Conceptually, what can Africa contribute to the world, and the history of ideas? More specifically, what has Africa contributed to the world? Some, like Hugh Trevor-Roper and Andrew Foote, would say, respectively, that it is pure darkness (1) or earth's catalogue of crimes. (2) The irony of this perception about Africa is obvious: Africa's light was tampered with, and deliberately distorted by those who cast it into the immediacy of eternal loss. Incidentally, this perception has become a pervading and phenomenal characterisation of Africa whose historical past bears the primacy of true human civilisation. (3)
This perception, in its entire ramification, is a grand historical distortion. Thus, the debate over the primacy of Occidentalism and Orientalism in the entire history of thought and thus a classical demonstration of the Eurocentric nature of social history in general, and particularly, how cultural distortions are often sponsored into the substance of intellectual history.
The project of Africa renaissance is an attempt to correct this distasteful perception about Africa. In precise terms, African philosophy, though a latecomer to the scene of philosophical interrogations of history and ideologies of African people is engulfed in the burden of a thematic and cultural search for self definition. The essential task of African philosophy in its half-century existence is the quest for pertinence in what can be called a search for the significance of its hidden history. The thematic and cultural preoccupation of the African philosophy project can be undertaken in the important, though neglected, discipline of jurisprudence. Thus, the implication of an African cultural jurisprudence cannot be overemphasised. What then is jurisprudence? What is its significance for the African philosophical project, and what are the contributions of Africa to jurisprudential controversies?
Generally characterised, it seems evident that jurisprudence and the discussion of its problems has a Eurocentric bias, often couched in the form of a denial. And thus, via Western canonical works, a great denial of the possibility of African jurisprudence often grounded in what I call the 'myth of meritocracy' which is the view that whatever is considered to be African does not have anything intellectually profound and thought-provoking to contribute to investigate aching and puzzling questions and problems in philosophy, generally, and jurisprudence, particularly. What this means is that there exists a fundamental lacuna in relation to the general treatment of fundamental jurisprudential problems within the canons of African jurisprudence; although, the cultural basis for jurisprudence is perceived as a misnomer when, in actual fact, philosophy itself is a cultural inquiry.
Taiwo's capture of this dilemma for Africa is poetic and pungent when he contended that "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" (4) To corroborate Taiwo's timely observation, jurisprudential problems such as the nature of law, the source and grounds of obligation, the nature of justice, the relation between law and morality, and a few others, have received less and insipid attention in Western literature in relationship to jurisprudence. Thus, it is this absence that often serves as the basis for the denial of African jurisprudence altogether. And equally worrisome is the view that the attempts by African legal scholars to contemplate on general jurisprudential problems have been essentially apologetic rather than contributory.
Jurisprudence is, at the utmost, at an abstract level, concerned with an articulation, analysis and critical inquiry into the nature, functions, aims and significance of law. Law, thus, is the central subject matter of jurisprudence. It is thus the putting into action the philosophical elements in the consideration of law. Jurisprudence can therefore be defined as the philosophical investigation into the metaphysical, logical, epistemological and the ethical dimension of law. And since it incorporates elements of critical philosophical thinking, it is not a misnomer to conclude that jurisprudence is not another enlightened, intellectual enterprise, but rather a philosophy of law.
And secondly, jurisprudence is also the placement of philosophy into effect and action in the consideration and understanding of law. And it is in this sense that most accounts of the nature of jurisprudence in the literature assume an iota of interchange between jurisprudence, legal theory, legal philosophy or the philosophy of law and what is assumed in all these interchangeable terms is the raising of fundamental questions with respect to the study of law.
Thus, classical and contemporary jurisprudence is inundated, enervated and saturated with bewildering sets of problems. Hence, some are of the view that the nature and intellectual trajectory of those problems are in consonance with the general nature of philosophy; and since philosophy is said, to be an instrument of change through generations which often create controversy. Yet, without controversies, philosophy loses its essence and salience. Thus, the jurisprudential problems of the nature of law, the relation between law and morality, the nature of justice are conceived purely from a philosophical point of view.
Conversely this paper is an attempt to conceptualise the challenges poised to jurisprudence from an African cultural perspective. In other words, the context of this challenge is interrogates the basic epistemological current underlying African jurisprudence. In doing this, I focus on the contributions of select scholars, within the context of African jurisprudence, in relation to the resilient subject matter of general jurisprudence concerning law and morality.
Correspondingly, I also specifically give attention to on the ideas of Gluckman, Okafor and Adewoye with a look at the strength and weaknesses of their position in an introductory so not to issue a final verdict on their views, although along the way, it should be evident where my sympathies lie. Thus, the question is: based on the works of these scholars, how is African jurisprudence a challenge to the Eurocentric basis of jurisprudence? What intellectual contribution has African jurisprudence given to selected controversies in Western jurisprudence and jurisprudence in general? How and in what sense(s) can we qualify and quantify the place of African jurisprudence in the understanding of jurisprudential problems? What is the significance of African cultural jurisprudence to the separability-inseparability controversy in jurisprudence? And finally, in the relation between law and morality, what can we ferret from the tenets of African jurisprudence?
Significant approaches to the nature and definition of law necessitated the idea of distinct schools of thought in jurisprudence. Thus, if jurisprudential problems are conceptual in nature, then the search for the appropriate concepts describing the reality of law, it behoves us to conclude that differences between the schools of thought in jurisprudence are conceptually framed. Hence, what accounts for why the historical school of jurisprudence is different from positivism or realism could be the way concepts are formed, adopted and framed into the universe of law?
But then, it is interesting to know that concepts are not too innocent in the way they are used, and it is within the range of possibility that the concepts themselves are ideologically inclined such that their use is instrumental in nature. Therefore, if concepts and their usage create problems in jurisprudential discourse, it could be that what motivate controversies in jurisprudence are the ideological mindsets that underlie the concepts involved. And unlike the debate between rationalists and empiricists, in epistemology, which could be described as a family quarrel, (5) the intellectual controversies between the schools of thought in Western jurisprudence have involved much of the incredible instances of ideological antagonisms and passionate exchanges (6) which appear irreconcilable.
Again, it is not preposterous to contend that concepts are generated by experiences. Different experiences produce different concepts, and most concepts in jurisprudence have been produced, generated and created basically from experiences of social, moral and political life, philosophy of society that are Eurocentric in nature and substance. The same is reflected in the hordes of debates on the separability-inseparability controversies that can be said to be Eurocentric in nature meaning that, significantly, the dimension of the content of that debate centres on the way the relationship between law and morality has been viewed. It therefore follows that what jurisprudence has been fed with consist largely of debates informed by Eurocentric experiences.
The Eurocentric flavour of the separability-inseparability controversy suggests that both legal positivism and legal naturalism and their respective views on the relation between law and morality have been essentially distilled from the perspective and experiences of Europe. Legal positivism as a major school of thought in jurisprudence concentrates on the provision of not just an abstract theory of law but also one which can be regarded entirely as containing veritable elements of a pure science of law. (7) Ronald Dworkin once described legal positivism as the ruling theory of law. (8) Its importance in jurisprudence equals the historical jurisprudential importance of the school of legal naturalism which, going by the last two thousand five hundred years, has witnessed three significant phases, with...