Notes 1 Chandra T. Mohanty, Under Western Eyes Feminist Scholarship and Colonial Discourses in Chandra Mohanty et al., eds Third World Women and the Politics of Feminism (Bloomington: Indiana University Press, 1984/1997), 71. 2 Hugh Trevor-Roper, Rise of Christian Europe (London Thames and Hudson, 1964), 9. 3 AH. Foote, Africa and the American Flag (New York, 1854), 207. 4 See Theophile Obenga, Egypt Ancient History of African Philosophy in Kwasi Wiredu, ed., A Companion to African Philosophy (Malden, MA Blackwell Publishing, 2004), 31. 5 Eminent historians, commentators and classical texts consider Origen to bean African. See J. JIG. Dollinger, History of the Church, trans. Rev. Edward Cox (London C. Dolman and T. Jones Publishers, 1840), ff. 6 From antiquity, North Africa had been home to many indigenous African peoples such as the Berbers. The African root of these thinkers had been traced to the singular fact that they were Berbers living in North Africa which was a playground of both Roman imperial politics and Greek intellectual traditions. See John Ferguson, Aspects of Early Christianity in North Africa in Lloyd A. Thompson and J.
EnterText 4.2 William Idowu: African Philosophy of Law Ferguson, eds, Africa in Classical Antiquity, Nine Studies (Ibadan, Nigeria Ibadan University Press, 1969), 184. 7 DA. Masolo, African Philosophers in the Graeco-Roman Era in Wiredu, 62. 8 G. W. F. Hegel, The Philosophy of History, trans. J. Sibree (New York Dover, 1956), 91. 9 Ibid, 99. 10 Obenga, 32. 11 Ibid, 32-33. 12 William Idowu, Social History, African Idenity and the Memory Theory (The Anthropologist 5.4), 244. 13 I. M. Lewis, Tribal Society in Encyclopaedia of the Social Sciences (New York Macmillan and Free Press, 1968), 150. 14 J. H. Driberg, The African Conception of Law (Journal of the African Society 34, 1934), 237-38. 15 RT. Paget, The Observer, July 8, 1951. 16 MG. Smith, The Sociological Framework of Law, Chapter 2, Kuper and Kuper, 1965. 17 KM Baye, The African Conception of Law in The Legal Systems of the World and their Common Comparison and Unification, International Association of Legal Science Vol. II, 1975. 18 Ibid, 139-140. 19 ES. Hartland, Primitive Law, 1924, 5-6. 20 MA. Dlamini, African Legal Philosophy A Southern African View (Journal for Juridical Science 22.2, 1997), 72. 21 Teslim Elias, The Nature of African Customary Law (Manchester, 1956), 33. 22 Adegboyega Sobande, “Eewo” in Oludare Olajubu, ed, Iwe Asa Ibile Yoruba (Ikeja: Longman Nigeria, 1978), 23. 23 Cf. Robert P. George, What Is Law A Century of Arguments (First Things, Journal of Religion and Public Life, 112, 2001), 23-29, www.FirstThings.com 24 Indeed, arguments on the nature of law in jurisprudence are endless. The positions of the schools of thought in jurisprudence on the nature of law are irreconcilable and conflicting. The respective schools of thought are the Positivist, the Naturalist, the Realist, the Pure Theory of Law, the Historical and Anthropological School of Jurisprudence, the Sociological School of Jurisprudence, the Marxist, the Critical Realist Movement, the Feminist, the Postmodernist etc. One can also add the hitherto uncharted field of African legal theory. Within each of these respective schools, a careful student of jurisprudence can discern diverse opinions and positions. For example, in Positivist jurisprudence one can find the classical legal positivism and normative positivism. And what is more, positivist separability thesis attracts the inclusive thesis and the exclusive thesis with a few fundamental differences. Again, within Naturalist jurisprudence can be found diverse traditions such as the Thomist tradition, Fuller’s naturalism and a basic restatement by John Finnis. The same holds for Realism where the American statement of realism is different from Scandinavian realism. The list of irreconcilable theses in each of these schools of thought is endless. It is in the light of these varying positions that the student of jurisprudence can conclude that legal philosophy is replete with both ideological and idle arguments on the nature of law. 25 Max Gluckman, Order and Rebellion in Tribal Africa (London Cohen and West, 1963), 178, 197. 26 Max Gluckman, Natural Justice in African Law in C. Varga, ed, Legal Cultures, 1992, 176. 27 Driberg, 231. 28 M’Baye, 138. 29 Ibid, 139. 30 Ibid, 143. 31 Ibid, 144. 32 Dlamini, 80. 33 Quoted in Basil Davidson’s The African Genius, 71. 34 Henry Odera Oruka, Sagacity in African Philosophy in Tsenay Serequeberhan, ed, African Philosophy: The Essential Readings (New York Paragon House, 1991). 35 John Mbiti, African Religions and Philosophy, 209. 36 EA. Ruch and CK. Anyanwu, African Philosophy (Rome, 1984), 375. 37 CK. Anyanwu, African Political Doctrine in Ruch and Anyanwu, 375. 38 Ibid, 371. 39 CC. Roberts, Tangled Justice, quoted in Elias, The Nature of African Customary Law, 63.
EnterText 4.2 William Idowu: African Philosophy of Law 92 40 Essentially, the Ogboni institution is a secret group. No one, except members, can really know the depth of its practices. But then, its influence in Yoruba societal life is not a secret. In fact, the Ogbonis are more or less, the lawmakers in the respective Yoruba community they have found themselves. This is because, in traditional Yoruba society, the Ogboni is the body of all the elders in the community. According to Daramola and Jeje, in the traditional Yoruba community, there is no observed difference between the members of Ogboni and the council of elders. In the more factually relevant sense, it is the members of Ogboni that becomes members of the council of chiefs or elders in the land (Olu Daramola and A. Jeje Asa ati Awon Orisa Ile Yoruba, Ibadan Onibonoje Press, 1970, 160.) From this it is decipherable that they wield utmost constitutional powers both in the religious sense and then in the judicial/political senses. To this end, they can be described as a group with integrated social, political and legal influences. The overall dominance and prominence of the Ogboni institution seem to have been derived from two closely interconnected sources in the first instance, they control the political life of their community and secondly, they possess the power of the sanctions of the gods. The fusion of both sources of power has elevated them to the status of the most dreaded institution in Yorubaland. This is captured in the observation of Robert Smith that the Ogboni group is devoted to the worship of the earth, which wielded both religious and political sanctions. They alone, according to Smith, control the Byzantine Quality characteristic of traditional Yoruba system of government, which effectively means, in the language of Smith, the fusion of political, judicial, and religious concepts and the division of responsibilities (Robert Smith, quoted in Roland Hallgren, The Good Things of Life, Loberod: Plus Ultra, 1988, 64.) 41 Daramola and Jeje, 160. The present writer’s translation from Yoruba to English. 42 Tradition, as used here, describes the rules and regulations of that society. These regulations, though largely unwritten, are not mere human pronouncements as the living dead (ancestors) are the ultimate executors of the regulations. See Anthony Echekwube, Traditional Social Institutions and Human Rights Promotion in Nigeria (Enwisdomization Journal 2.1, 2002-2003), 29. 43 Bertrand Russell, Why I am not a Christian (New York George Allen and Unwin, 1957), 22. 44 GM. B. Whitfield, South African Native Law, 1948. 45 M’Baye, 148. 46 Max Gluckman, Order and Rebellion in Tribal Africa, 192. 47 Elias, 61. 48 F. U. Okafor, Legal Positivism and the African Legal Tradition (International Philosophical Quarterly 24.2, Issue 94, 1984), 157-164. 49 Olufemi Taiwo, Legal Positivism and the African Legal Tradition A Reply (International Philosophical Quarterly 25.2, Issue 98, 1985), 198. 50 Ibid, 198. 51 PC. Nwakeze, A Critique of Olufemi Taiwo’s Criticism of Legal Positivism and African Legal Tradition (International Philosophical Quarterly 27.1, Issue 105, 1987), 101. 52 Max Gluckman, The Ideas in Barotse Jurisprudence (New Haven Yale University Press, 1965), 20. 53 Oludare Olajubu, “Ijoba Ibile laye Atijo” in Oludare Olajubu, ed, Iwe Asa Ibile Yoruba (Ikeja: Longman Nigeria, 1978), 89. 54 According to Bolanle Awe, in the eighteenth century this kingdom was the scene of a series of conflicts in which power alternated between the Alaafin and his chiefs. The issues that sparked these conflicts have been differently interpreted by different historians whatever the issues were, they certainly represented the factors that engaged the attention of the ruler and his chiefs. Bolanle Awe, The Iyalode in the Traditional Yoruba Political System in Alice Schlegel, ed, Sexual Stratification A Cross Cultural View (Columbia: Columbia University Press, 1977), 149. Daramola and Jeje, above, have provided one of the reasons according to them, the conflict stems from the fact that the actions of the monarch are irreconcilable with the standard norms and expectations of the people. See Daramola and Jeje, Asa ati Awon Orisa Ile Yoruba Ibadan Onibonoje Press, 1970), 160 55 Elias, 18. 56 Ibid. 57 P. Bohannan, Africa and Africans (1964), 191. 58 David Hume, Philosophical Works, vol. 111, 228-229. 59 David Hume, An Inquiry Concerning Human Understanding (Buffalo Prometheus Books, 1988), 77-78.
EnterText 4.2 William Idowu: African Philosophy of Law 93 60 Eric Morton, Eric, Race and Racism in the Works of David Hume ( Journal on African Philosophy 1, 2002) 1. 61 Claude Sumner, The Light and the Shadow Zera Yacob and Walda Heywat, Two Ethiopian Philosophers of the Seventeenth Century in Wiredu, 172. 62 Kwame Anthony Appiah, In My Father’s House Africa in the Philosophy of Culture (London Methuen, 1992), 144. 63 What is the ethnological paradigm in relation to Africa According to Souleymane, it consists in the view that what is authentically African is simply assumed to be what remains once you have removed all the deposits that history has left on the continent. See Souleymane Bachir Diagne, Precolonial African Philosophy in Arabic in Wiredu, 66. 64 Souleymane Bachir Diagne, Precolonial African Philosophy in Arabic in Wiredu, 68 65 Souleymane Bachir Diagne, 68-69. 66 Olufemi Taiwo, Exorcising Hegel’s Ghost Africa’s Challenge to Philosophy (African Studies Quarterly 1.4, 1998, http://www.clas.ufl.edu/africa/asq/legal.htm ) 67 Ibid. 68 Hegel, 98. 69 Morton, 1. 70 AA. Allot, Essays in African Law (London Butterworth, 1960), 55. 71 Ibid. 72 Ibid. 73 TO. Elias, Government and Politics in Africa (Manchester Manchester University Press, 1963). 74 Ibid, 21. 75 WEB. DuBois, The Conservation of Races in Albert Mosley, ed, African Philosophy Selected Readings (Englewood Cliffs, NJ Prentice Hall, 1995). 76 This is one of the features, and perhaps flaws, of legal positivism as formulated by H. LA. Hart. According to Hart, Legal Positivism can be defined as the contention that the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, functions or otherwise Furthermore, Hart contended that positivism in jurisprudence is the contention that a legal system is a closed logical system in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies, moral standards See H. L. A.Hart, Positivism and the Separation of Law and Morals (Harvard Law Review 71.4, 1958), 601-602. This conception of positivism, apart from being one of the most contentious philosophical positions, has kept the whole of jurisprudence on an intellectual vigil. Obviously, the central theses of African law (jurisprudence) reflect an unmitigated rejection of this standpoint. 77 David Kairys, ed, The Politics Of Law (New York, 1982), 4.