Multiculturalism, legal pluralism and the separability thesis: a postmodern critique of 'An African case for legal positivism'.

• Author: William, Idowu

1. Introduction: Understanding the Debate

   The debate over the nature and possibility of African jurisprudence, from a historical perspective, is a chequered one. That history, in certain terms, is reminiscent of the then, but no longer, controversial debate over the possibility of an African philosophy. (1) Evidently, the possibility of both jurisprudence and philosophy in Africa, sharing the view of Nkiriuka, centres primarily on the definition of the African self, its distinct features and the understanding of that self in the light of its intellectual components. (2) In her words, inquiries that explore African philosophy or African legal theory are "attempts to arrive at some sense of identity after colonialism." (3)

   Perspicuously, it follows that several attempts at pontificating what the nature of African jurisprudence or legal theory is, interpreting the mindset of Nkiriuka, belongs to what may be generally called postcolonial theory formation. (4) As a matter of fact, African postcolonial discourses, even though few in the area of legal theory, generally consist of questioning the legitimacy of the impression and content of imperial thought and its fascinating impact on the direction of living reality amongst the colonised.

   This, in a very relevant sense, not only explains the nature of thoughts on the possibility of African legal theory but equally explains why there is a gap in the literature on African legal theory. For Okafor, what was actually wrong with legal thought in Africa was that while practice actually existed, theory was inadvertently missing. Africans had laws, practiced laws, so to say, but never had a theoretical understanding of the sophisticated sets of laws that were in practice. His basic justification for this view, influenced by Sir James Marshall, (5) consisted in what he regarded as the absence of codified rules of law, given that it was not until the late 1960s that the articulation of the ideas that are embodied in the various African practices and patterns of life took off with the publication of Bantu Philosophy. (6)

   Retrospectively, four distinct stages are discernible in the historical quest for this aspect of the African philosophy of society. In the first instance, there are those who contend that there is no such thing as African jurisprudence or legal theory. (7) This may be termed the sceptical school. The contents and constituents of that scepticism have, of course, by now been transcended. The influence and legacy of colonialism in the framing of that assertion cannot be overemphasised. This brand of scepticism may have formed one of the several reasons why the 37th Volume, the 2006 edition, of the Cambrian Law Review was devoted to exploring the possibility of African legal theory.

   Secondly, there are scholars who are of the opinion that what represents the heart of African jurisprudence is indiscernible but at best represents a combination of customs and conventions which are clearly below the level of critical ratiocination. (8) This school may, for the purpose of neat classification, be referred to as proponents of ethno-jurisprudence in Africa. The impression here is that what may be said to be paraded in the annals of the history of Africa in terms of representations, categorisation of laws and the principles that underlie it are nothing but ethno cultural, religious and moral ideas. For this group, it is no wonder that morality or moral rules are the basic regulative stuff on which lives are administered, governed and, altogether, directed in most African communities. Given the frame of ethno-jurisprudence existent in such societies, it is not a misnomer to interpret such a society as what Hart reputedly regarded as "a pre-legal society" (9) in which rules of citizen-obligation are entirely moral in nature. In the third place, there are those who attempt interpreting the nuances of African realities in light of existing thoughts and trends in mainstream, western jurisprudence. (10) For want of a better name, this school can be categorised as the Universalists with the supreme contention that jurisprudence is the same globally and in the universal sense. It posits that there are no cultural interventions and entries in the nature and consideration of jurisprudence. Theories and concepts are formed from a general, universal experience and any claim to cultural uniqueness distorts the essential character of that conceptual attribute. This group concludes that any culture whose legal frame does not conform to that general attribute is less deserving of the name jurisprudence.

   The opinion of the fourth group of scholars and thinkers on the nature of African jurisprudence is of particular interest. For this group, there exists an African jurisprudence i.e. a set of ideas about, concerning and around law which is basically developed from experiences peculiar to Africa. (11) Even though controversies abound among these scholars over what is exactly meant by 'experiences peculiar to Africa', it is believed that those controversies centre on different interpretations of what is implied when the African worldview is subjected to critical analysis. This group may be called proponents of the possibility and actuality of African legal theory--alternatively it will not be out of place to tag this school of thought as both optimists and culturalists. Reading Nkiriuka's paper, one is inclined to brand her as an African Cultural Optimist. For her, "to think of the concept of law as anything other than universal is to misunderstand its nature. However, our argument is not that the concept of law itself is particularist but that it is subject to particularist characterisations and the characterisations that we currently have are fundamentally Western and do not represent the whole of the socio-cultural experiences of Africans." (12) In focusing on the problem of legal pluralism in nation-states of Africa, the concern of this paper is critically located within the third perspective, the Universalist school: those who attempt to give an intellectual representation of African jurisprudence by interpreting its nuances and nature in the light of existing conceptual prisms and trends in mainstream jurisprudence. These scholars are of the view that African Jurisprudence is not too different from mainstream Western Jurisprudence, hence the question whether there exists a separate sphere of thinking of legal theorisation called 'African Jurisprudence. appears unnecessary and pointless. The grand objective of this third position has always been to interpret and apply the nuances of schools of thought in mainstream jurisprudence such as positivism, naturalism, postmodernism, realism etc as not only reflective of Anglo-Saxon jurisprudence but also reflective of African philosophy of society and the African legal tradition.

   More precisely, within this tradition can be discerned the attempt to make a case for the adoption of legal positivism as a legal doctrine, ideology and framework for Africa's fledgling legal systems. Legal positivism and the endorsement of the Separability thesis--i.e. the separation, conceptually, between law and morality--is perhaps the best antidote to the fledgling nature of African legal systems considered from the point of view of multiculturalism and pluralism. From this perspective, nations-states in Africa, by adopting legal Positivists. Separability thesis as the philosophical, ideological and jurisprudential basis of law despite the plurality of customary laws that exist within the state, practically, are stemming the tide of pluralism.

   The dilemma inherent in legal pluralism has to do with the attitude of individuals and groups in these cultural normative spaces in relation to legal systems sanctioned by the state. This dilemma creates complex challenges that demand a better understanding not only of the normative social spaces or legal orders themselves but also of how individuals and sub-groups inhabit and navigate through them. More than this, however, what is inviting for serious critical scrutiny is the philosophical justification and basis for managing the complex challenges and the dilemma they pose for the African legal system. This, among others, is the concern of this paper.

   The question is in what ways can it be said that legal positivism is suitable for African legal systems? What, actually, are the limits of legal positivism with respect to the dynamics of plurality of laws and legal structures in African society? What is the implication, for legal positivism, where individuals and groups in nation-states in Africa tend to give primacy to laws, legal structures and systems that tend to conflict with state laws, legal structures and systems? In articles published in the International Philosophical Quarterly in the mid-eighties, Okafor, Taiwo and Nwakeze all contended that legal positivism is a bad legal theory for African legal system. Against this view, Jare Oladosu, in a thought provoking paper, contended that the premises and arguments of these scholars were flawed, claiming instead that an African case can be made for the adoption of legal positivism on cultural grounds, that is, bearing in mind the multicultural and pluri-ethnic nature of African societies and countries. (13)

   Reflecting a strong appeal to the fact of multiculturalism in Africa, the importance of that paper consists in what the author considers to be the merit of legal positivism in the face of the heterogeneity, pluralism and multiculturalism of the African continent. The beauty of legal positivism for Africa, the reasoning goes, consists in the fact that it alone subscribes to the thesis that law and morality be separated conceptually which is what African legal systems actually need.

   The present paper is a critical assessment of the ground or advocating the adoption of legal positivism for African legal systems. The assumption in Oladosu's paper is that...