Multiculturalism, Legal Pluralism and the Separability Thesis: A Postmodern Critique of 'An African Case for Legal Positivism'

Article excerpt

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. …