IVR BRAZIL 2013 - PART 2. - The 'Inefficacy' Of Human Rights Universalism And The Relativism Of Cultural Norms.

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 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. For an African conception of 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 general way the very foundations of private property. In fact still in many countries today the records of the land registry are in way of construction and many 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 that the awareness of the person comes initially and foremost as a "We" and not 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 beings 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 differences, among others, between African cultures and European -Western cultures.

Western culture is based on what political theorists 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 as the central 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 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 conception 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.

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.[3]

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)[4]:

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 n 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 ofproperty 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]."[5]

In Italy the Constitution states that the right to property has a social, political destination.

Source : Costituzione, Articolo 42, Comma 3.

"La proprietàprivata puòessere, neicasi prevedutidalla legge,e salvoindennizzo, espropriata per motividi interessegenerale”.

For an extensive complete 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.[6] Also very important for the alternatives for a equitable, fair and more just society, is the pioneering studies by Prof. Stefano Rodotà and Ugo Mattei on the Commons. [7]

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 property assets, and the concept ofobligation as inherently related to the property.

The origins of 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[8].

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 positive law (right) whereas Law rather corresponds to not 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 today's contemporary law 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 regard the most eminent expert of the analysis of the "pathologies" of modern democracy.[9]

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. [10] 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.[11]

I will now pass to a quick analysis of what might be the consequences of this state of affairs and the absence of property for an African conception of the State and 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 to replace it with individualism, the basic requirements of modern capitalism, enhancing all modes of plagiarism of Western "modern" models.

Western human rights, rule of law, model of democracy, are peculiar features of the Western conception of Law and State. With globalization the particulars of this specific culture are being universalized worldwide, the intent being that of to unifying and harmonizing under Western law all cultures. If many are the favorable 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 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 nomativity and the nature of obligation. But 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.[12] One concept, amongst others, with which appropriately one could start would be that of the "person". In African philosophy for instance, ubuntuis 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"[13], 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 any 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).[14]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, as 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.

[3] 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.

[4] 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."

[5](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."

[6] Stefano Rodotà. Il terribile diritto. Studi sulla proprietà privata e i beni comuni. Il Mulino, 2013.

[7] Ugo Mattei. Beni comuni. Un manifesto. Laterza, 2012.

[8] They will be discussed in a further coming paper.

[9] Pierre Rosanvallon. Les pathologies de la démocratie: http://www.youtube.com/watch?v=qBr1_y6wf6E.

[10] Pierre Rosanvallon. Le désenchantement démocratique: http://www.youtube.com/watch?v=a9qmfqNXCP0&feature=youtu.be

[11] This also will be developed in a further paper, being this paper just a broad outline of the general picture.

[12] 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.

[13] Roberto Esposito. Video: "Persona": http://www.youtube.com/watch?v=4apOyV62jps&feature=youtu.be

[14] Eltheus/Africa free Your Mind : 3 November 2013 and following.