EnterText 4.2 William Idowu: African Philosophy of Law 52 WILLIAM IDOWU African Philosophy of Law Transcending the Boundaries between Myth and Reality Introduction It is an acknowledged fact that the literature on social history and anthropology is replete with varying and bewildering instances of the projections of Western cultural superiority and the fabulous representation of every sphere of the African possibility. These fabulous projections, apart from having their foundation in Eurocentrism, are aimed at creating negative images and stereotypes of Africans and their history. As excellently captured by Mohanty Chandra, Eurocentrism is produced when third world legal, economic, religious and familial structures are treated as phenomena to be judged by Western standards. When these structures are defined as underdeveloped or developing At best, Eurocentric perceptions can be branded as political and ideological propaganda meant to denigrate and desecrate the essence and existence of African realities. Often cast in a mythical form, the African predicament is based on the specious perception that Africans have no history.
EnterText 4.2 William Idowu: African Philosophy of Law One aspect of African life that has become subject to the harassment of Eurocentrism and thus a horrendous torrent of dismal interpretations is the African conception of law (jurisprudence) and the legal systems arising therefrom. Sourced in this age-long predicament is the persistent question is African philosophy of law jurisprudence) a myth or reality The mythic representation of African realities in general and the African conception of law in particular can be seen in several dimensions. These dimensions can be reduced, essentially, to two fundamental propositions. The first represents the myth of the claim to an African past before contact with the European world. The second mythic representation of Africa borders on the claim that even if Africans claim to have a history or a past, such histories are lacking in any literary, philosophical and intellectual significance. These myths encapsulate the heart and substance of the dilemma that African jurisprudence is plagued within a world reverberating under the influence of the globalisation of European values. The interrogation of the reality of the African jurisprudence project will be discussed under the second mythic representation of Africa and Africans. In this sense, a perceptive reading of these myths identified in relation to the African jurisprudence project can be seen as forming a complete whole. For instance, if it is true that Africans have no history it is not farfetched to conclude that they do not have reflective systems of law and by implication it shows that there is nothing unique about the African past and reality. A people’s system and conception of law is clearly connected with and rooted in their history. Once it can be demonstrated that Africans have no history, no past before
EnterText 4.2 William Idowu: African Philosophy of Law their contact with Europe, no significant system of law and rules can be ascribed to them. And what is more, it shows that talk about the unity of African law is at best mute since in the first instance, a deliberative and recognised system of law is rooted in one’s familiar history. But then, while each of these mythic representations of this aspect of African reality are open to serious questioning and critical examination, this paper is concerned with a critical examination of the basis of the claim that the existence of a distinct sense of theorisation and conceptualisation of jurisprudence that is African and not western is a myth. The several ways in which these myths have been represented and projected constitutes the basis of the present work. In methodological forms, the paper will adopt both the expository and critical methods in advancing its position. In the light of this, the paper seeks to consider the following. In the first place, attention will be drawn to the diverse mythification of the African jurisprudence project. In the second place, the paper will also seek to consider why the African philosophy of law is considered a myth and the factors that account for this perennial perception. Thirdly, the last section is concerned with the future of the African philosophy of law (jurisprudence. The Mythic Representation of African Jurisprudence The question whether there is an African jurisprudence or philosophy of law is not fresh. What is original however is the contemporary response to the age-old question. In addition, what is equally unique is the interrogation of the essence and role of the African jurisprudence project in understanding some of the aching realities in mainstream jurisprudence or legal philosophy. Interestingly, it has a counterpart. Its counterpart in this quest for significance and relevance is the controversy over whether there exists an
EnterText 4.2 William Idowu: African Philosophy of Law African philosophy. For over three decades now, scintillating debates over the existence of African philosophy have engaged the attention of scholarship allover Africa, Europe and the Americas. Drawing from the success of the debate over the possibility of African philosophy, African jurisprudence, which centres primarily on the reflections of scholars over the idea and theory of the realities of law in traditional and modern African societies, seems to be engrossed in the quest for pertinence in what can be called a search for the significance of its hidden history. At its heart is the view that to perceive the significance of the history of any subject or culture requires openness of mind. In fact, the significance of that history also lies very tellingly only in the memory of the storyteller. Even though the memory of the storyteller, Africans writing and telling their own history, maybe a worrisome burden, it is believed that this burden only has its explanation in the view that the requirements of history are always awesome. It is in this awesomeness that African jurisprudence seeks to locate the quest for relevance. For African jurisprudence, this consists in dispelling the mythic garment cast around its very survival. Essentially, there are quite a number of myths cast around the African jurisprudence project that are not only inviting but in need of serious examination. These will be discussed seriatim. Myth 1: Africans Do Not Have a History or a Past In the first place there is the myth that Africans do not have a distinct history apart from the history of their contact with the West. This myth about Africa has been given serious ideological attention in canonical works in an attempt to establish the difficulty of the African condition. According to this myth, Africans are not only denied a past, but
EnterText 4.2 William Idowu: African Philosophy of Law secondarily, whatever history or past Africans have, can be fruitfully considered as part of the history of Europeans in Africa. The Oxford historian Professor Hugh Trevor-Roper asserted a notorious variant of this feeling in the West about Africa in 1962 when he said Perhaps, in the future, there will be some African history to teach. But at present there is none there is only the history of Europeans in Africa. The rest is darkness…and darkness is not a subject of history…. 2 Earlier, in an address of 1854 to the American Colonisation Society of which he was vice-president, Commander Andrew H. Foote of the United States Navy contended that If all that Negroes of all generations have ever done were to be obliterated from recollection forever the world would lose no great truth, no profitable art, no exemplary form of life. The loss of all that is African would offer no memorable deduction from anything but earth’s black catalogue of crimes 3 Such prejudicial assertions about the African past are not only mythical but also empirically false. This, however, is one of the most fundamental of all the myths and is so strong because African slaves, as dishonoured people, were stripped of their history and the dignity and pride that accompanied it. But then the falsity of this assertion lies not only in the fact that it is a myth but also in the fact that it is never in conformity with the structure of the universe whether pastor present. In fact, ancient civilisations had the hub of their activity and operations built and constructed around African cultures, empires and kingdoms. For example, the history of Egyptian civilisation not only validates the promise of the African past and history, but also proves the point that philosophy, as a speculative enterprise, had its emergence and commencing point in Africa. The significance of ancient Egyptian history, civilisation and kingdom for African history is threefold one, it shows that Africans have a distinct history that is their own
EnterText 4.2 William Idowu: African Philosophy of Law two, it shows that African history is as valid as any other history in the world three, it proves the point that African history (and philosophy) has always had a strong connection, not dependence, with other continents, chiefly with Europe, since the Greco- Roman world. 4 Furthermore, the history of Christianity, the Greco-Roman era and the African thinkers it produced, such as Origen, 5 Tertullian and Augustine, to mention just a few, proves not just the validity of an African past and history but the fact that these thinkers were Africans in the actual sense The importance of this consists in the view that during the Greco-Roman era, interest in Africa was not just a possibility but an actuality. As argued by Masolo, the history of Christianity in its nascent stages…reveals to us the African input in the making of Christianity. These great Africans helped define some of the basic tenets of Christianity.” 7 However, there have been multifaceted fundamental objections to this claim of an African connection with Egyptian civilisation and history. The actual statement of the objection is the view that Egypt is not Africa and not part of Africa. Therefore, any claim of connection is self-defeating. Another variant of this objection is the view that when Africa is mentioned as not having history, Black Africa is the reference point, with Egypt or any other country in the north of Africa excluded. In all these, in my opinion, Hegel’s version of the story appears more radical and notorious than others. There are, however, two dimensions to Hegel’s opinion in relation to this work. The first concerns his denial of African history and the second relates to his denial of significant philosophical development and achievement by Africans. The second
EnterText 4.2 William Idowu: African Philosophy of Law dimension will be treated later in the work. In his philosophical history of the world, Hegel wrote that Africa proper, as far as History goes back, has remained—for all purposes of connection with the rest of the World-shut up it is the Gold-land compressed within itself—the land of childhood, which lying beyond the day of history, is enveloped in the dark mantle of Night. Its isolated character originates, not merely in its tropical nature, but essentially in its geographical condition. 8 In another light, Hegel concluded about the Africa-Egypt question that Africa must be divided into three parts one is that which lies south of the desert of Sahara — Africa proper — the Upland almost entirely unknown to us, with narrow coast-tracts along the sea the second is that to the north of the desert — European Africa (if we may so call it) — a coastland; the third is the river region of the Nile, the only valley-land of Africa, and which is in connection with Asia. Egypt…does not belong to the African Spirit.” 9 The question, at this stage, is how logical and true to facts are the claims and submissions of Hegel about African history including the Africa-Egypt question Our observation is that much of what is loaded in Hegel’s claim is tastelessly deliberate and a premeditated prejudice. The racial engineering and separabilism between Egypt and the rest of Africa conjured herein Hegel’s philosophy only lends credence to the common saying that when you cannot find the world you want, you can always create it. It is pertinent to contend that Hegel’s separability thesis on Africa and Egypt does not correspond to facts and details. A critical reflection on facts will bring out the absurdity of the claim. Indeed the falsity of Hegel’s claim can be seen in the unanimous agreement of over twenty of the best Egyptologists during an international symposium organised by United Nations Educational, Scientific and Cultural Organisation (UNESCO) held in Cairo in 1974.
EnterText 4.2 William Idowu: African Philosophy of Law The following submissions of the symposium doused the almost one hundred and fifty years racial commentary of Hegel about Africa. Evidently, it is not how long a view has been peddled that makes it true. A clue to its understanding maybe the source, the mindset and the sociopolitical context in which it was shared, received and propagated. After all, Copernicus unravelled the falsehood inherent in the Aristotelian science that held sway for over one thousand years. In the first place, Black Africa and Egypt share a similar linguistic community. In other words, Egyptian language as revealed in hieroglyphic, hieratic and demotic writings and modern African languages as spoken nowadays share some affinity when seen and closely observed in their several parts. And it is yet to be proved, scientifically, that the Semitic, Egyptian and Berber languages have not descended from a common ancestor. 10 The foundation of this opinion lies not in its truth but in the fact that it is appealed to by many, which is, speaking in terms of critical thinking, argument and evidence, one of the incredible instances of argumentum ad populum, i.e. appeal to popular opinion. Secondly, according to the submission of that symposium in 1974, ancient Egypt was not located in Asia Minor nor in the Near East but was essentially an African civilisation going by the manifestation of its spirit, character, behaviour, culture, thought, and deep feeling In essence, it is an agreed historical fact that Egyptian civilisation of the Pharaonic period, i.e. 3400-343 BC, was an essentially African civilisation. This cannot be removed from the rest of African history. It is a different argument to contend that African history and past is full of darkness. Even if it were true, for the sake of argument, that darkness remains the larger percentage of the African past, it is still a
EnterText 4.2 William Idowu: African Philosophy of Law fact that darkness is part of history. The African past can be defined in terms of distinct episodes, and varying patterns of history and memory the African has about himself. 12 Besides, Hegel’s conclusion about African history and the Egypt debate was neither a product of intense historical research nor born out of deep moments of pure historical observation, scientific investigations, experiments and experience. It was basically a product of prejudiced philosophical history which is informed by a particular mindset. Prejudices are born in the minds of men and as such maybe heavily situational, circumstantial and contextual. By the same token, it is from the mind that one begins the curative process. Regardless of the racial colouring that is often brought to bear on the intellectual comprehension and significance of the African past, we cannot arrive at a universal theory of the history of man in general without an apt reckoning of the African phase and dimension in man’s total existence. As argued by Lewis Taylor, no empirically sound general theory of society can be elaborated unless account is taken of every known form of man’s existence in society The African person and mind, it is not preposterous to argue, is not a modern or European invention but a product of a particular, distinct and significant history. Myth 2: Africans have Little or No System of Laws before the Arrival of Europeans There is also the myth that Africans do not have a reflective system of laws before the arrivals of the Western powers. Without any iota of doubt, any serious scholarship on the place of law in African realities must of necessity raise questions about prevailing concepts and theoretical approaches. This results from the fact that the architecture and
EnterText 4.2 William Idowu: African Philosophy of Law furnishings of jurisprudential and legal research have been by and large distilled from European and American experiences. This mythical representation of African life and philosophy of society has been expressed and strongly worded in several diverse dimensions, with varied and confusing replies ensuing. Probably the most prominent of these mythical representations of African law are anthropological reports and research contained in the works of Driberg (1934), Hartland (1924), and Paget (1951). For instance, while reflecting on the African system of law, Driberg reasoned that generally speaking, symbols of legal authority (i.e. police and prisons)…are completely absent, and in the circumstances would be otiose In strongly worded prejudice about Africa and African systems of law, RT. Paget (1951) opined that thought in tribal society is governed not by logic but by fetish. To the tribe, trial by fetish is just and trial by reason is unjust. it is futile to seek a reason in tribal justice, as it is not rational.” 15 Another variant of this myth about African law can be seen in the views of Smith. According to Smith, Africans only knew about customs instead of law In corroboration of this thesis, M’Baye contended that the rules governing social behaviour in traditional African societies are the very negation of law In furtherance of this thesis, M’Baye contended that traditional Africa sees every rule as law, meaning that Africans lack not only an understanding of the dynamics and language of law but also that African law cannot be distinguished from religion or morality. 18 In a more prejudicial form, Hartland, in particular, contended that there is the problem of substance in the ascription and description of the qualities of African law. For Hartland,
EnterText 4.2 William Idowu: African Philosophy of Law Primitive law is in truth the totality of the customs of the tribe. Scarcely anything eludes its grasp. The savage lives more in public than we do any deviation from the ordinary mode of conduct is noted, and is visited with the reprobation of one’s fellows. 19 The prejudicial nature of these assertions cannot be overemphasised. Regardless of the predilections, the mythical character of these assertions is obvious. In short, all these contentions miss the point. Except for the differences in social environment argues Dlamini, law knows no differences or race or tribe as it exists primarily for the settlement of disputes, and the maintenance of peace and order in all societies The same point was evinced by Elias. According to Elias, The two functions of law in any human society are the preservation of personal freedom and the protection of private property. African law, just as much as for instance English law, does aim at achieving both these desirable ends 21 But then, analysis must go beyond this point. The contention that Africans have little or no system of laws before encounter with Europe is gravely prejudicial. As argued by Sobande, three points of wisdom were the constituents of both traditional and even modern Yoruba society. The first wisdom is law or commands, i.e. Ase; the second wisdom is culture as reflected in social practices, i.e. Asa; and the last wisdom is taboo, i.e. Eewo.Ase is the reflection of the king’s command or the directives of the government which are believed to be unbreakable. These points of wisdom are either formally or informally portrayed in practices and actions that are commonplace in the society For example, the idea of law in Yoruba society is displayed and portrayed in cultural festivals and social dances. In the area of marriage, for instance, there are distinct dancing steps and songs that are performed during such a gathering that tell of the
EnterText 4.2 William Idowu: African Philosophy of Law kind of laws enjoined in that locality or even in the town at large. Those laws and taboos are pronounced in songs and chanting. The essence of the chanting is to acquaint the people with laws that are operative within the social institution called marriage. The same can be said of cultural festivals. Inmost cases, these laws are not written down but are believed to be registered and written in the collective memory and consciousness of all and sundry in the relevant society. That is why an average African society is said to be heavily communal. The absence of written forms of law furthers the communal feelings and belongingness such that anyone trying to break the law is often helped and warned by fellow citizens of that political or social group. The idea of Oowe, i.e. collective or communal help, is on the one hand asocial concept, but on the other it is essentially an agricultural engagement. Oowe also speaks of the existence of laws among the Yoruba people. These laws are defined into existence when citizens of a township engage themselves in the practice of Oowe. As asocial practice, though, the laws that define the relationship are not meant to be broken or set aside. They are necessary for the uplifting of social equilibrium among members of that same community. These outlined cases of social practices speak of the idea of law as exemplified in Yoruba communal life The pertinent question is what is law Even in Western jurisprudence, the question remains unanswered. On our part, it is our conviction that the prejudicial nature of this train of thought (that Africans do not have a system of law) for African studies and scholarship may appear obvious, but then the freshness of this racial bias is brought to light by the fact that among legal philosophers and in the field of the sociology of law, the nature and definition of law is about the most thorny and troublesome aspect. Indeed
EnterText 4.2 William Idowu: African Philosophy of Law the whole of legal philosophy seems to be clustered around this perennial difficulty. A century of ideological and listless debates and arguments on the very nature of law in mainstream jurisprudence amongst jurists and legal philosophers has left jurisprudence spent such that issues of utmost relevance to societal continuity and progress should undeniably takeover. Such debates and controversies, in our view, have only succeeded in projecting our ideological predilections and inclinations. Apart from this, the unsettled nature of this dilemma in general jurisprudence reveals the Eurocentric bias against Africa, Africans and African realities. If the nature of law is unsettled even in Western legal theory, it is preposterous to conclude that apart of the world is lacking in the understanding, conception and reflection on that same item of human knowledge. Citing living examples from the Barotse, Max Gluckman argues that Africans had held a theory of law and government similar to that of Albert Venn Dicey. The fact that these thoughts were not written is another inquiry altogether. In his words, Though the setting of African law might be exotic, its problems were those which are common to all systems of jurisprudence. Barotse courts are dominated by ideas of justice and equity. These ideas influence their total evaluation of evidence the Barotse believe that justice in this sense is self-evident to all men, and they call their principles within this justice, laws of God, or laws of humankind. That is the Barotse have a clear idea of natural justice, which they constantly apply. They apply natural justice, of course, within particular economic and social conditions…but it is natural justice. And natural justice involves for them, as for us, certain ultimate principles of law, as that a man who injures another shall make recompense no man should be a judge in his own suit…. 25