Multiculturalism, Legal Pluralism and the Separability Thesis: A Postmodern Critique of ‘An African Case for Legal Positivism’
Idowu William & Moses Oke
Dept. of Philosophy
Obafemi Awolowo University
This is a refereed article published on: 20 December 2008
Citation: Idowu, W. & Oke, M. ‘Multiculturalism, Legal Pluralism and the Separability Thesis: A Postmodern Critique of ‘An African Case for Legal Positivism’’, 2008(2) Law, Social Justice & Global Development Journal (LGD).
In what ways can it be said that legal positivism is suitable for African legal systems? What, actually, are the limits of legal positivism with respect to the dynamics of plurality of laws and legal structures in African society? What is the implication, for legal positivism, where individuals and groups in nation-states in Africa tend to give primacy to laws, legal structures and systems that tend to conflict with state laws, legal structures and systems? Addressing these questions the paper is a critical assessment of the theses that advocate the adoption of legal positivism for African legal systems. Challenging this position Idowu and Oke interrogate whether there is a necessary connection between multiculturalism and pluralism on one hand and the subscription to the legal positivist jurisprudence of ‘separability’ on the other? Citing the failure of proponents of the legal positivist thesis to adequately answer the multicultural question “how does legal positivism create norms and standards that are indeed suitable and appropriate for all cultures?” the paper undertakes, in the African context, a postmodern critique of this problematic relationship between these concepts.
The debate over the nature and possibility of African jurisprudence, from a historical perspective, is a chequered one. That history, in certain terms, is reminiscent of the then, but no longer, controversial debate over the possibility of an African philosophy.1 Evidently, the possibility of both jurisprudence and philosophy in Africa, sharing the view of Nkiriuka, centres primarily on the definition of the African self, its distinct features and the understanding of that self in the light of its intellectual components.2 In her words, inquiries that explore African philosophy or African legal theory are “attempts to arrive at some sense of identity after colonialism.”3 Perspicuously, it follows that several attempts at pontificating what the nature of African jurisprudence or legal theory is, interpreting the mindset of Nkiriuka, belongs to what may be generally called postcolonial theory formation.4 As a matter of fact, African postcolonial discourses, even though few in the area of legal theory, generally consist of questioning the legitimacy of the impression and content of imperial thought and its fascinating impact on the direction of living reality amongst the colonised.
This, in a very relevant sense, not only explains the nature of thoughts on the possibility of African legal theory but equally explains why there is a gap in the literature on African legal theory. For Okafor, what was actually wrong with legal thought in Africa was that while practice actually existed, theory was inadvertently missing. Africans had laws, practiced laws, so to say, but never had a theoretical understanding of the sophisticated sets of laws that were in practice. His basic justification for this view, influenced by Sir James Marshall,5 consisted in what he regarded as the absence of codified rules of law, given that it was not until the late 1960s that the articulation of the ideas that are embodied in the various African practices and patterns of life took off with the publication of Bantu Philosophy.6 Retrospectively, four distinct stages are discernible in the historical quest for this aspect of the African philosophy of society. In the first instance, there are those who contend that there is no such thing as African jurisprudence or legal theory.7 This may be termed the sceptical school. The contents and constituents of that scepticism have, of course, by now been transcended. The influence and legacy of colonialism in the framing of that assertion cannot be overemphasised. This brand of scepticism may have formed one of the several reasons why the 37 Volume, the 2006 edition, of the Cambrian Law Review was devoted to exploring the possibility of African legal theory.
Secondly, there are scholars who are of the opinion that what represents the heart of African jurisprudence is indiscernible but at best represents a combination of customs and conventions which are clearly below the level of critical ratiocination.th This school may, for the purpose of neat classification, be referred to as proponents of ethno-jurisprudence in Africa. The impression here is that what may be said to be paraded in the annals of the history of Africa in terms of representations, categorisation of laws and the principles that underlie it are nothing but ethno cultural, religious and moral ideas. For this group, it is no wonder that morality or moral rules are the basic regulative stuff on which lives are administered, governed and, altogether, directed in most African communities. Given the frame of ethno-jurisprudence existent in such societies, it is not a misnomer to interpret such a society as what Hart reputedly regarded as “a pre-legal society”8 in which rules of citizen-obligation are entirely moral in nature.
In the third place, there are those who attempt interpreting the nuances of African realities in light of existing thoughts and trends in mainstream, western jurisprudence.9 For want of a better name, this school can be categorised as the Universalists with the supreme contention that jurisprudence is the same globally and in the universal sense. It posits that there are no cultural interventions and entries in the nature and consideration of jurisprudence. Theories and concepts are formed from a general, universal experience and any claim to cultural uniqueness distorts the essential character of that conceptual attribute. This group concludes that any culture whose legal frame does not conform to that general attribute is less deserving of the name jurisprudence.
The opinion of the fourth group of scholars and thinkers on the nature of African jurisprudence is of particular interest. For this group, there exists an African jurisprudence i.e. a set of ideas about, concerning and around law which is basically developed from experiences peculiar to Africa.10 Even though controversies abound among these scholars over what is exactly meant by ‘experiences peculiar to Africa’, it is believed that those controversies centre on different interpretations of what is implied when the African worldview is subjected to critical analysis. This group may be called proponents of the possibility and actuality of African legal theory - alternatively it will not be out of place to tag this school of thought as both optimists and culturalists. Reading Nkiriuka’s paper, one is inclined to brand her as an African Cultural Optimist. For her, “to think of the concept of law as anything other than universal is to misunderstand its nature. However, our argument is not that the concept of law itself is particularist but that it is subject to particularist characterisations and the characterisations that we currently have are fundamentally Western and do not represent the whole of the socio-cultural experiences of Africans.”11
In focusing on the problem of legal pluralism in nation-states of Africa, the concern of this paper is critically located within the third perspective, the Universalist school: those who attempt to give an intellectual representation of African jurisprudence by interpreting its nuances and nature in the light of existing conceptual prisms and trends in mainstream jurisprudence. These scholars are of the view that African Jurisprudence is not too different from mainstream Western Jurisprudence, hence the question whether there exists a separate sphere of thinking of legal theorisation called ‘African Jurisprudence’ appears unnecessary and pointless. The grand objective of this third position has always been to interpret and apply the nuances of schools of thought in mainstream jurisprudence such as positivism, naturalism, postmodernism, realism etc as not only reflective of Anglo-Saxon jurisprudence but also reflective of African philosophy of society and the African legal tradition.
More precisely, within this tradition can be discerned the attempt to make a case for the adoption of legal positivism as a legal doctrine, ideology and framework for Africa’s fledgling legal systems. Legal positivism and the endorsement of the Separability thesis - i.e. the separation, conceptually, between law and morality - is perhaps the best antidote to the fledgling nature of African legal systems considered from the point of view of multiculturalism and pluralism. From this perspective, nations-states in Africa, by adopting legal Positivists’ Separability thesis as the philosophical, ideological and jurisprudential basis of law despite the plurality of customary laws that exist within the state, practically, are stemming the tide of pluralism.
The dilemma inherent in legal pluralism has to do with the attitude of individuals and groups in these cultural normative spaces in relation to legal systems sanctioned by the state. This dilemma creates complex challenges that demand a better understanding not only of the normative social spaces or legal orders themselves but also of how individuals and sub-groups inhabit and navigate through them. More than this, however, what is inviting for serious critical scrutiny is the philosophical justification and basis for managing the complex challenges and the dilemma they pose for the African legal system. This, among others, is the concern of this paper.
The question is in what ways can it be said that legal positivism is suitable for African legal systems? What, actually, are the limits of legal positivism with respect to the dynamics of plurality of laws and legal structures in African society? What is the implication, for legal positivism, where individuals and groups in nation-states in Africa tend to give primacy to laws, legal structures and systems that tend to conflict with state laws, legal structures and systems? In articles published in the International Philosophical Quarterly in the mid-eighties, Okafor, Taiwo and Nwakeze all contended that legal positivism is a bad legal theory for African legal system. Against this view, Jare Oladosu, in a thought provoking paper, contended that the premises and arguments of these scholars were flawed, claiming instead that an African case can be made for the adoption of legal positivism on cultural grounds, that is, bearing in mind the multicultural and pluri-ethnic nature of African societies and countries.12 Reflecting a strong appeal to the fact of multiculturalism in Africa, the importance of that paper consists in what the author considers to be the merit of legal positivism in the face of the heterogeneity, pluralism and multiculturalism of the African continent. The beauty of legal positivism for Africa, the reasoning goes, consists in the fact that it alone subscribes to the thesis that law and morality be separated conceptually which is what African legal systems actually need.
The present paper is a critical assessment of the ground or advocating the adoption of legal positivism for African legal systems. The assumption in Oladosu’s paper is that pluralism is an inherently problematic phenomenon. Such an assumption is wrong inasmuch as there is no proof to show that pluralism is a dangerous and problematic phenomenon. The questions of relative importance to this task are: is there a necessary connection between multiculturalism and pluralism on one hand and the subscription to the “jurisprudence of Separability” on the other? Does multiculturalism and pluralism necessitate the jurisprudence of Separability? What is the position of the Separability thesis in relation to the idea of legal pluralism?
The argument of this paper consists in the view that inasmuch as the popularity and merit of legal positivism and its Separability thesis is obvious to its proponent and, perhaps, its opponents, its supposed merit for the African continent in the context of multiculturalism and pluralism is self defeating because it still fails to answer the question of how does legal positivism create norms and standards that are suitable and appropriate for all cultures. It is concluded that the Separability thesis, as advanced by Oladosu, constitutes an underestimation of the beauty and positive challenges of pluralism including, and especially, legal ones. At best, it may be regarded as an escapist agenda or solution. It does not actually solve the many challenges posed by pluralism. It is contended that even if pluralism is a gravely problematic phenomenon, the Separability thesis is not and cannot be a solution to the problem since the problem is not actually adequately conceptualised. In the end, the paper posits that the concern of the author represents a projection of what Peter Fitzpatrick calls one of the “myths of modernity”, or an inclination towards what one might call legal monocentricity. This is the basis for a postmodernist assessment of legal positivism, Separability thesis and African legal systems.
For proper understanding of the concerns and the arguments of the paper, the paper shall be divided into four sections. The first consists in conceptualising legal pluralism. The second section consists in understanding the philosophical and intellectual background to the suggestion of legal positivism for Africa’s fledgling legal systems. The third consist in the content and substance of the case for legal positivism for African legal systems. The fourth section shall be devoted to a postmodernist critique of the suggestion of legal positivism for Africa and the conclusion of the essay.
Conceptualising Legal Pluralism
In a general sense, the perception about legal pluralism is that legal pluralism seeks to project law as an entirely complex phenomena or institution, or what Simon Roberts could be said to have branded as “irresponsibly broadening the concept of law.”13 This observation is true but only in a partial sense. How? Law, indeed, could be seen as a complex phenomenon inasmuch as it is true that, in jurisprudential circles, the definition, discussion and perception of law has been pertinently partial, worrisome and wearisome. This is why Hart, for instance, believes that the question ‘what is Law’ is perhaps the most difficult question ever asked in the history of human society. In the words of Hart, “No vast literature is dedicated to answering the questions ‘what is chemistry?’ or ‘what is medicine?’ as it is to the question ‘what is law?’” For Hart, therefore, the question of what law is constitutes one of the perplexities of legal theory.14
The conceptual problems involved in this seemingly simple question provide the basis and the format for articulating and discussing the various divergent opinions on the subject matter of jurisprudence. Pospisil even acknowledged that the term ‘law’ is only applied to a construct of the human mind given that it does not exist in the actual world.15 Regrettably, the concept of legal pluralism has added to the list of the perplexities of jurisprudence. The exact nature of the worry, according to Benda-Beckmann, is the unwillingness “to admit the theoretical possibility of more than one legal order or mechanism within one socio-political space, based on different sources of ultimate validity and maintained by forms of organization other than the state”.16 But then, it is not entirely true that legal pluralism projects a complex notion of law in that the complexity is dulled by the fact that legal officers and officials, in their everyday actions seem confident about what it is they are out to enforce. The implication is that there is a wide gulf between the world of practice and the world of concepts and theory. But then, law is both a practical institution as well as a conceptual phenomenon. The beauty of the debates on legal pluralism, however, is anchored on a central concern which jurisprudence and the law has not taken time to consider, which is that, ‘every society is legally plural, whether or not it has a colonised past.’17 Debates on legal pluralism are thus a challenge and revolt against the heartbeat of modern jurisprudence (especially as evinced in the debates and controversies between the naturalists and the positivists over the nature of law). The core of modern jurisprudence can be said to be a redivivus of the Cartesian quest which denies and is oblivious of the plurality in which the world and its epistemology is ensconced.
Lamentably, however, despite the challenges that discussions on legal pluralism pose to modern jurisprudence and modern jurisprudence’s obsession with the Cartesian quest, what is conceptually rendered as legal pluralism is itself inundated and enervated by lingering concerns over its conceptual characterisations. For example, in his conceptual elaboration on the basic meaning of the term legal pluralism, John Griffiths18 noted that his account of legal pluralism is a descriptive rather than a conceptual one. The problem with that move could be its inherent limitation in the sense that such a characterisation may not be all-embracing meaning that it could descend to the level of a particularistic understanding of what pluralism, in the legal sense, means. Nevertheless, the beauty of Griffiths’ descriptive conception is that it purports to be a reaction and challenge against what he himself called “the ideology of legal centralism”19, what we have, in our modest understanding, conveniently tagged the “ideology of monocentric jurisprudence.” As defined by Griffiths, legal centralism is an a priori assumption about the way the legal world ought to be, should be and in fact is. What legal centralism denies, according to Griffiths, is the existence of a competitively normative order with the institution of the state. That is why it sees law as nothing but the law of the state. Legal centralism, in his words, is the view that:
“Law is and should be the law of the state, uniform for all persons, exclusive of all other laws, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, family, the voluntary associations and the economic organisations exist, they ought to be and in fact are hierarchically subordinate to the law and institution of the state.”20 Clearly, for Griffiths, legal pluralism is doomed to eternal irrelevance and its factual status reduced to a moribund legacy if, indeed, legal centralism is true. Centralism, given its scope and sway, immediately establishes and rekindles the very concern that has brought modern philosophy, precisely, epistemology to a dead-end. But in what sense can we say that centralism is true, that law is actually what proceeds from the state, that other normative spaces are secondary or irrelevant? There is no other way of characterising centralism’s assumption of a supreme claim to normative ordering in human society other than what has been said earlier. That is the view that the state’s normative base is not consensus, not based on consent but a historical recourse to force with repeated rediscovery of its magnitude of right but which is no longer consistent with living reality.21 In other words, to hold the assumption that only state laws are primarily and normatively obligatory is to hold an incorrect assumption about the existential condition of man in this twenty-first century. Igba ti yi pada (times have changed) says a popular adage among the Yoruba people of south-western Nigeria. It is in this sense that we must understand Griffiths’ conclusion that legal centralism is at best an ideal, an illusion, a myth, less euphemistically, a falsehood.22 What is true of the world is that it is plural in nature. The plural nature of the world endorses the view that “law in modem society is plural rather than monolithic, that it is private as well as public in character, and that the national (public, official) legal system is often a secondary rather than a primary locus of regulation”.23 To buttress the dynamic nature of the concept, Griffiths further distinguished between what he calls ‘weak legal pluralism’ and ‘strong legal pluralism’24 a move shared, though in a different sense, by Sally Engle when she eloquently distinguished between ‘classic legal pluralism’ and ‘new legal pluralism’.25 While not completely out of place, such classifications are, at best, an attempt to multiply entities unnecessarily especially where the concept that is to be qualified is still conceptually controversial.
In ostensive terms, legal pluralism is illustratively defined where it is possible to point to the existence of myriads of laws such as official law, state law, modern law, unofficial law, folk law, people’s law, tribal law, indigenous law, non-state law, customary law, received law, imposed law, native law, transplanted law with each sense of law commanding adequate and meaningful attention within nations-states. Following this ostensive definition, we may have to agree with Moore that law, from the perspective of legal pluralism, is understood very broadly as cognitive and normative orders generated and maintained in a social field such as a village, an ethnic community, an association, or a state.26 Many states in Africa, including the Nigeria that we are aware of, represents and captures the essence of what such a cognitive and normative order is.
However, theoretically, legal pluralism is at first hand defined and characterised to mean the complexity of law in the light of modern realities. These modern realities involve the interplay of many factors: colonialism, imperialism, globalisation, ICT-induced revolution and migration being very worthy examples. While the complexity is realised as a veritable component of the characterisation of law, it does not in any way suggest abstraction around the concept of law. Law may be said to be plural in nature, in dimension and in context but then it is not the same as saying that law is an abstract concept. What may lead one to regard law as plural are not exactly the same sets of ideas that oblige one to regard it as abstract. Legal pluralism conceives of law, at least from this point of view, as an institution with consequences in human society. Its focus of meaning straddles spaces of normativity in human relations to the more practical and applied realm of legal understanding. This movement is what Sally Engle Merry poetically described as an “intellectual odyssey”27 involving the history and progress of nations and societies from the remotest idea of human social organisation to the most complex.
Unfortunately, anti-pluralists perceive pluralism as a return to barbarism or the nationalistic and tribal stupor which dwindled the glory of communities in the past, a task which modern states now evoke and project. What states, in the modern era, are seeking to do is to, if possible, eradicate differences. The present age of globalisation, the restructuring of global capitalism, the dominant role of international financial institutions, transnational corporations, technological and informational revolution, is a dramatic one, a drama which is centred on the reduction of the human globe to a global village. To advocate plurality is to sound non-conformist in a world reverberating under the influence of the future possibility of a single World Order. The anti-pluralist, from the perspective of globalisation, posits that a bifurcation or creation of a dichotomy in the way nation-states live their lives, is a way of not just splintering progress but obfuscating our understanding of history. For them, globalisation has afforded the world a means of eroding and eliminating differences which have all along been inimical to the transformation of what Tade Akin Aina calls the “transformation of the relation between states” and “the universalization of certain practices.”28 The pro-pluralists are of the view that pluralism is the best model for enhancing the return of the citizen29 back to the life and essence of activity which had always been crippled by the Hobbesian invention of the ‘new leviathan’, that is, the modern state and its glowing aura of magisterial omnipotence. Most post-modernists, or pragmatists as Richard Rorty30 prefers to call them, see pluralism as the best interpretation of the conditions of the world. As Rorty puts it, objectivity and universality are enemies of plurality; in its place, solidarity should take over.31 The reflection above over the respective position of the anti-pluralist and pro-pluralist has been applied to the lingering dilemma over legal pluralism. In their reflection over the dilemma of legal pluralism in India, Eberhard and Gupta32 s eem to share the opinion of the pro-pluralist. For them, modern states have always been the harbinger of the dilemma of pluralism in contemporary societies. Modern States, just like the colonial state, by ordinance and force, often seek to destroy the plural order by resort to some ideology of a curious sort. Their reflection on the nature of the dilemma of legal pluralism is penetrating. According to them,
“Indeed, modern law is characterized by general and impersonal rules to be imposed in a uniform way by an external authority, the state, which holds the monopoly of legitimate violence. For a long time the modern project of the rationalization of society’s organization via state law and the walk towards uniformity, usually presented as a move towards universality, has been equated to civilization whereas pluralism was interpreted as a sign of allegedly ‘primitive’ societies.”33 From the point of view of what he described as critical legal pluralism, Roderick Macdonald34 challenges the normative transnational context which defines legal pluralism as the simultaneous existence - within a single legal order - of different rules of law applying to identical situations35 or the interaction of neatly defined official and unofficial normative orders in one social field. According to Macdonald, such normative orders grouped under one field are not stable, unambiguous, and self-contained regimes interacting along clear boundaries.”36 Emphasising the notoriety of the word “Legal pluralism”, Étienne Le Roy,37 from the perspective of French jurisprudence, posits that modern legal scholars should rather talk of “multilegalism.” For him, laws’ plural nature is not captured in the old label, since it is silent on the nature of law as a phenomenon. The label “legal pluralism” only emphasises the addition of laws rather than the nature of plurality that is in consonance with the nature of law. From a critical perspective, it appears that Le Roy is sounding too ideological or less euphemistically, too abstract. The word “multilegalism” does not appear to say more or less than the phrase “legal pluralism”.
As a matter of fact, Le Roy’s ‘multilegalism’ does not seem to vitiate, in our estimation, the sense and meaning conveyed by the word ‘legal pluralism’. Law may not, in fact, be seen as ensconced in plurality phenomenally but in the fact that it is replicated in the existence of spaces of normativity which compels us to assert the plurality in terms of those spaces rather than ascribing that pluralism or multilegalism to law as an essence or reality. Indeed, if we take to Le Roy’s conception, it is very likely that the science of the nature of law with respect to the debate on pluralism will be found multiplying entities unnecessarily. What is needed is a theoretical blueprint that intestinally defines the nature of law in the light of the understanding of modern complexities and realities and that creates space for normative contestations but which dynamically challenges the sensitivities encoded in citizenship obligations.
In other words, what is required is not debates or controversies over words nor choice of words but understanding the dilemma citizens in nations-states are exposed to in the face of competing sources of obligation.
This aspect of legal pluralism, no doubt, is important for citizenship in nations-states of the world. This shall be buttressed as we go along. But, also, this makes nations-states one of the most challenging political arenas for the realisation of the challenges involved in the idea of pluralism particularly in the area of jurisprudence.
From the above, it seems that legal pluralism, as a reality of our modern times, naturally is in consonance with the idea of nations-states. But then what is meant by nations-states? Throughout this article, emphasis has been on nations-states rather than nation-states. From this point on, it is necessary to have some conceptual clarification of the notion of nations-states and nation-state since many ideas seems to be bandied about concerning those concepts. If we are to understand the dynamics of legal pluralism in nation-states, it behoves us to unravel what is actually meant by nation-states since, by doing this, we shall end up understanding better in what ways legal pluralism poses a huge challenge for nation-states.
There are conceptual confusions over concepts such as nation, nation-states and nations-states. Sometime, or even many times, nation-states is taken to be synonymous with nations-states. But then, there is a world of difference between those two concepts. However, to understand the difference(s) we need to pay attention to the root word which is nation. As an ethno-cultural community, a nation, etymologically, means a birth group or a blood-related group. According to G. W. Herder,
Nothing therefore is more manifestly contrary to the purpose of political government than the unnatural enlargement of states, the wild mixing of various races and nationalities under one sceptre…such states are but patched up contraptions, fragile machines, for they are wholly devoid of inner life.38 Based on this original meaning, that is, as an ethno-cultural community, the word ‘nation’ has come to attract different meanings. In one instance, the word ‘nation’, as argued by Gyekye has come to stand for “a group or community of people who not only share a common culture, language, history, and possibly a territory but believe that they hail from a common ancestral background and are therefore closely related by kinship ties.”39 Viewed from this perspective, it seems that ethnicity is the most important crucible of a nation. However, according to Vilfredo Pareto, ethnicity is one of the vaguest terms known to sociology.40 It may also be regarded as a complex and controversial concept41 especially in terms of definition, scope, relevance and, precisely, its limit in the analysis of the structure and nature of political societies in the modern world, especially, Africa.
Given these hordes of controversies on the nature ethnicity and, importantly, given the linkage between ethnicity and a nation, one could say that a nation is a social concept rather than a political concept. Nation, in this sense, is only a social entity. However, it is possible for a nation, in this sense, to develop into a state. According to Gyekye, this ethno-cultural community can evolve into a state if it “acquires the relevant appurtenances of statehood.”42 This introduces the second meaning of a nation as one that has evolved to be a politically sovereign state having acquired the appropriate paraphernalia o f statehood.
In this sense, a nation is no longer a social concept but a political concept. There is a transformation or metamorphosis from its social milieu into a political entity. The meaning is that though it was formerly a natural birth group, transformation in its political life has made it acquire the essence of statehood. As a sovereign state, nation in this sense possesses the inherent qualities and virtues of nation in the first sense (the nation-state). Loyalty, civic-mindedness, commitment, linguistic homogeneity can be found to characterise this sort of union.
In the third sense, some very zealous African scholars43 use the word nation interchangeably with the word state. Prompted, perhaps, by a sense of nationalistic optimism, a state such as Nigeria or Kenya, in their estimation, can be regarded as a nation even though it is a state. What they often mean, even though wrong, is that a nation can be seen as a multinational state of ethnically and culturally complex and plural political communities; such a state c onsists of nationalities that were hitherto an ethno-cultural community. This third understanding of a nation as a multinational state means that though it is a state, it nevertheless, consists of many ethnic groups, many nations hence its multiethnic, multinational character. Such a multiethnic state as this, it is often believed, becomes predisposed to some problems which the concept of a nation in the first and second senses could not be said to have.
It is within the understanding of this third meaning that the concept of legal pluralism makes sense and perhaps, importantly, poses a world of daunting challenges. When a case is made for Positivists’ Separability thesis in Africa, owing to the complex nature of African societies, the picture of Africa that is conjured, in our estimation, is that of a nation in the third sense i.e. as a nations-state. From an empirical point of view, therefore, one of the daunting challenges confronting most African States is how to create or build a state that is politically independent but comprising many nations or ethnic groups. Legal pluralism is often suggested as one of the several means of assuaging the familiar crisis that often bedevils such plural and multiethnic societies.
However, our analysis reveals that there is a distinction to be made between nation-state and multinational state. A multinational state clearly is a nations-state; one comprising a whole set of ethnically disparate segments with distinctive characterisation in terms of culture, language, values etc. This, however, is different from a nation-state. A nation-state is one that is primarily a nation in the first sense but that, in addition, has acquired the relevant machinery of statehood to evolve into the second conception. In other words, it has evolved from a mere social concept or phenomenon to a political one. It possesses the characters of statehood. In the words of Gyekye:
“A political community with a culturally homogenous citizenry and sovereign power concentrated at the centre to which all the citizens are subject and owe loyalty will be a nation-state. This in fact is the most appropriate meaning of the political concept of nation-state: a nation, that is, an ethno-cultural community that has evolved into a state, having acquired the relevant appurtenances of statehood.”44 In evidential terms, most African states are to be classified as nations-state in the sense that it is a state that combines many nations together in a single and bounded territory. Thus, in considering legal pluralism within the nation state, what is actually at stake is a consideration of the implication of law’s plural nature and dimension within nations-states. The dynamics of legal pluralism, in whichever way it is viewed, is an offshoot of ethnic nationalism in nations-state’ agenda in the Third World. If at all it is viewed as inherently problematic, it is not likely to be a problem in a nation or in a nation-state.
Granted the postulate that a nation in the first and second senses do not exist in today’s society, they, perhaps, could have been products of the past but, then, what is immediately important in guiding our enquiry altogether is its conceptual possibility. Such conceptual possibility lends credence to the value of the philosophical enterprise one which is apparently concerned with, in the opinion of Bertrand Russell, uncertain, vague issues, innocent but useless trifling, hair-splitting distinctions, and controversies on matters concerning which knowledge is impossible.45 As hinted earlier, this aspect of legal pluralism fosters a significant discussion on the notion of citizenship in nations-states as understood above. According to Brubaker, debates about citizenship, in the age of the nation-state (understood as nations-states), are debates about nationhood – about what it means, and what it ought to mean, to belong to a nation-state. One such characteristic norm of citizenship in nation-state is the idea of egalitarianism. As adapted from Brubaker’s analysis, it is contended that legal pluralism is an attempt to spread the conceptual meaning of egalitarianism to reflect citizenship expectation within nations-states.46 To attempt to erode such pluralism is to stifle this conceptual understanding of egalitarianism in the area of jurisprudence. It is our conviction that pluralism endorses, in a greater deal, the egalitarian ideology inasmuch as it expresses, on one hand, and accommodates, on the other hand, our diversities. While it is true that legal centralism places everyone under a single spectrum, it, however, does not sympathise with our diversities. The background to the debate and various responses on legal monocentrism and polycentricism in Africa, viewed from the perspective of legal pluralism within the nations-state, constitute the remainder of the paper.