I STILL often cheekily quote, without acknowledgement, the definition of “public morality”, given by one of my undergraduate law lecturers, as stuff that “depends on what a judge had for breakfast”. I wonder whether my lecturer also had ubuntu in mind?
Our Constitutional Court, in particular, references ubuntu with gay abandon.
This invocation of a supposedly distinctive African moral principle reveals the court’s desire to add a touch of the African to an otherwise western jurisprudential brew.
The truth is that ubuntu is a terribly opaque notion not fit as a normative moral principle that can guide our actions, let alone be a transparent and substantive basis for legal adjudication. In fact, it reminds one of the “African renaissance” motif. African renaissance is a concept similarly devoid of conceptual precision.
It is interesting to try to make sense of ubuntu and to reflect on why many of us feel compelled to render it meaningful.
Rather shamefully, it has taken an American philosopher, Thaddeus Metz who is now based at the University of Johannesburg (UJ), to force the wider South African philosophical community to invest some brain power into making sense of African ethics.
His first attempt to cut through various possible definitions, led Metz with the help of writing by folks like one Desmond Tutu of the Truth and Reconciliation Commission fame, defines ubuntu roughly as follows: ubuntu means that an action performed by someone is morally right if that action constitutes a way of living harmoniously or places value on communal relationships.
These are actions, in other words, in which people identify with each other and exhibit solidarity with one another. Behaviour that lack these features are not consistent with the spirit of ubuntu.
This definition is certainly a good start. Even though it refers to actions, the emphasis is clearly on relationships. Relationships, with some exaggeration, are deemed more important than one’s selfish interests. This is also why ubuntu is often cashed out in the form of a maxim to the effect that “a person is a person through other people”.
Your identity is partly dependent on, and constituted by, relationships with others.
And, if you desire to be a moral person, your actions had better demonstrate an appreciation of the requirement that morality’s fundamental point is to value relationships.
The critical question is whether this philosophising succeeds in getting us closer to a doctrine that can be practically useful in both our personal lives and in the public space, including the tricky enterprise of legal adjudication? The most optimistic answer must be, “Not yet.”
For one thing, this definition of ubuntu does not give us a doctrine that is unique to sub-Saharan Africa. To his credit, Metz comes close to acknowledging this fact but does some fancy philosophical footwork in shifting his claim to saying that the general emphasis on relationships is more widespread in sub-Saharan Africa than it is in western societies.
But it is surely anthropologically false to imagine that notions of “love” or “friendship” are not at the core of actual relationships between folks living in London or Berlin just because a couple of western academic philosophers had written texts that prioritise detached moral principles over more complex, relationship-focused ethics.
Western doctrines such as communitarianism can reasonably be interpreted, surely, as emphasising community not only for the sake of benefiting the individual but because community bonds — that is, relationships — are intrinsically valuable.
Ubuntu still appears like some kind of synonym for at least some versions of communitarianism, despite claims to the contrary by ubuntu’s loyal friends. This means that ubuntu does not capture anything in ethics or law that does not exist elsewhere in the world.
Besides not being unique, it is also not clear that we had succeeded in stating the content of ubuntu clearly and comprehensively enough to be useful for practical purposes. As Metz argues in his most recent work, the Constitutional Court relied on at least eight different definitions of ubuntu in the case of The State vs Makwanya, in which it declared the death penalty to be unconstitutional. Each of these definitions seemed rather ad hoc. Each one, if used consistently in other areas of law, would lead to counterintuitive results.
Two examples from the list of eight will suffice to illustrate the point. One judge argued that the death penalty violates ubuntu because ubuntu requires that we respect someone else’s life at least as much as we respect our own. But this cannot be so. Presumably when we kill in self-defence, doing so is okay? It is probably also morally acceptable to intentionally kill someone to save the lives of others, in circumstances such as when the offending person is committing genocide and refusing to stop? This particular definition of ubuntu would render killing in these cases immoral.
Another judge argued that ubuntu requires that one always try to rehabilitate someone in order to restore their humanity. Again, this colourful invocation of ubuntu as an African foundation for restorative justice intuitions is laudable, but surely incorrect since it desperately marries ubuntu to rehabilitation simply to give rehabilitation a more powerful aura than it naturally might carry. This is not great legal analysis, just deceptive usage of ubuntu for ulterior (though certainly agreeable) hermeneutical purposes.
What these random and rather wide definitions of ubuntu from a landmark Constitutional Court judgment demonstrate is that the very notion of ubuntu is elusive. This does not, of course, imply that ubuntu cannot be stated clearly and more narrowly. Indeed, there seems to be admirable normative philosophical projects at both the University of SA and UJ that do just that.
So far, however, these project are still very much works in progress. Until they yield substantive results, our reference to the notion of ubuntu will continue to say more about our desire to be clearly African than about our commitment to only use words and concepts whose meaning we actually understand.
This last thought explains why some of us are desperate to render ubuntu meaningful. There is a yearning — not restricted to the Constitutional Court — to find values and principles that we can think of as “African”. This, in turn, stems from a deeper need to have an identity that is not wholly handed down from our colonial forbears.
While these motivations are understandable, it is equally important that our identity crises do not get in the way of designing laws and policies that are sensible, but which might get set aside on the spurious basis that they are w estern rather than African.
If a philosophical value is most common in Europe, and has been explained and justified as a great and useful moral principle by someone of European descent, so what? We are free to import concepts that can help improve our lot as Africans, surely? We should dismiss western concepts only if the logic for them is poor or if they will not benefit us.
It is important that we balance our yearning and search for an African identity and ethics with a prudential acceptance that many western concepts are benign and some are even useful.
http://www.businessday.co.za/articles/Content.aspx?id=85698
Monday, November 2, 2009
Friday, October 30, 2009
No place for the immorality of violent polemics
POLITICAL morality should not be regarded as an oxymoron. Unfortunately, some South African politicians and their henchmen disagree. They include Kebby Maphatsoe, national chairman of Umkhonto weSizwe Military Veterans’ Association, Thebe Meeko, chairman of the African National Congress Youth League in the Free State, and Gwede Mantashe, African National Congress (ANC) secretary-general. These gentlemen have performed speech acts that are politically immoral. The lessons are twofold. First, it is important we hold public figures to decent ethical standards, not just legal ones. Second, there is a desperate need for the grammar of politics to change from violent struggle speak to nonviolent, rational speech.
Maphatsoe reportedly told former education minister Kader Asmal to “go to the nearest cemetery and die”. This was in response to Asmal’s very thorny criticism of the new government’s strategy for fighting crime. Opposition political parties are seizing the opportunity to put together a legal case against the military veterans, claiming that the speech amounts to hate speech. Legal pundits are joining the debate by whipping out sources of law and precedent that set out the test for hate speech.
This is not unimportant. If a law has been violated, then due punishment should be meted out. But a bigger issue might get lost in this legal fracas. It is the difference between law and political morality. Requirements of morality are often different to those of law. Not all that is morally desirable can or should be legally enforced. Not all that is legally permissible is morally permissible. A discretionary rule may let you buy a luxury car, but doing so might still not be morally acceptable at a given time. Morality, in a sense, is more fundamental than legal precepts.
There are two senses in which politicians need to act morally. They should behave morally in the same sense in which us ordinary mortals should: do not cheat, try to treat other people with due respect, etc. In addition, they need to act with a sense of political morality, which refers to ethical rules designed to guide the behaviour of those wielding public power. These rules derive from our collective desire to ensure that public space conduces to fair political dialogue and responsive government.
One rule is that public officials should not utter speech that can reasonably be construed as violent. Another is that they should not express speech that is intolerant of disagreement. Maphatsoe’s speech violates these rules. It both expresses and constitutes violent intolerance of Asmal’s right to engage in political discourse. That makes it politically immoral regardless of whether or not a legal case of intimidation or hate speech could be successfully argued in an equality court. The legal debate is a moral red herring.
Mantashe half-heartedly conceded that Asmal had a right to engage the ANC, but ended his speech with the perplexing and somewhat incoherent warning that “in taking on issues, self-destruction can bleed you to death”. To be fair, this is too vague to constitute a clear expression of violent intolerance, but it does have a sinister ring to it which, coupled with delivery in Mantashe’s trademark cough mixture-averse voice and tone, amounts to speech that is politically immoral quite apart from mundane questions of legality.
Meeko, too, uttered violent speech when he reportedly said of the new rector of the University of the Free State (UFS), Prof Jonathan Jansen, that he should be “shot and killed”. He denies this now, claiming to have said that “racism should be killed”. Both of these phrases are politically immoral. The first is a clear incitement to kill the new rector. The second constitutes violent grammar, which is particularly macabre in the context of a volatile race debate playing out at UFS. Meeko has no sense of political morality.
Sadly these examples are typical of political discourse in contemporary SA, and so cannot be wished away as exceptional. One source of this political immorality is the inheritance of a grammar of violence from the heyday of the liberation struggle. But in a liberal democracy we should develop, promote and cherish deliberative politics rather than violent intolerance. One starting point is to eliminate physical violence between political groups. We have largely done that. The next step is to substitute the grammar of violence with reasoned debate. This is desirable not just because political courtesy is nice but more importantly because violent grammar begets political violence.
These changes in political language require party leaders who understand the requirements of political morality and can show how to respectfully engage opponents inside and outside one’s political home. Only time will tell whether our political leaders are up to the challenge . The deepening of our teenage democracy requires them to be.
http://www.businessday.co.za/articles/Content.aspx?id=85493
Maphatsoe reportedly told former education minister Kader Asmal to “go to the nearest cemetery and die”. This was in response to Asmal’s very thorny criticism of the new government’s strategy for fighting crime. Opposition political parties are seizing the opportunity to put together a legal case against the military veterans, claiming that the speech amounts to hate speech. Legal pundits are joining the debate by whipping out sources of law and precedent that set out the test for hate speech.
This is not unimportant. If a law has been violated, then due punishment should be meted out. But a bigger issue might get lost in this legal fracas. It is the difference between law and political morality. Requirements of morality are often different to those of law. Not all that is morally desirable can or should be legally enforced. Not all that is legally permissible is morally permissible. A discretionary rule may let you buy a luxury car, but doing so might still not be morally acceptable at a given time. Morality, in a sense, is more fundamental than legal precepts.
There are two senses in which politicians need to act morally. They should behave morally in the same sense in which us ordinary mortals should: do not cheat, try to treat other people with due respect, etc. In addition, they need to act with a sense of political morality, which refers to ethical rules designed to guide the behaviour of those wielding public power. These rules derive from our collective desire to ensure that public space conduces to fair political dialogue and responsive government.
One rule is that public officials should not utter speech that can reasonably be construed as violent. Another is that they should not express speech that is intolerant of disagreement. Maphatsoe’s speech violates these rules. It both expresses and constitutes violent intolerance of Asmal’s right to engage in political discourse. That makes it politically immoral regardless of whether or not a legal case of intimidation or hate speech could be successfully argued in an equality court. The legal debate is a moral red herring.
Mantashe half-heartedly conceded that Asmal had a right to engage the ANC, but ended his speech with the perplexing and somewhat incoherent warning that “in taking on issues, self-destruction can bleed you to death”. To be fair, this is too vague to constitute a clear expression of violent intolerance, but it does have a sinister ring to it which, coupled with delivery in Mantashe’s trademark cough mixture-averse voice and tone, amounts to speech that is politically immoral quite apart from mundane questions of legality.
Meeko, too, uttered violent speech when he reportedly said of the new rector of the University of the Free State (UFS), Prof Jonathan Jansen, that he should be “shot and killed”. He denies this now, claiming to have said that “racism should be killed”. Both of these phrases are politically immoral. The first is a clear incitement to kill the new rector. The second constitutes violent grammar, which is particularly macabre in the context of a volatile race debate playing out at UFS. Meeko has no sense of political morality.
Sadly these examples are typical of political discourse in contemporary SA, and so cannot be wished away as exceptional. One source of this political immorality is the inheritance of a grammar of violence from the heyday of the liberation struggle. But in a liberal democracy we should develop, promote and cherish deliberative politics rather than violent intolerance. One starting point is to eliminate physical violence between political groups. We have largely done that. The next step is to substitute the grammar of violence with reasoned debate. This is desirable not just because political courtesy is nice but more importantly because violent grammar begets political violence.
These changes in political language require party leaders who understand the requirements of political morality and can show how to respectfully engage opponents inside and outside one’s political home. Only time will tell whether our political leaders are up to the challenge . The deepening of our teenage democracy requires them to be.
http://www.businessday.co.za/articles/Content.aspx?id=85493
Friday, October 23, 2009
Case for affirmative action not black and white
INTERGENERATIONAL justice is a weird concept. It is one I tried to explain to Wits University philosophy students in a lecture on affirmative action last week. This generated discussion that is worth rehearsing. One of the more serious objections to affirmative action is that it is unjust to expect young white South Africans to bear the brunt of the social and economic cost of affirmative action for a history that was beyond their control. In effect, young white South Africans are being made to pay for the moral sins of their parents.
This notion of intergenerational justice seems like no justice at all. Why should the Mandela generation pay for the actions of others? The expectation that they do is surely unjust. This objection is wholly compatible with recognising that black SA has a claim of justice against the perpetrators of apartheid. The problem is that a lot of those perpetrators are dead or dying. How is it morally acceptable to hold Hendrik Verwoerd’s grandchildren responsible? And if it is not fair to do so, then surely the moral foundation for policies such as affirmative action and black economic empowerment collapses?
The government does not understand this moral problem that lies at the heart of affirmative action. This is why it has often shown little empathy for young white South Africans, who are tempted to leave their country of birth. This objection is in fact deeply challenging and must be taken seriously. Merely taking it seriously will itself persuade many young white South Africans that there is not a blind, unreflective racialism driving demands for social justice.
It seems correct to say someone should be held morally and legally accountable only for that which is within their control. But if voluntary control is a necessary condition for the attribution of blame, then presumably no one could be blamed for activities that took place before they were born. It makes no sense to indict someone’s future self.
We can apply these ethical intuitions to the affirmative action debate. A 20-year-old white South African could not have prevented apartheid from coming about. Therefore any policy that demands sacrifices from innocent young white South Africans in order for victims of racism to enjoy compensatory justice is itself unjust.
This objection should not be dismissed lightly. Doing so would be intellectually dishonest and politically dangerous. One should acknowledge the coherence, cogency and emotional substance behind the intuitive sense of injustice that someone born in 1990 might be feeling. These feelings are heightened by the knowledge that your friend, Sipho, who has been at a private school with you, might get prioritised over you for a job “simply” because he is black, even though you appear to have indistinguishable life journeys behind you.
Yet, while compelling, this objection is ultimately answerable. The key to understanding social justice demands is to grasp the conceptual distinction between moral sins and moral burdens. No one should be forced to inherit the moral sins of others. That violates natural justice considerations.
However, we can inherit moral burdens. If, for example, I have benefited unjustly from the wealth acquired by my immoral, murderous and racist father, who exerted force over others in acquiring that wealth, then I inherit moral burdens stemming from this fact. The immoral origins of the wealth I have inherited set up the moral burden. This is wholly compatible with recognising that I myself am not morally or legally responsible for the unjust wealth acquisition.
Consider the somewhat remote but illustrative example of Saartjie Baartman’s remains. Would it have been morally acceptable for contemporary France to say: “We admit our forefathers did immoral things that resulted in Saartjie eventually dying and being buried here. We are blameless, though, and so have no moral burdens to repatriate her remains.” Surely not — history hands down moral duties unconnected to our immediate lives.
This is the nature of the moral foundation of affirmative action. The average young white South African still has a better shot at living a flourishing adult life than does her black counterpart as a direct result of unjust historical facts whose structural impact lingers. Even your friend Sipho, who seems to speak your language, faces challenges he does not share with you and which stem from our racist history, all of which you have the luxury to be blissfully unaware of. This genesis of contemporary inequalities gives us an overriding moral reason to implement policies aimed at redress. It also constitutes a moral reason why young white South Africans, though blameless, are fair targets of policies aimed at redress.
Whether these policies, such as affirmative action, work adequately in practice is a discussion for another day. What is clear, however, is that these kinds of policies do have a moral justification, albeit a complex one. It would help, of course, if the government was able to appreciate these complexities and show sensitivity by engaging young white South Africans in a caring and non-alienating manner on such potentially divisive topics.
http://www.businessday.co.za/articles/Content.aspx?id=84803
This notion of intergenerational justice seems like no justice at all. Why should the Mandela generation pay for the actions of others? The expectation that they do is surely unjust. This objection is wholly compatible with recognising that black SA has a claim of justice against the perpetrators of apartheid. The problem is that a lot of those perpetrators are dead or dying. How is it morally acceptable to hold Hendrik Verwoerd’s grandchildren responsible? And if it is not fair to do so, then surely the moral foundation for policies such as affirmative action and black economic empowerment collapses?
The government does not understand this moral problem that lies at the heart of affirmative action. This is why it has often shown little empathy for young white South Africans, who are tempted to leave their country of birth. This objection is in fact deeply challenging and must be taken seriously. Merely taking it seriously will itself persuade many young white South Africans that there is not a blind, unreflective racialism driving demands for social justice.
It seems correct to say someone should be held morally and legally accountable only for that which is within their control. But if voluntary control is a necessary condition for the attribution of blame, then presumably no one could be blamed for activities that took place before they were born. It makes no sense to indict someone’s future self.
We can apply these ethical intuitions to the affirmative action debate. A 20-year-old white South African could not have prevented apartheid from coming about. Therefore any policy that demands sacrifices from innocent young white South Africans in order for victims of racism to enjoy compensatory justice is itself unjust.
This objection should not be dismissed lightly. Doing so would be intellectually dishonest and politically dangerous. One should acknowledge the coherence, cogency and emotional substance behind the intuitive sense of injustice that someone born in 1990 might be feeling. These feelings are heightened by the knowledge that your friend, Sipho, who has been at a private school with you, might get prioritised over you for a job “simply” because he is black, even though you appear to have indistinguishable life journeys behind you.
Yet, while compelling, this objection is ultimately answerable. The key to understanding social justice demands is to grasp the conceptual distinction between moral sins and moral burdens. No one should be forced to inherit the moral sins of others. That violates natural justice considerations.
However, we can inherit moral burdens. If, for example, I have benefited unjustly from the wealth acquired by my immoral, murderous and racist father, who exerted force over others in acquiring that wealth, then I inherit moral burdens stemming from this fact. The immoral origins of the wealth I have inherited set up the moral burden. This is wholly compatible with recognising that I myself am not morally or legally responsible for the unjust wealth acquisition.
Consider the somewhat remote but illustrative example of Saartjie Baartman’s remains. Would it have been morally acceptable for contemporary France to say: “We admit our forefathers did immoral things that resulted in Saartjie eventually dying and being buried here. We are blameless, though, and so have no moral burdens to repatriate her remains.” Surely not — history hands down moral duties unconnected to our immediate lives.
This is the nature of the moral foundation of affirmative action. The average young white South African still has a better shot at living a flourishing adult life than does her black counterpart as a direct result of unjust historical facts whose structural impact lingers. Even your friend Sipho, who seems to speak your language, faces challenges he does not share with you and which stem from our racist history, all of which you have the luxury to be blissfully unaware of. This genesis of contemporary inequalities gives us an overriding moral reason to implement policies aimed at redress. It also constitutes a moral reason why young white South Africans, though blameless, are fair targets of policies aimed at redress.
Whether these policies, such as affirmative action, work adequately in practice is a discussion for another day. What is clear, however, is that these kinds of policies do have a moral justification, albeit a complex one. It would help, of course, if the government was able to appreciate these complexities and show sensitivity by engaging young white South Africans in a caring and non-alienating manner on such potentially divisive topics.
http://www.businessday.co.za/articles/Content.aspx?id=84803
Wednesday, October 21, 2009
Professor Jonathan Jansen: reconciliation by fiat?
And there I was thinking that Desmond Tutu and the Truth and Reconciliation Commission (TRC) are so last year! Until....along comes Professor Jonathan Jansen and tries - while Tutu is still VERY much alive and well - to (re)invent himself as something of a Tutu-incarnation within the education sphere. Honest motives for sure - he is one my favourite people in this challenging rainbow country of ours: super smart, sincere, and visionary. And yet, I cannot say for certain that his unilateral - unilateral being an important qualifier - decision to invite the four racist boys back onto University of the Free State (UFS) campus was necessarily his finest moment. Here are some of the things that trouble me about his decision.
First, if you do opt for a model of restorative justice as the preferred tool for engaging issues of racism and healing divisions between persons that came about because of racism, then certain preconditions need to be satisfied to justify letting go of more retributive forms of engagment.
For one thing, all parties need to buy into the process. Else you are not 'restoring' anything but rather paying lipservice to the 'restorative' bit in 'restorative justice', thereby making a mockery of reconciliation. This is EXACTLY the case in this instance. The Student Represenative Council (SRC) was not consulted, nor other student bodies, let alone the student body more widely. The victims of the racist actions were not asked for an opinion either. This is turning out to be a case of reconciliation by fiat. It was ill thought through procedurally which in turn robs the process of the possibility of being a catalyst for healing and reconciliation.
Another precondition, surely, is that one requires the offending parties to show remorse of some sort? This was the case with the TRC and the Amnesty process. Now obviously these more grand national processes are very different to the silly bits of naughty behaviour of 'mere' students and one should not melodramatically compare them for longer than a second or two. But hey, it is Jansen himself who draws on the reconciliation motif! So it is fair to ask if he is right to analogise, not least because that is the *rationale* for his decision.
And the answer is 'no'. Although many guilty folk did not show remorse during TRC hearings, nevertheless to the extent that the TRC process was a success, an ingredient of that success was the demonstration of remorse. These four racist boys have shown none.
Second, we should be careful to excuse the actions of individuals on the ground that that there are grand narratives that have structured those actions. Yes, that it is not untrue - to some extent. But we are not automatons who lack control over our actions. Quite simply, they deserved tougher censure rather than being allowed to be let off the hook courtesy of our history.
In the end, Professor Jansen has bought himself MASSIVE social capital from the Afrikaans community on campus - no doubt. That is important not least because he is their first black rector. But he might be miscalculating in not realising that black support in turn is not automatic and so he needs to be courting the black, university community as craftily as he is courting the the more traditional, white Afrikaans lot.
Yes, this is a complex and somewhat crass racial game. Such is the reality of the UFS - and our country. Prof Jansen has a great track record. We should all support him and wish him well.
Equally, it is important to point out that he has erred on this occassion, so that next time round he will opt for consultative processes, rather than imposing reconciliation - or other solutions - by fiat.
First, if you do opt for a model of restorative justice as the preferred tool for engaging issues of racism and healing divisions between persons that came about because of racism, then certain preconditions need to be satisfied to justify letting go of more retributive forms of engagment.
For one thing, all parties need to buy into the process. Else you are not 'restoring' anything but rather paying lipservice to the 'restorative' bit in 'restorative justice', thereby making a mockery of reconciliation. This is EXACTLY the case in this instance. The Student Represenative Council (SRC) was not consulted, nor other student bodies, let alone the student body more widely. The victims of the racist actions were not asked for an opinion either. This is turning out to be a case of reconciliation by fiat. It was ill thought through procedurally which in turn robs the process of the possibility of being a catalyst for healing and reconciliation.
Another precondition, surely, is that one requires the offending parties to show remorse of some sort? This was the case with the TRC and the Amnesty process. Now obviously these more grand national processes are very different to the silly bits of naughty behaviour of 'mere' students and one should not melodramatically compare them for longer than a second or two. But hey, it is Jansen himself who draws on the reconciliation motif! So it is fair to ask if he is right to analogise, not least because that is the *rationale* for his decision.
And the answer is 'no'. Although many guilty folk did not show remorse during TRC hearings, nevertheless to the extent that the TRC process was a success, an ingredient of that success was the demonstration of remorse. These four racist boys have shown none.
Second, we should be careful to excuse the actions of individuals on the ground that that there are grand narratives that have structured those actions. Yes, that it is not untrue - to some extent. But we are not automatons who lack control over our actions. Quite simply, they deserved tougher censure rather than being allowed to be let off the hook courtesy of our history.
In the end, Professor Jansen has bought himself MASSIVE social capital from the Afrikaans community on campus - no doubt. That is important not least because he is their first black rector. But he might be miscalculating in not realising that black support in turn is not automatic and so he needs to be courting the black, university community as craftily as he is courting the the more traditional, white Afrikaans lot.
Yes, this is a complex and somewhat crass racial game. Such is the reality of the UFS - and our country. Prof Jansen has a great track record. We should all support him and wish him well.
Equally, it is important to point out that he has erred on this occassion, so that next time round he will opt for consultative processes, rather than imposing reconciliation - or other solutions - by fiat.
Monday, October 19, 2009
The temptations of moral vegeteraniasm
I flippantly mentioned a couple of weeks ago that I had been tempted for a split-second to become a vegetarian but that I had never found the arguments for vegetarianism persuasive. Because I don't find them compelling, I need not feel like a moral failure - not that moral shortcoming is necessarily a reason to beat onself up; virtuous behaviour on a full-time basis strikes me as rather dull! Instead, I always felt pity for those missing out on bacon, burgers, braais and other meaty goodies. Yet, these damn veggie arguments are still simmering in my head. What to make of them? Let me set out just one of the arguments that still bother me. Please help me find a response before I go to Kate's braai this forthcoming Saturday...
To cut very crudely to the chase, if it is not ok to eat some sentient creatures, why are others more deserving of landing on my plate? This is of course old hat; it is an argument as stale as a piece of left over braaied meat itself. But truths can be stale - that's an aesthetic problem with them, not a logical one :)
The only response, it seems to me, is that there must be stuff about human beings, besides their capacity for pain/pleasure, that mark them out for special ethical consideration in my moral reasoning such that I can treat non-humans who lack these special traits, differently. But of course it is impossible to figure why the hack Samantha or Simpiwe - I made them up, people - are more special than the sheep outside. Special in a sense that justifies differential moral weight in my ethical reasoning?
Seems the answer must be 'no'. Unless, of course, we simply stipulate that morality is a human enterprise and non-humans by definition do not form part of the moral community. But that sort of ad hoc circularity leaves me cold.
On the other hand, we might try our luck by pretending that the key to why I do not eat humans is that humans have language, intelligence and other human-specific capacities ... well, uhm, not all of us do. So we still have not justified a general law that says, "be kinda nice to ALL other humans...and at the very least don't eat 'em."
How do I avoid the following dillemma? I must either become a vegetarian or in principle accept that humans do not have unique moral value ....indeed in principle I should be open to human burgers, not just beef or veggie ones.
Please tell me I'm simply engaging in bad moral philosophy or else I'd have to take veggie burgers to the braai on Saturday ....
Eish.
To cut very crudely to the chase, if it is not ok to eat some sentient creatures, why are others more deserving of landing on my plate? This is of course old hat; it is an argument as stale as a piece of left over braaied meat itself. But truths can be stale - that's an aesthetic problem with them, not a logical one :)
The only response, it seems to me, is that there must be stuff about human beings, besides their capacity for pain/pleasure, that mark them out for special ethical consideration in my moral reasoning such that I can treat non-humans who lack these special traits, differently. But of course it is impossible to figure why the hack Samantha or Simpiwe - I made them up, people - are more special than the sheep outside. Special in a sense that justifies differential moral weight in my ethical reasoning?
Seems the answer must be 'no'. Unless, of course, we simply stipulate that morality is a human enterprise and non-humans by definition do not form part of the moral community. But that sort of ad hoc circularity leaves me cold.
On the other hand, we might try our luck by pretending that the key to why I do not eat humans is that humans have language, intelligence and other human-specific capacities ... well, uhm, not all of us do. So we still have not justified a general law that says, "be kinda nice to ALL other humans...and at the very least don't eat 'em."
How do I avoid the following dillemma? I must either become a vegetarian or in principle accept that humans do not have unique moral value ....indeed in principle I should be open to human burgers, not just beef or veggie ones.
Please tell me I'm simply engaging in bad moral philosophy or else I'd have to take veggie burgers to the braai on Saturday ....
Eish.
Friday, October 16, 2009
True confessions of a cultural schizophrenic
ON A hauntingly beautiful track, Telling Stories, Tracy Chapman laments the science fiction that sometimes exists in the space between her and everybody else. She often fills this space with fictional narratives in which she is able to escape in a space ship. Sometimes, she melancholically concludes, a lie is the best thing. These lyrics have been on my mind lately as I plod along with a book manuscript of mine. In this book, too personal to fully live outside my headspace , I share some of my deepest, scariest confessions as a cultural schizophrenic.
Black kids who were born during the dying days of apartheid and hit puberty after Nelson Mandela’s release from jail have undergone identity journeys that, like Tracy Chapman’s existential thoughts, need to be shared with the world.
Instead, we bottle them up or restrict their discussion to cappuccino-aided trips down memory lane about school life at multicultural (read: multiracial) schools. This failure to record and grapple with our inner thoughts could result in strands of democratic SA’s social history being lost. We should not let dry academic theses and journal articles about integrated schooling be the sum total of our recorded memories. Lived experiences need to be captured in richer, rougher detail in other forms, such as works of fiction. A sprinkling of works do so, but these barely scratch the surface.
Here is why all this matters.
Some black teenagers and young adults are cultural schizophrenics. This is neither bad nor good. It is just an experiential fact about us. It is a fact to be understood and mulled over. By cultural schizophrenia I mean that we often “code switch”, as the Americans say, between township language and the language of formerly whites-only institutions into which we have been inducted as honorary members. “Language” refers broadly to the values, principles, culture and norms (linguistic ones included) of an institution or a social space.
When I wear my non-township hat, I speak English, speak corporate (or did, before moving into the political and media space), sip exotic wines, travel the world, espouse deeply liberal, individual world views, and am an agnostic who lives in a secure complex in northern Johannesburg in which my neighbours remain strangers some two years after I moved in. This is middle class escapism at its best and worst.
My township self, who only comes out during holidays spent at home in the Eastern Cape, or strained conversations with family members still stuck in the geography that now forms the landscape of my childhood memoirs, speaks Afrikaans, has a fading commitment to Catholicism, is thoroughly working class, knows all his neighbours very well, has a spirit of communalism that is stronger than the selfishness of his coconut alter ego, and has never heard of JM Coetzee nor travelled outside the Eastern Cape.
This cultural schizophrenia is, of course, just a part of the human condition. Multiple selves are present in all people. No doubt psychologists can chip in with academic footnotes that challenge the sense of uniqueness of what I am describing here by demonstrating it to be a general human trait.
But there are at least two important reasons why this South African instance of cultural schizophrenia should interest us. One reason is simply sociological. The novel that has best rehearsed the inner lives of these postdemocratic identities is K Sello Duiker’s The Quiet Violence of Dreams.
Often black families imagine their worldly sons and daughters in the corporate space live glamorous, stress-free lives . This is partly true. Often, however, the cost of multicultural education, and opportunities for personal and professional growth, is dissonance. You straddle two worlds. Only the most unaware coconut would not have a personal moment of quiet reflection when the fiction between herself and her aunties and uncles back in the township jars a cocktail-sipping night out in Sandton. Exploring and recording these narratives is therefore important. They are a source of cultural history.
Second, we will never understand, let alone dismantle, structural inequalities in social and economic spaces if we do not understand the idea of institutional language. Many young black graduates struggle in the corporate space because they are not fluent in the institutional language of the old boys who had decades to stamp their values, principles and language on those spaces before the arrival of democracy. Cultural schizophrenics — invariably black people who went to former Model C schools or private ones — negotiate these spaces better than equally qualified black people who only have a township self.
Cultural schizophrenia has become an economic imperative for blacks. Personal identity politics clearly have a more intimate connection with public space and the private sectors. We cannot afford to lack self-awareness about these social complexities.
http://www.businessday.co.za/articles/Content.aspx?id=84178
Black kids who were born during the dying days of apartheid and hit puberty after Nelson Mandela’s release from jail have undergone identity journeys that, like Tracy Chapman’s existential thoughts, need to be shared with the world.
Instead, we bottle them up or restrict their discussion to cappuccino-aided trips down memory lane about school life at multicultural (read: multiracial) schools. This failure to record and grapple with our inner thoughts could result in strands of democratic SA’s social history being lost. We should not let dry academic theses and journal articles about integrated schooling be the sum total of our recorded memories. Lived experiences need to be captured in richer, rougher detail in other forms, such as works of fiction. A sprinkling of works do so, but these barely scratch the surface.
Here is why all this matters.
Some black teenagers and young adults are cultural schizophrenics. This is neither bad nor good. It is just an experiential fact about us. It is a fact to be understood and mulled over. By cultural schizophrenia I mean that we often “code switch”, as the Americans say, between township language and the language of formerly whites-only institutions into which we have been inducted as honorary members. “Language” refers broadly to the values, principles, culture and norms (linguistic ones included) of an institution or a social space.
When I wear my non-township hat, I speak English, speak corporate (or did, before moving into the political and media space), sip exotic wines, travel the world, espouse deeply liberal, individual world views, and am an agnostic who lives in a secure complex in northern Johannesburg in which my neighbours remain strangers some two years after I moved in. This is middle class escapism at its best and worst.
My township self, who only comes out during holidays spent at home in the Eastern Cape, or strained conversations with family members still stuck in the geography that now forms the landscape of my childhood memoirs, speaks Afrikaans, has a fading commitment to Catholicism, is thoroughly working class, knows all his neighbours very well, has a spirit of communalism that is stronger than the selfishness of his coconut alter ego, and has never heard of JM Coetzee nor travelled outside the Eastern Cape.
This cultural schizophrenia is, of course, just a part of the human condition. Multiple selves are present in all people. No doubt psychologists can chip in with academic footnotes that challenge the sense of uniqueness of what I am describing here by demonstrating it to be a general human trait.
But there are at least two important reasons why this South African instance of cultural schizophrenia should interest us. One reason is simply sociological. The novel that has best rehearsed the inner lives of these postdemocratic identities is K Sello Duiker’s The Quiet Violence of Dreams.
Often black families imagine their worldly sons and daughters in the corporate space live glamorous, stress-free lives . This is partly true. Often, however, the cost of multicultural education, and opportunities for personal and professional growth, is dissonance. You straddle two worlds. Only the most unaware coconut would not have a personal moment of quiet reflection when the fiction between herself and her aunties and uncles back in the township jars a cocktail-sipping night out in Sandton. Exploring and recording these narratives is therefore important. They are a source of cultural history.
Second, we will never understand, let alone dismantle, structural inequalities in social and economic spaces if we do not understand the idea of institutional language. Many young black graduates struggle in the corporate space because they are not fluent in the institutional language of the old boys who had decades to stamp their values, principles and language on those spaces before the arrival of democracy. Cultural schizophrenics — invariably black people who went to former Model C schools or private ones — negotiate these spaces better than equally qualified black people who only have a township self.
Cultural schizophrenia has become an economic imperative for blacks. Personal identity politics clearly have a more intimate connection with public space and the private sectors. We cannot afford to lack self-awareness about these social complexities.
http://www.businessday.co.za/articles/Content.aspx?id=84178
Tuesday, October 13, 2009
Court strikes right balance on water for poor people
THE Constitutional Court surprised many of us last Thursday. In the prepaid water case brought by residents of Phiri in Soweto, the court ruled unanimously that providing prepaid water meters and only 6kl of free water a household a month is constitutionally acceptable. The applicants wanted installation of the prepaid water meters declared unconstitutional, or for residents to at least be given a choice between these and contract meters. They also hoped that the municipality would be required to provide 50l of free water a person on the premise that it is necessary for a dignified life. Instead, Judge Kate O’Regan hit each of the applicants’ arguments out of the constitutional park for spectacular legal sixes.
In examining the right of access to sufficient water, the court relied on its own analysis in the Treatment Action Campaign (TAC) and Grootboom cases. In these cases, it held there was a positive burden on the state to take reasonable steps towards the progressive realisation of socioeconomic rights within the available resources. This does not imply that there is a quantifiable, “minimum core” of specific goods that can be enforced by the court. The role of the court is to test the reasonableness of state policies.
This requires a delicate balancing act. The court should not dictate the content of socioeconomic policies. That is the government’s prerogative, and it is desirable because the government has a popular mandate for policy creation, while the courts do not.
Further, the complexities of budget decisions and policy research and review processes are beyond the court’s institutional capacity, but this does not mean that the government has free rein on policy. The court helps to ensure government accountability by allowing citizens to come before it to test state policies against the reasonableness standards mandated by the constitution and developed in constitutional case history.
On the basis of this self-definition of its relationship with other branches of government, the court held in the Phiri case that the right of access to sufficient water needed to be analysed similarly to socioeconomic rights cases such as TAC and Grootboom. It then becomes a question of whether the municipality formulated policies that demonstrably aimed to realise the rights of all residents to access sufficient water progressively.
On the facts before the court, O’Regan’s logic is unanswerable, and would look anti- poor only to someone who failed to read and consider carefully the cogent rationale that it set out.
First, the installation of the prepaid water meters is not unlawful, but coheres with both the bill of rights and municipal by-laws that emanate from the Water Services Act.
Second, the nonpayment culture under apartheid was a morally acceptable form of resistance. Now, however, we need to instil a culture of payment by all to ensure our democratic state is sustainable, while developing interventions to cushion the most vulnerable who cannot easily meet the municipality’s fee structures. The municipality had, in fact, evolved a set of policies in a commendable attempt to do just that.
This is why, for example, means testing was introduced to allow the indigent to get an additional 4kl of free water a month. Such an indigent household, with low additional usage beyond the free supply of water, generally ends up paying less for water and sanitation a month than what it costs the municipality to provide water to these households.
Wealthier citizens also cross-subsidise the poor because the tariff structure for water usage in areas with greater consumption is more onerous than those in poorer areas. So, for example, someone with a prepaid meter using 20kl of water pays R95,80 a month, compared with someone using the same quantity of water on a credit-meter system paying R131,25 a month.
In essence, then, the City of Johannesburg has been a model of how a government agency should continuously research, test, revise and improve its policies. It has struck a balance between its legitimate requirements that all citizens must pay for essential services, while being sensitive to the welfare needs of the most vulnerable by designing a complex service delivery and payment structure that still favours the poor.
If the Constitutional Court demanded blindly that the municipality simply provide more free water to Phiri residences, it would have improperly exerted control over complex budgetary decisions and policy processes that had been shown, at any rate, to be developing progressively.
What, then, are the implications of this case? First, it demonstrates the importance of the Constitutional Court not overreaching its powers. It does not have the institutional capacity or mandate to insert itself gratuitously into policy debates and simply stipulate substantive policy content.
Instead, it needs to hold the government thoroughly accountable by employing the “reasonableness” test. This is a powerful test, so it should not be misconstrued as lacking teeth. The TAC and Grootboom cases showed otherwise.
Second, the court needs to acknowledge reasonable state policy effort where it is demonstrated. In this case, it is appropriate for the City of Johannesburg to be praised.
Third, the case demonstrates the need for social justice litigation to be undertaken more strategically by nongovernmental organisations. This was perhaps not the best first water rights case to go all the way to the Constitutional Court. The municipality made a reasonable effort to provide water access. A clearer case, such as a situation in which citizens did not have access to communal taps within 200m of their living space, for example, would have had a better chance of landing a win.
Human rights lawyers and their nongovernmental institutional friends need to think more carefully about their selection of cases, the timing of judicial activism and the nature and scope of the relief sought.
Fourth, while the constitutional enforcement of socioeconomic rights is an important tool for achieving social justice, other tactics such as political lobbying are underused.
This is not to suggest that we are becoming too litigious as a society, but rather that civil society organisations need to have a more expansive tool kit for achieving their noble goals.
Most importantly, this case begins to settle a question that was raised in the TAC and Grootboom cases. Should we accept a “minimum core” interpretation of socioeconomic rights, or should we accept a “reasonableness test”? The former entails quantifying the content of socioeconomic rights, such as a specified measure of water each of us must get from the government. The court rightly rejected this approach as impossibly complex, favouring instead the reasonableness test. This test allows the court to test policies for the extent to which they progressively realise minimum socioeconomic wellbeing. This is the sensible way forward.
“Minimum core” stipulations can also harm citizens. Fixing the content of socioeconomic rights does not take sufficient account of changes in context.
Ultimately, O’Regan situated the court comfortably between the rock of passively deferring to government policy processes on the one hand and the hard place of subverting the government’s right to make policy on the other. The Constitutional Court’s pro-poor credentials remain intact.
http://www.businessday.co.za/articles/Content.aspx?id=83847
In examining the right of access to sufficient water, the court relied on its own analysis in the Treatment Action Campaign (TAC) and Grootboom cases. In these cases, it held there was a positive burden on the state to take reasonable steps towards the progressive realisation of socioeconomic rights within the available resources. This does not imply that there is a quantifiable, “minimum core” of specific goods that can be enforced by the court. The role of the court is to test the reasonableness of state policies.
This requires a delicate balancing act. The court should not dictate the content of socioeconomic policies. That is the government’s prerogative, and it is desirable because the government has a popular mandate for policy creation, while the courts do not.
Further, the complexities of budget decisions and policy research and review processes are beyond the court’s institutional capacity, but this does not mean that the government has free rein on policy. The court helps to ensure government accountability by allowing citizens to come before it to test state policies against the reasonableness standards mandated by the constitution and developed in constitutional case history.
On the basis of this self-definition of its relationship with other branches of government, the court held in the Phiri case that the right of access to sufficient water needed to be analysed similarly to socioeconomic rights cases such as TAC and Grootboom. It then becomes a question of whether the municipality formulated policies that demonstrably aimed to realise the rights of all residents to access sufficient water progressively.
On the facts before the court, O’Regan’s logic is unanswerable, and would look anti- poor only to someone who failed to read and consider carefully the cogent rationale that it set out.
First, the installation of the prepaid water meters is not unlawful, but coheres with both the bill of rights and municipal by-laws that emanate from the Water Services Act.
Second, the nonpayment culture under apartheid was a morally acceptable form of resistance. Now, however, we need to instil a culture of payment by all to ensure our democratic state is sustainable, while developing interventions to cushion the most vulnerable who cannot easily meet the municipality’s fee structures. The municipality had, in fact, evolved a set of policies in a commendable attempt to do just that.
This is why, for example, means testing was introduced to allow the indigent to get an additional 4kl of free water a month. Such an indigent household, with low additional usage beyond the free supply of water, generally ends up paying less for water and sanitation a month than what it costs the municipality to provide water to these households.
Wealthier citizens also cross-subsidise the poor because the tariff structure for water usage in areas with greater consumption is more onerous than those in poorer areas. So, for example, someone with a prepaid meter using 20kl of water pays R95,80 a month, compared with someone using the same quantity of water on a credit-meter system paying R131,25 a month.
In essence, then, the City of Johannesburg has been a model of how a government agency should continuously research, test, revise and improve its policies. It has struck a balance between its legitimate requirements that all citizens must pay for essential services, while being sensitive to the welfare needs of the most vulnerable by designing a complex service delivery and payment structure that still favours the poor.
If the Constitutional Court demanded blindly that the municipality simply provide more free water to Phiri residences, it would have improperly exerted control over complex budgetary decisions and policy processes that had been shown, at any rate, to be developing progressively.
What, then, are the implications of this case? First, it demonstrates the importance of the Constitutional Court not overreaching its powers. It does not have the institutional capacity or mandate to insert itself gratuitously into policy debates and simply stipulate substantive policy content.
Instead, it needs to hold the government thoroughly accountable by employing the “reasonableness” test. This is a powerful test, so it should not be misconstrued as lacking teeth. The TAC and Grootboom cases showed otherwise.
Second, the court needs to acknowledge reasonable state policy effort where it is demonstrated. In this case, it is appropriate for the City of Johannesburg to be praised.
Third, the case demonstrates the need for social justice litigation to be undertaken more strategically by nongovernmental organisations. This was perhaps not the best first water rights case to go all the way to the Constitutional Court. The municipality made a reasonable effort to provide water access. A clearer case, such as a situation in which citizens did not have access to communal taps within 200m of their living space, for example, would have had a better chance of landing a win.
Human rights lawyers and their nongovernmental institutional friends need to think more carefully about their selection of cases, the timing of judicial activism and the nature and scope of the relief sought.
Fourth, while the constitutional enforcement of socioeconomic rights is an important tool for achieving social justice, other tactics such as political lobbying are underused.
This is not to suggest that we are becoming too litigious as a society, but rather that civil society organisations need to have a more expansive tool kit for achieving their noble goals.
Most importantly, this case begins to settle a question that was raised in the TAC and Grootboom cases. Should we accept a “minimum core” interpretation of socioeconomic rights, or should we accept a “reasonableness test”? The former entails quantifying the content of socioeconomic rights, such as a specified measure of water each of us must get from the government. The court rightly rejected this approach as impossibly complex, favouring instead the reasonableness test. This test allows the court to test policies for the extent to which they progressively realise minimum socioeconomic wellbeing. This is the sensible way forward.
“Minimum core” stipulations can also harm citizens. Fixing the content of socioeconomic rights does not take sufficient account of changes in context.
Ultimately, O’Regan situated the court comfortably between the rock of passively deferring to government policy processes on the one hand and the hard place of subverting the government’s right to make policy on the other. The Constitutional Court’s pro-poor credentials remain intact.
http://www.businessday.co.za/articles/Content.aspx?id=83847
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