Writer: Mogobe Ramose
Photograph: Makgotso Nkosi
In his De Legibus, book III, part III, sub. VIII Cicero wrote that “saluspopulisupremalexesto”. The various translations of this maxim do not deviate from the basic insight that the health of the people shall be the supreme law. It is significant that Cicero makes this jussive declaration under the important title, “On laws”. Whatever laws there may be in a given human community, they ought to recognise, respect, protect and promote the foundation upon which they are built, namely, the health or well-being of all the individuals constituting the community.On this reasoning, the jussive character of Cicero’s maxim is pre-eminently ethical since it places human well-being prior to and above any law. Accordingly, for Cicero ethics precedes politics. Ethics charges politics with the responsibility to make laws that are at all times consistent and compliant with the recognition, respect, protection and promotion of the health of all the individuals constituting the political community.
According to Wikipedia, (accessed 11/12/2016) social contract theorists of the state or commonwealth such as Thomas Hobbes and John Locke accepted Cicero’s maxim. The former endorsed the maxim “at the beginning of Chapter 30 of Leviathan”. The latter considers the maxim to be “a fundamental rule for government”. Here it is crucial to observe that government is always in the service of the community or the state and in that capacity it is obliged to abide by the Ciceronian maxim.
(Baruch) Benedict de Spinoza takes christianity as his point of departure in his “A theologico-political treatise” on politics. This commits him to the logic that “the sovereign” as the “instrument of God” has sole power to determine the public good in the name of “justice and charity”. It is not our purpose here to engage in a thoroughgoing critique of Spinoza’s argument. The purpose here is limited to showing that he also endorses Cicero’s maxim. According to Spinoza, “the public welfare is the sovereign law to which all others, Divine and human, should be made to conform”. (Spinoza,1951: 249) He emphasises and refines this point with the argument that “For as by God’s command we are bound to do our duty to all men without exception, and to do no man an injury, we are also bound not to help one man at another’s loss, still less at a loss to the whole state”. (Spinoza, 1951: 250)
Taking their cue from Cicero, Hobbes, (1588) Locke, (1632) and Spinoza (1634) may be considered to be the precursors of Pope Leo XIII’s Rerum Novarum: “The condition of labour” published in 1891. Paragraph 10 of this document rests on the thesis that ethics precedes politics. It also underlines the vital importance of Spinoza’s emphasis and refinement cited in the above paragraph. It underlines the ethical necessity to recognise, respect, protect and promote “… equal rights” and, continues thus: “for since the domestic household is anterior both in idea and in fact to the gathering of men into a commonwealth, the former must necessarily have rights and duties which are prior to those of the latter, and which rest more immediately on nature. If the citizens of a State-that is to say, families-on entering into association and fellowship, experienced at the hands of the State hindrance instead of help, and found their rights attacked instead of being protected, such associations were rather to be repudiated than sought after”.
Unlike Spinoza, Rerum Novarum takes the thesis that ethics precedes politics seriously and concedes its logical conclusion that “the State” would rather dissolve instead of having the injured citizens being ruled by the fear of “a loss of the whole state”. In this regard, Rerum Novarum concurs with Hobbes’ Leviathan; a mortal god by definition. “This is more than consent, or concord; it is a real unity of them all, in one and the same person, made by covenant of every man with every man, in such manner, as if every man should say to every man, I authorize and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner. This done, the multitude so united in one person, is called a COMMONWEALTH, in Latin CIVITAS. This is the generation of the great LEVIATHAN, or rather, to speak more reverently, of that mortal god, to which we owe under the immortal God, our peace and defence”. (Hobbes, 1972: 176 Emphasis in the original) It follows then that the existence of “the State” is neither original nor eternal. Its continued existence is conditional upon government affirming its reason for existence by upholding in both theory and practice the Ciceronian ethical maxim that saluspopulisupremalexesto.
In the light of the foregoing, any form of government including democracy, is predicated upon the conditional suspension of resort to violence in order to ensure individual survival. On this reasoning, the threat of resort to violence is the basis of the constitution of any state. In a democracy, citizens may either decide to dissolve the state or resort to the use of violence without the actual disbandment of the state. In the latter case, the action of the citizens may aptly be described as democratic violence. Let me turn to elaborate on this.
The citizens who enter into the social contract are always embodied beings, beings that have a body. The body is the empirical manifestation of ex-istence and it is at the same time the human mode of being-in-the-world. No human being is known to have been present at the decision to be thrown into the world. The ex-istence of the human being is contingent. This contingency applies to all human beings as well as to planet Earth and all that there is in it. Contingency then confers upon each and every human being the right to exist and this right goes together with the right to reason. (Gutierrez, 1983:101) Placing in parenthesis the philosophical problem of what it means to “own my body”, (Zaner, 1971: 21-25) the one and only “property” that the human being owns is her or his own body. The Ciceronian maxim of saluspopulisupremalexesto applies directly and immediately to this body; the embodied human being. It means that by virtue of its right to ex-ist and to reason, the human being is entitled to unhindered access and use of all the resources in nature to preserve and continue its existence. This entitlement speaks to the right to life, liberty and limb. The last mentioned is also known as the right to physical integrity. This three in one right may not be violated at the level of relations between human beings themselves and between human beings and government acting in the name of the state.
In practice, however, the three in one right is violated in many ways. Here I focus on the violation of the right to physical integrity. An example of the violation of this right is the theoretical recognition of the right to food (Jonsson, 1984: 24) but the practical denial and frustration of this right first by an economic system which sanctions the throwing away of food in order to maintain food prices in the market. The same economic system does not always make provision for compulsory and free medical insurance for all the citizens. Furthermore, the same economic system needs unemployment as a structural and systemic necessity for its own survival in the name of profit. The effect is mass preventable poverty and hunger resulting in multiple and different diseases. This historical, structural, systemic and systematic construction of mass preventable poverty and hunger constitutes “inequality that spawns violence”. (Pope Francis, 2013: paragraph 59) This is the lived experience of citizens in capitalist democracy: a democracy that permits the few, being the wealthy and the rich, to go against Spinoza’s prohibition that “we are also bound not to help one man at another’s loss”.
The victims of the violation of the right to physical integrity as exemplified above do not disband the state to affirm their rejection of government acting in breach of the social contract. Instead, they remain within the state but respond with violence to the inequality that spawns it. It is the case, to use the language of Thomas Aquinas, of vis vim repellere; force repelling force. This maybe described as resort to “democratic violence”.
The claim to private ownership of land is also related to the violation of the right to food. Human beings are denied the right to land, the source of life, by another’s claim that the land to be accessed and used is “private property”. Yet, “private property does not constitute for anyone an absolute and unconditioned right. No one is justified in keeping for his exclusive use what he does not need, when others lack necessities. If certain landed estates impede the general prosperity because they are extensive, unused, or poorly used, or because they bring hardship to peoples or are detrimental to the interests of the country, the common good sometimes demands their expropriation”. (Pope Paul VI, 1967: paragraphs. 23 and 24) This means that “…private property does not constitute for anyone an absolute and unconditioned right…. Christian tradition has never upheld this right as absolute and untouchable. On the contrary, it has always understood this right within the broader context of the right common to all to use the goods of the whole creation: The right to private property is subordinated to the right to common use, to the fact that goods are meant for everyone…. From this point of view the position of
rigid’ capitalism continues to remain unacceptable, namely the position that defends the exclusive right to private ownership of the means of production as an untouchabledogma’ of economic life.” (Pope Paul VI, 1967: paragraph. 34)
The law that construes the right to private property as absolute and elevates it above the inviolable right of “the right common to all to use the goods of the whole of creation” is in breach of the Ciceronian maxim of saluspopulisupremalexesto. Such a law is ethically unsustainable and politically questionable. It may not be permitted to hinder the right of human beings to an about fitting to the dignity of the human person. But the matyotyombe or baipei reality in South Africa or the favelas in Brazil is indubitable evidence that this right is continually violated. It is against this background that the Catholic Bishops of Brazil declared that: “The right to make use of urban land to guarantee adequate housing is one of the primary conditions for creating a life that is authentically human. Therefore when land occupations – or invasions – occur, legal judgments on property titles must begin with the right of all to adequate housing. All claims to private ownership must take second place to this basic need. Bearing in mind the teaching of Pope John Paul II, that all private property carries with it a social responsibility, we conclude that the natural right to housing has priority over the law that governs land appropriation. A legal title to property can hardly be an absolute value in the face of the human need of people who have nowhere to make their home”. (May, 1991: 122) Accordingly, “the poor of land” may neither be silenced nor tortured when they demand the recognition, respect, protection and promotion of their right to physical integrity. Yet, evidence on the ground often points otherwise.
Silencing “the poor of the land” is an act of epistemic violence. Since the means of achieving this often involves psychological and physical torture such as physical assault or deprivation such as deliberate underfeeding and malnourishment, epistemic violence may illicitly be construed as physical violence. The revolt of the victims against this violence is “democratic violence” as already defined above. In this respect, my understanding of this concept is wider and deeper that than of Honderich who seems to limit it to “only [in] the coercion of persuasion”. (Honderich, 1980: 169) The hallmark of democratic violence is the ethical demand for equality of condition, that is, substantive as opposed to formal equality. It is therefore crucial to keep in mind that “Violence may give to individuals who engage in it a greater degree of influence than is enjoyed by some of the majority of individuals who do not engage in it. … Of the individuals who do not engage in violence,…, there are some who enjoy very great inequalities of influence. That is, wealth, and position give to some considerable number of individuals a far greater influence than is had by almost all of those individuals who are without wealth or position. Let us compare, then, the group of the violent and the group of the privileged. It is plain enough that the violent may be seen as attempting to secure an equal influence … For the most part, they do not succeed”. (Honderich, 1980: 169)
THE “FEES MUST FALL” MOVEMENT IN SOUTH AFRICA
The foregoing argumentation applies to the “fees must fall” movement in South Africa. It is not the intention here to sketch a history of the “fees must fall” movement in South Africa. Suffice it to state that the demand of the movement is that higher education in South Africa must be offered free, that is, without fees. Those affected, especially the students, have actively disrupted lectures and even went to the extent of putting some university property on fire. On the reasoning advanced above, that was resort to “democratic violence”. There have been and, continue to be numerous and variedresponses to this. In general, I should like to preface my response with the caveat that: “The ideology of socialist revolution may have few takers but one should not imagine that the world’s poor will remain cowed or passively accept their poverty … A world of wealth and poverty, with appalling and widening differences in living standards between the richest and the poorest nations is unlikely to be secure or stable.” (Hirst and Thompson, 1996: 182)
What I should like to focus on is the almost spontaneous and widely held response that the students’ demand is sound but does not justify resort to violence; violence that includes damage to “property”. While this response is legitimate, it is ethically problematical. The problem is that it ignores the violence to the only property that the students have, namely, their body and focuses on “property” that may not take precedence over the students’ right to physical integrity. To disregard the violation of the students’ right to physical integrity is to undermine the ethical order of priority. It is contrary to ubuntu ethics which upholds the maxim: feta kgomo o tshwaremotho: a maxim which in terms of insight bears the same meaning as the Ciceronian maxim of saluspopulisupremalex.
Gutierrez, G., (1983) The power of the poor in history, (trans.) Barr, R. R., Orbis Books, Maryknoll, New York
Hirst and Thompson, (1996)
Honderich, T., (1980) Violence for equality Inquiries in political philosophy, Penguin Books Ltd., Harmondsworth
Jonsson, (1984) The socio-economic causes of hunger, in Eide, A., Eide, W. B., Goonatilake, S., Gussow, J. E and Omawale, (ed.) Food as a human right, United Nations University, Tokyo
May, R., (1991) The poor f the land, Orbis Books, Maryknoll, New York
Pope Paul VI, (1967) Populorum Progressio, Vatican Press, Rome
Pope Francis, (2013) Evangelii Gaudium, Vatican Press, Rome
Zaner, R. (1971) The problem of embodiment, MartinusNijhoff, The Hague
Hobbes, T., 1972. Leviathan, Plamenatz, J., (ed.), William Collins Sons & Co. Ltd.: London
Pope Leo XIII, (1891) Rerum Novarum: The condition of labour, Vatican Press: Rome
Spinoza, B., (1951) Atheologico-political treatise and a political treatise, Elwes, R. H. M., (trans.), Dover Publications, Inc.: New York
We have used the small letter c in the writing of the term “christian”. This is in order to underline our concurrence with Wale Soyinka that: “The convention that capitalizes this and other so-called world religions is justified only when the same principle is applied to other religions, among them, the Orisa.” (Soyinka, 1999: 32)