African Journal of Legal Theory Volume 1, 2007

Editorial Some Law Jobs for African Philosophy

A significant aspect of understanding the culture of a people is appreciating how they engage with the concept of law and other jurisprudential notions. The way the role of law is characterised and what the functions of the legal enterprise are seen to be, is indicative of the cultural worldview of a society, making the law, to this extent, a form of cultural expression. Cultural expression here would not have to pertain to the communication of a defined and coherent pattern of thought and behaviour but may simply mean a depiction of the state of the cultural sphere in a society. It can be a picture of the cultural realm and mirror whatever tensions exist below the surface, doing so either in the form of a suggested resolution of these tensions or a conscious or unconscious endorsement of any cultural dysfunction arising from the existent problems. The role of philosophical exploration in this regard becomes to analyse the picture in order to see it clearly and understand it better for the resolution of any difficulties and to more effectively address the emergence of or continued existence of any cultural incoherence in the picture and the legal sustenance thereof. This first volume of the Journal has sought to foster this endeavour by showcasing in various ways, areas in which philosophical exercise in the African context can be useful in offering tools for conceptual analysis with the aim of seeing better the picture that the law projects and attempt at resolving some of the issues that arise from it. In Towards an African Concept of Law, Oladele Balogun highlights the conception problematic with relation to characterising the notion of law in African thinking and argues for a move away from any inordinate retention of received Western models in favour of conceptions that are more reflective of the African cultural terrain. This implies the perspective that a characteristic of the cultural picture that the law presently projects is one which is not adequately in tune with indigenous thinking and norms. Balogun shows how this creates certain problems that should be of philosophical concern and which can be abated where a more truly African conception replaces current constructions. Problematic however and understandably so, is how a more African character of law can be arrived at among other things, he suggests importing into legal adjudication the use of the practice of invoking indigenous gods, in this way Africanizing our law in the area of evidentiary procedure, thereby effecting a more widely and genuinely credible system of evidence

and the ascertainment of truth in law. This implies a somewhat procedural approach to importing Africanness into our legal systems, suggesting that the African characteristic may lie in the way we do things and not in more substantive forms, that is, in what we are. Though not unproblematic to contend, it can be argued that for the purposes of law, (because of its nature of being philosophically practical), it is practices and not abstract norms and values that are most relevant and useful in making the law more reflective of African indigenous cultures. Since the law can really be seen as a bundle of practices it can be argued that in importing indigenous African practices to the law or making the existent practices of law more African we can indigenize our legal systems. In Naming Struggles: African Ideologies and the Law, I explore a slightly different but similarly relevant focus in discussing as arising from certain ideologies that emerged during and after the colonial era, the importance of identifying the African essence (a relatively substantive alternative to Baloguns approach) and the possibility of utilizing this as an evaluative and transformatory tool for modern African legal systems. I show how it, in the conceptual interrelations between the significance of African identity, unity and the centrality of the communalist ethic is important for arriving at some form of authenticity as Wiredu would rightly argue is necessary in the development of African philosophical thought and I think no less so with relation to jurisprudential thinking. Though it could be seen as the case that as a relatively more substantive form of attempting at importing indigenous culture into the law it has the advantage of being identifiable and representative of an understanding of the core of a peoples culture, it could also appear to be, compared with more procedural routes, intangible and not as quickly effective in transforming a legal order. However, what perhaps could be most appropriate is the adoption of both approaches, substantive and procedural, in achieving a more culturally-reflective law and system of adjudication. The two approaches possess benefits along with limitations and a full awareness of how they can both be best used is what would be most beneficial in charting the required developments in our law. Substantive forms are not only useful in redirecting the development of a legal culture but are also essential in the process of self-definition that a society may be undergoing. In this regard, a substantive form and the process of identifying it become useful to African legal thinkers as well as philosophers of African identity in general. It is a way in which the development of legal thought can also be an insightful source to the wider African philosophical endeavour: in being a relatively more ideationally practical sphere for the experience and manifestation of issues of post-colonial African identity, it can offer certain insights that are gained from observing how some of the conceptual issues addressed in African philosophy are manifested in the area of law. The laws nature of being demonstrative in its structure and dynamics can make it a kind of philosophers observatory with relation to the issues. Also, the law strives to resolve the resulting conflicts more urgently because, by the nature of its operation, it has to. The practical consequences of any conflicts in conceptions of identity can be seen experienced on a day-to-day basis in the life of the law. The legal sphere due to this feature brings to the African identity discourse, a sense of urgency and practicality; it is a picture of examples of the nonresolution or unsuccessful resolution of the identity problematic as well as implied suggestions of ways of it can be handled. Although it is a relatively more substructural expression of the identity issues, the law can be helpful to the enterprise by, among other things, showcasing possible reasoned resolutions of conflicts in practice and facilitate a positive movement in societal consciousness occasioned by the hopefully healthy way in which a modern African institution (in this case the law)

is dealing with the interaction between foreign and indigenous cultures in its sphere of activity. The law is also this kind of picture it is one of the sources of a peoples perception of how and in what direction their society is trying to redefine itself in the context of its present past and desired future. This is true for African jurisprudence as a whole and for any of its subsumed parts as we in Idowu Williams paper Between the Ebi and the Iwa Concepts: The Theoretical Foundation of Yoruba Jurisprudence where he discusses the Ebi and Iwa concepts as competing theoretical foundations for Yoruba jurisprudential thinking showing that within African jurisprudence there are also necessary particularist jurisprudential projects that assist in the development of a general African jurisprudence, further emphasizing the need for and significance of particularist thinking in any jurisprudential context. In this regard, the view can be ventured that African jurisprudence is really and can only be the congregation of jurisprudential thinking arising from the many Africas and exists only to this extent, raising the need to justify the use of the phrase African jurisprudence as signifying a homogenous and coordinated single whole affirming the same features. This being clearly so or not, the term African jurisprudence is used to represent an emerging space in which the many patterns of thought on law arising from African societies can exist unsubsumed in any presumed hegemonic universality of jurisprudential thinking. Unseeming but significant in fostering this emerging space is the form that legal education should take in societies that are in the process of redefining themselves or are faced with what can be seen as an identity mismatch reflected in, among other areas, the structure and content of the law. On the significance of legal education in Yoruba culture, John Ayotunde Isola Bewajis paper Aspects of Legal Education and Socio-political Order in Indigenous Yoruba Society highlights features of the educational system that sustained the ancient Yoruba kingdom calling for the need to attempt at recapturing some of its essence and method, the substantial absence of which he argues is at the root of moral disintegration in modern Yoruba and Nigerian society. Prof. Bewaji shows how members of the ancient Yoruba societies were not only educated for the purpose of specialised professions but also and most importantly for living all-round fulfilling lives. He points out that in this regard and with relation to similar issues, modern African legal systems are not sensitive to African cultural ideas and reforming legal education can be a way of bridging the unfortunate but existent gap. What is significant about this line of thought is that it approaches issues from a bottom-up dimension rather than a surface-down substantive or procedural perspective. It draws the focus to how legal minds are trained to think in a way that is more cognisant of and relevant to the issues facing their societies rather than only focusing legal reform on structural institutional change. This represents an effective long-term approach which should be considered just as seriously as more relatively short-term remedies as we see in Eyinna S. Nwauches paper A Bill of Rights as the Basis of a Common Law in Pluralist Nigeria where he suggests a bill of rights for the Nigerian legal system, rightly arguing that Nigerian law should be a balanced incorporation of colonially-received English law, indigenous law and Islamic law, using as a theoretical foundation the body of fundamental human rights notions existent in the states constitution. Nwauche argues that the bill of rights would, among other things, address the impliedly denigrating treatment of customary law by the received law and bring both normative cultures to par thereby straightening out any discrepancies and resultantly allowing for the emergence of a more wholesome, effective and indigenously reflective singular legal system. Angling for resolution are certain issues - the possibility of streamlining on one conceptual platform the various

worldviews at the basis of the different legal cultures, the best form that such a conceptual platform would need to take and how to deal with the challenge of possible peripheral and foundational incompatibilities. Nwauches perspective suggests that the fundamental human rights corpus may be able to provide such a rallying point on which variously based legal traditions (which should as a starting point presumably be generally committed to preserving and enforcing the rights and dignities of persons), would concur to certain core principles. Haven said this, as can be seen in a number of cases, the cultures expressed in the systems approach, prioritize, interpret and apply the core principles of the fundamental human rights corpus in various ways and it is in these ways that the incompatibilities exist. So that though it is possible for two rational persons to agree, for instance, to the notion of the sanctity of human life, they may disagree as to how this is best expressed with relation to the death penalty, the right to terminate an unwanted pregnancy, euthanasia and other issues. However, it is not the main concern of the legal philosopher to try to ensure or strive for agreement in all such second-level issues but to foster in the law, a conducive, inclusive and non-denigratory atmosphere for the various possible expressions of any generally accepted principles of the human condition existent in a society to thrive unthreatened. In the African context, this lays upon him the added responsibility of unifying his society in this regard providing an inclusive legal system becomes not only about mitigating and reconciling differences in perspectives but also and most importantly about importing conceptual coherence for a renewed sense of identity that must emerge from a fragmented past. His role is to identify what aspects of the legal picture depicted need attention and where to look to gain insights and conceptual tools for the resolution of issues. The importance of the African philosophical endeavour in this cannot be overemphasized it furnishes us with the needed cultural resources, perspectives, tools, concepts and methodology that are indispensable in this exercise. If the law is to truly reflect the norms and values of the people it seeks to serve, it must take cognisance of the philosophical worldviews that permeate their world and work side-by-side with these in the development of thought and consciousness. As can be seen, what emerges similarly in both endeavours (that is, African law and African philosophy) is the identity problematic; philosophical investigation into the law in the African context uncovers what is really at issue at the foundation of the seemingly multifarious problems in the African jurisprudential sphere: the nature and development of African identity what it entails, the direction it should take and the dynamics of its reflection in significant societal institutions. It is hoped that this volume fosters thinking on these and related issues.

Nkiruka Ahiauzu General Editor