "What is Legal Pluralism?".

To proceed correctly it is in fact necessary to ask what is the difference between social norms and legal norms. It is important to ask this question when, as a legal anthropologist, in our field of study we deal primarily with societies that do not have specific legal norms, but precisely are regulated through social norms, or where there is no clear distinction between legal norms and social norms. It seems to me that this is a good start for an investigation on normativity. Both to investigate the issue of normativity in non-Western cultures as well as in comparison with a theory of normativity in Western legal culture. I have already partially advanced this position on my Facebook posting page, where I have put in correlation and in perspective the necessity to think the theory of norms or the "invention of norms" and "normativity" in relation to anthropology by selecting the most relevant seminars of the Ecole Française de Rome (year 2012). The Ecole Française de Rome has in fact organized a very interesting cycle of conferences and seminars on the "history of norms and the invention of normativity" in relation both to the conception of the state and anthropological studies. The Ecole Française de Rome could be in this regard considered to have functioned as a Centre for the study of normativity in Rome, of the utmost quality. Although many of the seminars and conferences invited for the need to put in correlation the investigation on normativity with anthropological studies the suggestion was not eventually developed in the seminars. Reason why I posted the cycle of conferences relevant for an analysis of their connection with a reflection on the theory of state and the theory of law in Africa, and thus with anthropology and anthropological studies, on my Facebook page, that is a sort of experimental space I enjoy developing through visual (photographic, iconographic) and non visual texts all kinds, as space of reflection on Africa and the Law.[8]

(Finished writing yesterday 21 November 2013 at 18h, from one of the public libraries of the city)

[1] Bénézet Bujo. The Ethical Dimension of Community: The African Model and the Dialogue Between North and South. - Discussed by Chielozona Eze, National Philosophia Africana, p. 2, 2001.

[2] Bénézet Bujo. Foundations of an African Ethic. Beyond the Universal Claims of a Western Morality. The Crossrad Publishing Company, New York, p. 4-8, 2011.

[3] Aimé Césaire. Discours sur le Colonialisme.

[4] "Professor Onuma Yasuaki is Professor at Meiji University Faculty of Law in Tokyo and Emeritus Professor of the University of Tokyo. He has also taught at various prestigious international universities, including the universities of Columbia, Michigan, Paris, Peking and Yale. Prof. Yasuaki's recent interests focus on the globalization of international law. He has published widely in international journals and edited volumes and he is the author of several leading works on international politics, legal order and war. In this interview for United Nations University Conversation Series on Global Justice, Prof. Yasuaki debates globalization and international law. "- UNUChannel

[5] "Boaventura de Sousa Santos is Professor of Sociology at the School of Economics, University of Coimbra (Portugal), Distinguished Legal Scholar at the University of Wisconsin-Madison Law School and Global Legal Scholar at the University of Warwick. He is Director of the Center for Social Studies of the University of Coimbra and Scientific Coordinator of the Permanent Observatory for Portuguese Justice. He is the coordinator of the research project ALICE – Strange Mirrors, Unsuspected Lessons: Leading Europe to a new way of sharing the world experiences, financed by the European Research Council (ERC), one of the most prestigious and highly competitive international financial institutes for scientific excellence in Europe." - Boaventura de Sousa Santos Internet Website.

[6] 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.

[7] Video: John Gardner on "What is Legal Pluralism?" (Osgoode Hall Law School, 8 May 2013) http://youtu.be/q-aTJgTTOA8