Introduction
Jurisprudence often explores the fundamental question of what constitutes law and from where it derives its authority. While legal positivism asserts that law is simply what has been posited or enacted by a recognised authority, other traditions find the source of law in a higher moral order. This essay will examine three such traditions: the ancient Egyptian concept of Ma'at, the Western tradition of natural law, and the Southern African philosophy of Ubuntu. It will be argued that while all three concepts provide a non-positivist foundation for law and justice, they differ significantly in their conceptual origins and focus. Ma'at is rooted in a cosmic order, classical natural law is based on universal reason, and Ubuntu is grounded in communal harmony. By exploring these concepts, we can gain a broader appreciation of the diverse ways in which law and morality can be interconnected.
Ma'at: Cosmic Order and Divine Justice
The concept of Ma'at was central to the religious, ethical, and legal life of ancient Egypt for over three millennia. It was not merely a legal doctrine but a comprehensive worldview personified by the goddess Ma'at, who represented truth, justice, balance, and cosmic order (Karenga, 2004). This order was believed to have been established by the creator-god at the beginning of time, and the primary duty of the pharaoh, and indeed every individual, was to live in accordance with Ma'at to prevent the world from descending into chaos (isfet). Law, therefore, was not seen as an invention of human will but as the practical application of this divine and natural order.
The function of Ma'at in the legal system was profound. Judges were considered "priests of Ma'at," and their role was to ensure that their decisions reflected its principles of truth and fairness (Assmann, 2002). The ultimate expression of Ma'at's legal significance is found in the "weighing of the heart" ceremony, described in the Book of the Dead. After death, the deceased's heart was weighed on a scale against the feather of Ma'at. If the heart, representing the person's conscience and the deeds of their life, was lighter than the feather, they were granted eternal life. If it was heavy with wrongdoing, they were condemned to oblivion (Taylor, 2001). This imagery powerfully illustrates that human actions and, by extension, human laws were constantly judged against an eternal, divine standard of righteousness. Ma'at thus represents an ancient form of higher law, where legal validity is inextricably linked to a pre-existing cosmic and moral framework.
The Western Tradition of Natural Law
The tradition of natural law, prominent in Western jurisprudence, similarly posits that there is a higher law against which human-made (positive) law can be judged. Unlike Ma'at's direct connection to cosmic order, classical natural law theory holds that this higher law is accessible to all people through the faculty of reason. The Roman orator Cicero provided a famous definition, stating that "True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting" (Cicero, 1928, De Re Publica). This suggests that fundamental principles of justice are not culturally specific or dependent on the whims of a ruler, but are inherent in the natural order of the world and discoverable by human intellect.
This tradition was later synthesised with Christian theology by thinkers such as St. Thomas Aquinas. Aquinas (1947) developed a hierarchy of law: Eternal Law (God's plan for the universe), Divine Law (revealed in scripture), Natural Law (the part of Eternal Law discoverable by human reason), and Human Law (positive law). For Aquinas, a human law is only truly a law if it conforms to natural law. He famously endorsed the principle of lex iniusta non est lex (an unjust law is not a law), suggesting that laws which violate the principles of natural reason are not legally binding. While modern natural law theorists like John Finnis have developed more secular versions, the core idea remains: law's authority is not derived solely from the fact of its enactment but from its consistency with fundamental moral principles that are seen as objective and universal (Wacks, 2020).
Ubuntu: Communal Harmony and Human Dignity
Ubuntu is a philosophy originating from the Bantu-speaking peoples of Southern Africa. Often translated as "I am because we are," its central tenet is that a person's humanity is realised through their relationships with others (Tutu, 1999). It is a profoundly communitarian worldview that places emphasis on interdependence, compassion, social harmony, and human dignity. Ubuntu is not an abstract theory but a lived ethic that guides social and legal interactions. It proposes that justice should aim not for retribution but for the restoration of harmony within the community.
In the post-apartheid era, Ubuntu has been explicitly incorporated into South African jurisprudence. The Constitutional Court, in the landmark case of S v Makwanyane and Another, which abolished the death penalty, drew heavily on the principles of Ubuntu. Justice Langa noted that Ubuntu "emphasises community, and the interdependence of the members of a community. It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance" (S v Makwanyane, [1995], para 224). This shows how Ubuntu provides a moral standard for law, prioritising restorative justice, reconciliation, and the affirmation of human dignity over purely punitive measures. As Justice Mokgoro (1998) explained, Ubuntu's spirit of "reconciliation, and the value of human life" provides a normative framework for legal interpretation, especially in a society seeking to heal from deep divisions. It functions as a source of law that is grounded not in divine command or abstract reason, but in the value of human relationships and community well-being.
A Comparison of the Three Concepts
When compared, Ma'at, natural law, and Ubuntu reveal both significant common ground and important distinctions. The primary similarity is that all three stand in opposition to a strictly positivist view of law. They each provide an external moral yardstick—be it cosmic order, reason, or communalism—to evaluate the justice and validity of human laws. Each tradition insists that law is more than just command; it must be infused with a moral purpose.
However, their differences are equally instructive. The source of their moral authority diverges significantly. For Ma'at, the standard is a divine and cosmic order established at creation. For classical natural law, it is universal reason, a faculty inherent in every individual that allows them to perceive objective moral truths. For Ubuntu, the standard is the community itself and the web of relationships that sustain it.
This leads to a different focus. Ma'at is concerned with maintaining a grand cosmic balance, where the individual's role is to act in a way that upholds this universal structure. Western natural law, especially in its modern manifestations, has often been used to ground theories of individual natural rights, protecting the individual from the state. Ubuntu, by contrast, is fundamentally relational. Its focus is on restoring social harmony and ensuring that legal processes affirm the dignity of all involved, reflecting the belief that individual well-being is inseparable from the well-being of the community.
Conclusion
In conclusion, the concepts of Ma'at, natural law, and Ubuntu demonstrate that the quest to ground law in a higher morality is a shared feature of human societies, not an exclusively Western preoccupation. While all three traditions challenge the idea that law is merely what a sovereign commands, they offer distinct visions of justice. Ma'at looks to the cosmos for a standard of eternal order and truth. The natural law tradition turns to universal human reason to discover timeless moral principles. Ubuntu finds its moral compass in the value of human community and interdependence. An examination of these diverse jurisprudential foundations enriches our understanding of law, revealing that its connection to morality can be conceptualised not only in terms of universal reason or rights but also through the principles of cosmic balance and communal harmony.
References
Aquinas, T. (1947) Summa Theologica. (Fathers of the English Dominican Province, Trans.). Benziger Bros.
Assmann, J. (2002) The Mind of Egypt: History and Meaning in the Time of the Pharaohs. (A. Jenkins, Trans.). Harvard University Press.
Cicero, M. T. (1928) De Re Publica, De Legibus. (C. W. Keyes, Trans.). Loeb Classical Library, Harvard University Press.
Karenga, M. (2004) Maat, The Moral Ideal in Ancient Egypt: A Study in Classical African Ethics. Routledge.
Mokgoro, Y. (1998) 'Ubuntu and the Law in South Africa', Potchefstroom Electronic Law Journal, 1(1).
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.
Taylor, J. H. (ed.) (2001) Death and the Afterlife in Ancient Egypt. The British Museum Press.
Tutu, D. (1999) No Future Without Forgiveness. Rider.
Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford University Press.
