Myth 7: The Political (Institutional) Basis of African Law (Jurisprudence) is Non- Democratic The next myth with respect to African jurisprudential thoughts concerns the misconception in some quarters that the traditional political institutions on which the African conception of law was based were, strictly speaking, authoritarian, despotic and nondemocratic. To this end, it is believed, African jurisprudential thoughts were based on an essentially flawed character a nondemocratic foundation. Putin another form, the argument on which this myth about African law is based simply states that governance under the traditional societies in Africa was at best characterised by the despotic will of
EnterText 4.2 William Idowu: African Philosophy of Law the chiefs and rulers. This despotic will, it is claimed, does not represent or reflect the true character of law but is a perversion of law. At the heart of this argument and myth, I believe, is a central debate in political sociology and emerging thoughts in African studies. It concerns the question whether African traditional systems were and are democratic. It is often argued by some scholars that the reason why democratic experimentations in African countries are not just fledgling but impracticable consists in the fact that traditional African life and government has never been democratic. This viewpoint about African law and the African past is not only derogatory but also untrue. If there were any societies in the world that had the history of democracy and respect for the rights of the people and the collective, it is in Africa where every point is debated in an atmosphere of consensus and reconciliation. These are the two hallmarks of democracy in the world today. These ideas are and have always been the traditional and historical way of life of African people. According to Holleman, the role which all African legal systems play is basically reconciliatory. Again, as argued by Gluckman, a perceptive understanding of the conception of law among the Barotse shows the nature of government and governance in operation in Barotse land. According to Gluckman, the Barotse people define law as general ideas about justice, equity and fairness, equality, and truth, which they believe should inform governing and adjudicating and which they call laws of humankind or laws of God.” 52 In the same vein, the traditional Yoruba system of governance and administration is a replica of any sound democratic system of governance in the world even today. According to Oludare Olajubu, before the advent of the white man, Yoruba society had a
EnterText 4.2 William Idowu: African Philosophy of Law system of government that was complete and organised. The whole idea of government revolved around the person of the Oba, i.e. the king In fact, the Yoruba people had a clear and systematic way of dealing with despotism among its chief and rulers. One of such ways was the opening of calabash by the Ogboni fraternity, mentioned above. The act of opening the calabash speaks volumes about the nature of governance among the Yoruba people. In fact, it tells of the pitch of rejection and the vote of no-confidence passed against the king whose acts are found to contradict the agreed ethos and ethics of public and collective life. Only moments of despotism and highhandedness in governance and administration of the society compels the Ogboni society to resort to such actions. This is one of the institutional checks against the excesses of the ruler or king. Yoruba history is replete with dramatic instances of such institutional checks and balances. 54 This is what Elias meant when he wrote that African governments had evolved elaborate mechanisms for the control of the evolution of monarchical absolutism and political tyranny Elias further enthused that all these elaborate mechanisms, as well as the intangible but effective factor of public opinion serve to protect law and custom by controlling the arrogation of royal power As further emphasised by Bohannan, some of these elaborate mechanisms for the control of royal powers in Swaziland included the checks by the chiefs, councils and advisers, the Queen’s Mother’s court and generally the devolution of authority to the regional or local chiefs. 57 In the final analysis, participation of citizens, freedom of thought and public decision-making are major themes in African political history. Even though there were moments of tensions in which attempts were made to erode these salient ideas of public and collective life, nevertheless, the survival of those traditional institutions even in
EnterText 4.2 William Idowu: African Philosophy of Law modern times is evidence of the triumph of the African past. African jurisprudence, no doubt, shared and still shares part of that triumph. Myth 8: African Jurisprudence has no Literary or Philosophical Significance for General Jurisprudence This myth has along history. It is equally untrue in the light of the history of the world. Unfortunately, this myth has its foundation in the works of many great Western philosophers whose philosophical temperament have been coloured by racial prejudice. Of central interest is the racist thought of David Hume in the eighteenth century. Hume had contended very strongly in one of his classical works the denial of any item of great significance among the Negroes. In his words, I am apt to suspect the Negroes and in general all the other species of men for there are four or five different kinds) to be naturally inferior to the whites. There never was a civilized nation of any other complexion than white, nor even any individual eminent either inaction or speculation. No ingenious manufactures amongst them, no arts, no sciences….there are Negroe slaves dispersed allover EUROPE, of which none ever discovered any symptoms of ingenuity tho low people, without education, will start up amongst us, and distinguish themselves in every profession. In JAMAICA indeed they talk of one negroe as a man of parts and learning but ‘tis likely he is admired for very slender accomplishments, like a parrot, who speaks a few words plainly. 58 However, the obvious inconsistency in the thoughts of David Hume concerning human nature in general can be demonstrated by the fact that five years before he made the assertion above, Hume had written that human nature with respect to mental attitudes, cognitive abilities and dispositions knew no bounds or distinctions. In his words, It is universally acknowledged that there is a great uniformity among the actions of men, in all nations and ages, and that human nature remains still the same, in its principles and operations. The same motives always produce the same actions the same events follow the same causes.
EnterText 4.2 William Idowu: African Philosophy of Law Ambition, avarice, self-love, vanity, friendship, generosity, public spirit these passions, mixed in various degrees, and distributed through society, have been, from the beginning of the world, and still are, the source of all the actions and enterprises, which have ever been observed among mankind. Would you know the sentiments, inclinations, and course of life of the Greeks and Romans Study well the temper and actions of the French and English. 59 It is to be noted that Hume became an infamous proponent of philosophical racism when the slave trade was going in England and his racial outbursts at that time were used by racists to justify the slave trade. What is of interest and curious to us is that Hume’s philosophical racism and the very basis on which it stands are at variance to his avowed principles of empiricism which are experience and observation. In fact as argued by Eric Morton, Hume’s views about Africans and Asians had no empirical foundation. In Morton’s words, Hume’s notions about Africa and Africans, Indians and Asians were not based on factual, empirical information which he had gained by experience and observation No, his empirical methodology did not fail him nor did he fail it. The issue is that he never had an empirical methodology to explain racial and cultural differences inhuman nature. He only pretended that he had. I argue that the purpose of his racial law was not one of knowledge, but one of justification for power and domination by some over others. 60 Apart from this, emerging facts from the African continent disprove Hume’s claims that there never was any individual eminent either inaction or speculation A careful understanding of the history of Egypt disproves Hume’s claims. What is more, Ethiopian philosophy of the seventeenth century provides an excellent critique of Hume’s opinion about Africa. Since the publication of Plato’s Republic, it is said that the interests of philosophers have necessarily been drawn to the light. Ethiopian philosophy presents a remarkable show of light in the speculative thoughts of two of its ablest philosophers,
EnterText 4.2 William Idowu: African Philosophy of Law 83 Zera Yacob (1599-1692) and his disciple, Walda Heywat. According to Claude Sumner, when at long last, after three centuries of quasi-oblivion, it became aware of the great light that was Zera Yacob the philosopher, it left in the dark his disciple Walda Heywat. And when the continent of Africa, nay the world at large, discovered in Zera Yacob a rationalist freethinker, the glow of enlightenment in the shadows of the African past, it opened its arms to the original master, and left the disciple amidst the embers of the night. 61 In the area of jurisprudence and philosophy of law, African ideas about law effectively combined with Islamic jurisprudence to produce not just an excellent body of juristic thoughts but refined, reformulated, homegrown, indigenous thoughts on law. According to Appiah, Muslims have along history of philosophical writing, much of it written in Africa Ina further search for the light in the African past, Souleymane Bachir has provided scintillating examples of African scholars, beyond the prejudice of the ethnological paradigm eminent inaction and speculation, contrary to the racial thoughts of Hume, in the areas of logic, jurisprudence and political philosophy One outstanding example is that of Ahmed Baba, who belonged to the ulama (school of learned scholars) and who hailed from the Bilad as-Sudan, i.e. the Black people’s land Ahmed Baba was reputed to have had 1600 volumes which constituted his personal library, and to have given an uncountable number of public lectures and innumerable commentaries on jurisprudence, politics and religious rights. 65 But then, Hume is not alone in this long tradition of philosophical racism. The same can be said of the German philosopher, G. W. F. Hegel, as stated above. Hegel’s philosophical racism was notorious. The pertinent question is why is there so little, if any,
EnterText 4.2 William Idowu: African Philosophy of Law respect for and, as a consequence, interest in African phenomena and their philosophical resonances The answer to the question should not consist in the notion that Africa holds no promising philosophical itinerary nor should it consist in the view that philosophy itself is not interested in what Africans think, say or do. These explanations do not portray the heart of the matter. Imbued in the peculiar absence of African phenomena from the field of philosophy, and implicitly, in the area of jurisprudence, is the politics of social history. In Olufemi Taiwo’s language, the peculiar absence of Africa from the tradition of Western philosophy and jurisprudence lies in the chilling presence of Hegel’s ghost and in the continued reverence of that ghost by the descendants of Hegel. In Taiwo’s words, I submit that one source for the birth certificate of this false universal is to be found in Georg Wilhelm Friedrich Hegel’s The Philosophy of History. The ghost of Hegel dominates the hallways, institutions, syllabi, instructional practices, and journals of Euro-American philosophy. The chilling presence of this ghost can be observed in the eloquent absences as well as the subtle and not-so-subtle exclusions in the philosophical exertions of Hegel’s descendants. The absences and exclusions are to be seen in the repeated association of Africa with the pervasiveness of immediacy, a very Hegelian idea if there be any. 66 This can be validated in the writings and submissions of Hegel about Africa. According to Hegel the central ideas of universality and rationality do not exist in Africa what exists is Africa’s and Africans attachment to nature which is at best an astounding display of the absence of the quality of universality and rationality. One of the promising markers of universality, according to Hegel’s narrative, is the possession of transcendence. One way of describing this is what can be referred to as the unacknowledged African being courtesy of Hegel. Because the African lacks being, he is denied any significant achievement in world history.
EnterText 4.2 William Idowu: African Philosophy of Law This explains why no accurate representation is given of Africa in the areas of ethics, law, metaphysics and epistemology. Africa’s and Africans contribution to areas of knowledge production such as anthropology or political science have in recent times being consigned to what is dubiously called African Studies Even then, the metaphysic or the ontology of difference between the supreme West and Africa is often trumpeted. Also worrisome is the view that even where it is glaringly obvious that African scholars are at home with some of the aching questions in the field of justice, or immortality of the soul, or philosophy, their answers are often despised as having no philosophical relevance. Taiwo’s language is pungent in its apt capture of the lamentation of the African mind. According to Taiwo, All too often, when African scholars answer philosophy’s questions, they are called upon to justify their claim to philosophical status. And when this status is grudgingly conferred, their theories are consigned to serving as appendices to the main discussions dominated by the perorations of the Western Tradition.” 67 Having succeeded in banishing the African reality, possibility and past from the rest of the world, the sum of Hegel’s conclusion about Africa can be pictured in the terse but profound statement that Africa falls short of the glory of man. Hegel’s conclusion in this respect is disturbing. He says, From these various traits it is manifest that want of self-control distinguishes the character of the Negroes. This condition is capable of no development or culture, and as we see them at this day, such have they always been. The only essential connection that has existed and continued between the Negroes and the Europeans is that of slavery ... 68 In significant senses, therefore, Humean and Hegelian notions and prejudice about Africa are not founded on anything empirically true—not on observation, experience or empirical history—but derive their connection from the issue of slavery and the distorted
EnterText 4.2 William Idowu: African Philosophy of Law interpretations of history. Significantly, the history of slavery in relation to Africa is not a product of the un-humanity, man-less-ness and irrationality of the African mind or psyche but of the history of what Morton tags our dependence on and dominance by others Dependence and dominance, in their full import, do not contribute to the making of authentic interpretation of Africa’s participation in history. Factors Responsible for the Mythic Representations of African Jurisprudence There are at least two sets of factors that can be generally adduced in any meaningful, scholarly work, as having contributed to the mythical representation of African legal theory in general jurisprudence and legal scholarship. The first derives from the alleged question or fact of ignorance about the ability of the African to ratiocinate and thus engage in conceptualising the notions of law, or any other subject of intellectual endeavour, for that matter. The second stems from what is often regarded as the absence of any written work of intellectual worth. Probably the best capture of the heart of these two factors is that proffered by TO. Elias and AA. Allot. For both scholars, the myth about African legal theory is of persistent interest due to the factor of ignorance in the first instance and the problem of written records. According to Allot, for instance, prevailing and pervading myths about African jurisprudence stem from the opinion of ignorance by outsiders who lack sympathy and knowledge In his words, Some deny the character of law to Africa altogether others declare that, if there were legal rules in African societies, those rules and their administration are or were characterised and dominated by belief in magic and the supernatural bloodthirstiness and cruelty, rigidity and automation, and an absence of broader sentiments of justice and equity. 71
EnterText 4.2 William Idowu: African Philosophy of Law For Allot, these expressions of ignorance about African law have been partial for two reasons in the first instance, such accounts only tell part of the story and secondly, their expression concerning these sets of laws apparently have been coloured by one form of prejudice or bias or the other, whether consciously or unconsciously. 72 On his part, Elias attributes the ignorance, and hence, the mythical colouring of African legal theory to three factors the predominance of missionaries in the field of education in Africa the aping of western mentors by educated African elites concerning their own societies and their place in it and the absence of political consciousness, pride of ancestry and cultural heritage on the part of the African But then, to be ignorant of an entity does not preclude the existence of that thing nor does it deny it vitality or the substance that it has. More precise, however, is the view that the recourse to ignorance as a factor responsible for the myths of African legal theory does not capture the force of its absence. As a matter of fact, the display of ignorance about African realities projects more than the absence of knowledge about Africans and their worldview. Our feeling is that ignorance is not alone in this task. It has a connection and counterpart in the projection of ideological and cultural superiority that, for us, is aptly traceable to the kind of historiography to which Western jurisprudence subscribes. But then, analysis must go beyond this. Clearly related to the above is the issue of the absence of written records about African legal realities. Elias sums it up in the following observation. According to him, the absence of writing has therefore deprived the Africans of the opportunities for recording their thoughts and actions in the same systematic and continuous way as have men of other continents Interestingly, this
EnterText 4.2 William Idowu: African Philosophy of Law factor has commonly been appealed to in the denigration of not only African legal worldview but also philosophical reasoning. The question is, must a body of thoughts about law or any other field of human endeavour be written before a jurisprudential or philosophical nature can be ascribed to it However, the peculiarity and absurdity of this argument can be located in the terse but profound statement that to be able to theorise, conceptualise and philosophise on problems of life is one thing and to have written down such reflective thinking and postulations is another matter entirely. The absence of the former does not preclude the latter and conversely, the absence of the latter equally does not preclude the presence of the former. Each stands as anatomic and independent truth and fact on its own. Conclusion: The Future of African Philosophy of Law The problem of the twentieth century, as William DuBois conceived it is the problem of the colour line—the relation of the darker to the lighter races of man in Asia and Africa, in America and the Islands of the Sea Beneath Western historiography is the attempt to depersonalise and dehumanise the identity of the African. One of the methods by which this project has been pursued is the subjection of philosophical ideas and doctrines to the prevailing sociopolitical and economic conditions which characterise the age in which they were invented. This is no doubt true in relation to the philosophical thoughts of David Hume and Hegel concerning Africa and Africans. Today, the task of constructing African scholarship in ethics, jurisprudence, philosophy and even politics through its history is not only challenging but made more intellectually stimulating given the wealth of analysis afforded by a growing community
EnterText 4.2 William Idowu: African Philosophy of Law of scholars in not only interrogating what is considered as anomalous but also in unearthing the facts about the African past. Inmost cases, the wrong perception of African jurisprudence, for instance, stems from a deliberate neglect and misunderstanding of the symbolic and practical logic of a community viewed from the normative perspective of the community concerned. Finally, the question is what is the future of African jurisprudence or philosophy of law This is important in the sense that one of the myths, apart from those treated above, on African law consists in its future or salience in the present world. One common feature of anthropological reports from the Weston the nature of African law is that those who have been found opposing the very tenets of African law often come to discover the untenability or outrageousness of their views, and end up qualifying what they said or simply negating it. It is in this sense we must understand the importance of the future of African jurisprudence. Ina very significant sense, many aspects of African jurisprudence have been subject to modifications and changes in the light of modernism, urbanism and industrialisation. Again, the dynamic growth of the modern nation-state formula has also contributed to the series of changes that African jurisprudence is undergoing. More than this, the fact that nation-states themselves are getting hooked up in the phenomena of globalisation as a result of the fact that there is change of locus of authority and claims away from nation-states to anew centre of authority, the global world order, is a telling argument that the future of African jurisprudence is being engaged in a form of historical and interpretive reconstruction.
EnterText 4.2 William Idowu: African Philosophy of Law However, as demonstrated in the preceding pages, African jurisprudence thrives on the idea of the moral solidarity of the community and the group that one belongs to. In effect, it is a demonstration of the sustained importance of the group which gives the art of law and its borrowed concepts some sociological flavour and considerations. This juxtaposes and contrasts favourably with the idealised notion of law today which sees law and its historiography as a neutral, value-free, objective and quasi-scientific entity, independent of, and unaffected by, social, moral and economic considerations As defended and defined by David Kairys, law is no neutral instrument inasmuch as it is part of a complex social totality in which it constitutes as well as is constituted, shapes as well as is shaped The tenets of African jurisprudence exemplify, to a significant degree, the heart of this truth. Transcending the boundaries between myth and reality with respect to African jurisprudence demands not only an intellectual and empirical refutation of historical prejudices but the incorporation of the practical approach reconciliation, consensus and cooperative advocacy) to judicial administration and management which it endorses in matters of law and justice.