A Philosophical Defence of Punishment in Traditional African Legal Culture: The Yoruba Example
Balogun, Oladele Abiodun, The Journal of Pan African Studies (Online)
The paper attempts to provide a philosophical justification of punishment in Yoruba legal culture and argues that the institution of punishment is machinery for facilitating collective conscience of the Yoruba through frowning at impropriety of manners capable of being inimical to the developments of legal norms and disrupting the social equilibrium. Hence, the methodology adopted in the paper is analytical and critical and thus explores the tool of conceptual analysis in examining the nature of the philosophical problem of punishment within the framework of Yoruba legal culture. And with the aid of critical analysis, the paper argues, contrary to contemporary calls from humanitarian quarters for the abolition of punishment and that the institution of punishment in traditional Yoruba legal culture can be philosophically defended and justified. Therefore, the paper establishes that whatever its typology, punishment for the Yoruba is quite reformative, retributive and has deterrent effect as well as being instrumental to the dynamism of legal culture; and concludes with a caution note that if punishment were to fulfil its essences in contemporary societies, a cue must be taken from the traditional experience of Yoruba legal culture, where punishment enhanced the administration of justice as well as the social equilibrium.
The Yoruba constitute one of the major ethnic groups of modern Nigeria. They effectively occupy the whole of Ogun, Ondo, Oyo, Ekiti, Lagos, and a substantial part of Kwara State (Atanda 1980,1). Aside from Nigeria, the Yoruba are also found in sizeable numbers in the south eastern part of the republic of Benin,Togo,and Dahomey in West Africa, in West India and in South Africa. There is also a thriving Yoruba culture in South America and the Caribbean, especially Brazil and Cuba, where the descendants of the unwilling immigrants to the new world have been able to maintain their identity and preserve their cultural heritage(Gbadegesin 1991,174).While the Yoruba are dispersed throughout the world, this paper focuses on the Nigerian Yoruba. The reason for this choice is that the ancestral home of the Yoruba is in Nigeria and each of the Yoruba in the Diaspora still traces its origin to this home where the culture thrives best.
Yoruba culture is an amalgam of reality permeating all aspects of life, that is, pattern of living and habit of thought of the Yoruba. As a complex whole, Yoruba culture is a composition of knowledge, beliefs, art, moral, religion, customs, politics, technology, law and other living capabilities acquired by the individual as an indigenous member of the Yoruba race. As with other aspects of the culture, the legal arm is undoubtedly important to the dynamism and vitality of the Yoruba culture as a whole. This legal aspect of the culture propels the drive of social engineering, peace and harmony. While its origin cannot be easily discovered, the fact remains that the Yoruba legal culture can be adequately situated within the realm of political governance. Hence, the Yoruba legal culture performs the dual function of peace-making and peace-keeping.
While the peace-making aspect of the legal culture centres on the legislation of indigenous laws towards the regulation of societal conduct that will engender a dynamic, peaceful and progressive political society, the peace-keeping is basically concerned with ensuring considerable conformity to the regulated rules through a cross examination of cases of defaulters of laws and disputes in order to sustain equitable justice and fair play. These two functional processes of the Yoruba legal culture are operational in Yoruba courts by the legal officials and the politically constituted authority. Peace-making is correspondingly identical to legislation, while peace-keeping is situated within the framework of arbitration and adjudication. Significantly, both are instrumental to the maintenance of es-spirit de corps among the Yoruba. …