There has been much debate on the question of rights in African communitarian thinking. Some scholars have averred that duties are prior to rights in African communitarian society, and that to prioritise rights is foreign to the non-Western perspective. Yet, there are others who argue that in non-Western societies rights are prior to duties. I share this view. I present my position by arguing that economic rights in African communitarianism affirms autonomy of the individual, though the same rights are expressed through the ideas of consensus and human well-being. In my argument I state that human well-being is well expressed as a communal effort climaxed through consensus where all these are premised on individual autonomy. By arguing in this way, I respond to the accusation that says African philosophers who argue for the priority of rights have failed to demonstrate how rights are considered prior to duties in African societies.
David Bilchitz
These modern constitutions that have been adopted largely in the Global South enshrine a set of divergent values and rights that embrace both political philosophical concerns relating to liberty as well as distributive equality. This article seeks to grapple with the approach to distributive justice that can best give expression to the multiple normative commitments of these constitutions as well as key institutional features thereof. I argue for these societies to adopt what I term a two-tier theory of distributive justice: these theories require a set pattern or threshold to be achieved in a certain domain but also allow for a tolerable variation in resource distribution in another domain. I seek to show how two of the foremost egalitarian liberal theories of distributive justice – that of Ronald Dworkin and John Rawls – exemplify this structure as well as the resources they have to address the problems thereof. I then argue that a two-tier structure of a theory of distributive justice can help explain and reconcile key features of these modern constitutions. In particular, I shall seek to show the manner in which such theories conform to understandings of the role of a constitution, and the importance of preserving space for democratic decision-making. At the same time, two-tier theories assist in delineating the appropriate role constitutional courts should play in addressing the distribution of economic resources in society. These theories also have important implications for the role of the state and markets. Such a structure, I shall conclude, gives effect to a particular conception of equality as well as liberty and so manages to reconcile these two normative values.