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NAMING STRUGGLES: Af,.

RICAIY IDEOLOGIES AI\ID TIIE LAW

I\kiruka Ahiauzu
Theorizing about the law should draw from the socio-cultural worldview of the people it seeks to serve. It should take on a form that persons within the society are able to identify with and show relevance to areas in need of philosophical consideration with relation to the law. Although it is the case (and is to a large extent inevitable), that the modern legal system will not be free from foreign influences and trends,l the general nature of a legal system should mirror the core values of the society it seeks to support. This underscores the significance of a distinction between universals and particulars with relation to the characterisation of concepts and questions the exJent to which universalisation is possible without threatening the existence of particulars.2 With relation to a legal system, particulars would consist of what could be referred to as the fundamental notions that distinguish it culturally from other systems. ln this sense, 'particulars' would also include what is particular about that legal system. However, this is by no means the only possible understanding of the term with relation to the law. A conceptual particular may also have a normative character this is where certain presumed functions of law are implied in the world view of a people and even where such functions are not readily identifiable in the structure of a system (thereby easily distinguishing it from another), they emerge in the way that a people engage with and interact with the idea of law. The necessity of particulars therefore derives from the necessity of identity. This is the necessity of articulating the basis of distinguishing oneself as a separate entity and perhaps as one that requires a different model for analysis. The process of this articulation is in itself an indirect form of the conceptual cross-cultural dialogue3 which is the more preferable way that modern cultures should interact with each other. The existence of universals not only implies the existence of particulars, it also challenges the genuineness of presumed universals. It is in cross-cultural dialogue that such issues can be clarified and there could be right emphasis on the attributes that we share rather than those that distinguish us. In this regard, issues of identity have a communicative necessity, in that, in order to adequately communicate with others we have to know who are.a It
I

These may be historical or contemporary.

'Wiredu, K. Culturql Universals and Particulars: An African Experience.Indiana University


1996.
3

p.2

Press.

Bell develops the idea of cross-cultural dialogue quasi-comparative philosophical contexts in Bell, R. Understanding African Philosoplry: A Cross-cultural Approach to Classical and Contemporary Issues. Routledge. 2002. (Chapter 1: Understanding Another Culture). * This is, as will be seen, related to questions of authenticity with relation to philosophical thought. See Y{"dr, K' 'Philosophy and Arrthenti city' . Shibboleths: A Journal of Comparative Theory.2007. volume l, No. 2. p. 72. Also see Ahiauzu, N. 'Authenticity in Afriian Legal rhought,, pup.,

can however be argued that this knowledge (that is, the knowledge of the self), can be gotten iz communication and does not necessarily have to be attained prior to communication. Two competing conceptions of identity appear to be at issue here - a liberalist conception, where one constructs oneself and a more communitarian conception that finds the self embedded in the relationships that persons have. From either perspective, it is the case that communication is significant for issues of identity. It is at the same time, what creates identity and what identity is for. In communicating, one does not only communicate words, actions or beliefs, one also

communicates oneself; a more communalist interpretation being that in communicating, one discovers oneself. In this regard, part of the role of the legal thinker in the African context is to attempt at articulating conceptual tools that could be useful in satisfying the communicative necessity that exists in the area of law. This communicative necessity does not only, as in other areas of academic endeavour, exist outside the society but also within it. Many modem African societies contain laws received by virtue of colonisation along side pre-existing indigenous customs and practices.5 Needless to say, the interaction between both systems of legal regulation is far from problematic. The existence of both systems requires intercultural communication to exist within a single society as opposed to between societies. In either context, the African legal thinker is inevitably required to tackle the interaction of both cultures and the issues of identity that arise from it. The need arises to be conscious of the tensions that result from the problematic interaction of the two normative orders, (received and indigenous), that exist within his society as well as the influences, (legal and philosophical), that come in to his society. The culture's engagement with the Other in both contexts, though sometimes beneficial, highlights the importance of a clear and strong knowledge of the Self. This can be partly achieved by looking into our own philosophical world view with the aim of identifying any key aspects that define and are representative of who we are. These aspects can assist us in navigatingwho we should be withrelation to Iaw. The resources are also useful in designing agendas with relation to the form that philosophical engagement with the law in the African context should take. Relevant in this regard are certain theories that emerged mainly during the colonial and postcolonial period in the history of many African societies. These theories attempted to, among other things, encapsulate certain ideas that were considered fundamental to the African worldview. Though they were, in certain cases, mixed with political agendas and economic sentiments, they were taken to stem from the cultural consciousness of African peoples. The concepts we will be looking at in this paper arc ujamaa.6 black consciousness,T pan-Africanism,s consciencism,g negritudelo and ubuntu.rt They are
presented at the Department of Law & Criminology Inter-departmental Research Seminar series, Aberystwyth University. 10ft October, 2007. ' This has not been without interesting consequences, see Ekow Daniels, W.C. 'The Interaction of English Law with Customary Law in West Africa' The Internqtional and Comparative Laru Quarterly. 1964. Volume 13, No. 2. p. 574 and Bennett, T.W. 'Conflict of Laws: The Application of Customary Law and Common Law in Zimbabwe' The International and Comparative Law Quarterly.1981. Volume 30. No. 1 p. 59 u Nyerere, J.K. Ujanaa: Essays on Socialism. Oxford University Press. 1968. ' Biko, S.B. 'Black Consciousness and the Quest for a True Humanity' in The African Philosophy Reader. Edited by P.H. Coetzee and A.P.J. Roux. Second Edition. Routledge. 2003. p. 79. Also see Biko, S.B. I Write What I Like. Picador Africa. 2006. 8 Nkrumah, K. 'Towards African Unity' nAflica Must Unite.Henemann. 1963. p. 132. Also see Nyerere, N. 'The Nature and Requirements of African Unity' in Freedom and Unity. Oxford University Press. 1969. p. 334; Kaunda, K. 'Towards Unity in Africa' inA Humanist Africa. Longman. 1966. p.

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going to be discussed with the aim of uncovering possible insights that they might have and any pointers they can offer towards the development of general legal

thinking in the African context. My aim will take the form of an investigative analysis rather than a comparative discussion of the concepts because, in many ways as will be seen, the similarities of the theories far outweigh their differences, which are to a large extent stylistic (both substantively and structurally), and not significantly contradictory. Pan-Africanism, for instance, like black consciousness emphasizes the unity of the black experience and the importance of pride in one's identity as black, which notion is fundamental to negritude and taken further in the concept ofconsciencism in its focus onthe necessary reconstruction ofidentity after colonisation. We will see that key thinkers of the above theories also, in their work, allude to the communalist nature of African interaction and self-perception, which idea is more fully expressed in the concepts of ujamaa and ubuntu. The structure of the paper will therefore rather consist in discussing the theories under three main heads which will be proffered as three main insights emerging from the theories which are relevant for jurisprudential thinking in the African context. They are: (a) the centrality of the communalist ethic (b) the significance of African unity, and (c) the importance of African identity
As distinct as the three heads appear to be, they are not mutually exclusive but overlap in very insightful ways. Three possible forms of interrelation exist between the insights - a justificatory interrelation, a consequential interrelation and an explanatory interrelation. A justificatory interrelation arises where a particular insight is taken as justifying the other. An example of this would be where it is argued that articulating African identity is justified by the need for African unity. This is similar to but not the same as a consequential interrelation that sees an articulation of African identity as bringing about African unity or as in an explanatory inter:relation, regarding the expression of the communalist ethic in various contexts as explainedby the need for a reconstruction of African identity after colonisation. The differences are significant for methodological concerns and the issue of the identification of where the emphasis should lie in conceptual characterisations. Whichever form of interrelation is adopted as the most adequate will consequently imply certain beliefs not only about what the

See Nkrumah,K. Consciencism: Philosophy and ldeologtfor Decolonizationwith Particular Reference to the African Revolution. London. 1970. Also see McClendon, J.H. ,Nkrumah,s Consciencism as Philosophical Text: Matters of Confusion. Journal on African philosophy.2003. Issue 3. p. 1; Ahiauzu, N. 'Consciencism in Legal Theory?', paper presented at the 14ft Annual Conference of the International Society for African Philosophy and Studies, Ghana. 3l't March-4th April, 200g. r0 A useful concise development of the concepican be found in Senghor, L.S. 'What is N:egritude?, in Readings in African Political Thought. Edited by G.M. Mutiso and S.W. Rohio. 1975. Heinemann. p. 83. Also see Senghor, L.S. 'Negritude and African Socialism' St. Anthony's Papers (Number l5). Edited by K. Kirkwood. Oxford University Press. 1963. p. 16; Irele, A. 'Negritude: Literature and Ideology' in The African Philosophy Reader. Edited by P.H. Coetzee and A.P.J. Roux. Routledge. 2003. p. 35; Mosley, A. 'Negritude, Nationalism and Nativism: Racists or Racialists?' n Africin Philosophy: Selected Readings.Editedby A. Mosley. prentice Hall. 1995. p.216; Soyinka, W. 'Negritude and the Gods of Equity' in The African Philosoplry Reader. Edited by p.H. Coetzee and A.P.J. Roux. Routledge. 2003. p.230 " For an interesting philosophical development of the concept see Shutte, A. (Jbuntu: An Ethicfor a New South Afiica. Cluster Publications. 200 1 . Also see Krog, A. Counfiy of My Skult. Jonathan Cape Publishers. 1998; Tutu, D. No Future l(ithout Forgiveness. Rider. 1999

African legal thinker should regard as most important in his work but also about what is at stake in the jurisprudential endeavour in the African context.

The Centrality of the Communalist Ethic


The term 'communalist ethic' has been used to represent the strong sense of community that is existent ip many African cultures.l2 In the context of morality, it is an approach to normativityl3 that adopts the interconnectedness of persons as the basis for determining ethical matters. Wiredu describes it as the 'adjustment of the interests of the individual to the interests of the society'la rather than vice versa. Adjusting interests in this way brings about the situation of the community as the origin of ethical standards and norms. One of the implications of this is that the community exercises regulatory and governing functions over the activities of its members. It could also mean that, generally, members would share conceptions of the good and certain core values. It is not always the case, as could be suggested, that this results in a dictatorial form of socio-political structuring, although it could sometimes be the case. The necessary regulatory and governing functions are exercised in the context of an interconnectedness of persons and within communalist notions of selfperception. The communalist ethic can thus be understood in two strands - how it affects self-perception and how it determines the nature of interaction among persons. Interaction here would, in addition to social interaction, also include how social roles are determined and defined as to what they should constitute. The communalist ethic produces a conceptual closeness of roles, sometimes displacing of biological and legal boundaries. For instance, in the Ogba culture, like many African cultures, there is no directly corresponding word for the English term 'cousin.'ls Most languages simply extend the terms 'brother' or 'sister' to address persons who do not share direct biological ties. This conceptual extension has the social effect of closing the gap created by any biological restrictions and conceptually enlarges the family structure notion with the effect that the community becomes something of a macro-family.t6 The communalist ethic promotes the notion of everyone being 'one of us,l7 and the unapologetic acceptance of difference. Difference implies division and this contradicts notions of consensus that emanate from the communalist thesis.ls Consensus here would not mean a forced agreement but as Shutte says of the
an exposition of the communalist ethic see Wiredu, Kwasi. Cultural (Jniversals and particulars: An African Experience. Indiana University Press. 1996. p. 71 13 By normativity here I mean any profferld foundation for the 'obligatory-ness' of action. Wiredu also refers to it as a moral outlook. Wiredu, K. Cultural (Jniversals and Particulars: An African Experience.Indiana University Press. 1996. p. 71 ra wiredu, K. Cultural (Jniversals and Partiiulars: An African Experience.Indiana University press. 1996. p.7t " Ahiauzu, B. and ochogba, o. Ka Ye su olu ogba. 2003. Springfield publishers. pp. 2-5. See g.enerally, Ellah, F. I. Ali Ogba: A History of the Ogba People. Dimension fublishing. t9OS. 'o Included in this is also a sense of corporate ownership and responsibility for childr:en that does not d.istinguish levels of responsib i liry. ' ' Shutte, A. ubuntu: An Ethic for a New south Africa. cluster publications. 2001 . p. 3 I " Vy'iredu's consensus model oi democracy is insightful in this regard. Wiredu, K. ''Democracy and Consensus in African Traditional Politics: A Plea for a Non-parfy Polity' post-colonial Africai Philosophy: A Critical Reader.Editedby Eze, E.C. Blackwell. lgg7, p. :O:.

t'For

indaba,te continued discussions until better understanding is achieved and consensus arising naturally there from. From the idea of the oneness of spirit inherent in the thesis, flows other notions such as forgiveness,'o generosity, hospitality, compassion, mutual^support, acceptance of difference, conversation,2l greeting,22 reverence for elders23 and so on, most of which have been used to describe theithical implications of the South African c_oncept, ubuntu,2a that comes from the phrase 'umunti ngumuntu ngabantu'25 meaning a person is a person through other persons. Following the concept, persons are characterised as inter-joined with each other socially, ethically and metaphysically. These different realms of interconnection have conceptual implications for self-perception and interaction. Metaphysical interassociation means, among other things, that the flow of life (horizontally and vertically) is not intemrpted by natural causes such as distance, communication limitations, death or any other such things. A possible meaning of this is that the link between living and dead members of a community is not broken even where there is an apparent absence of the members of the latter category. This occasions, in some contexts, a normative link between living and dead members of a community where ancestors feature in the moral sphere; that is, with relation to determining what constitutes right action. Another aspect of the normative implication of the communalist ethic can be seen in the earlier mentioned concept of ubuntu which works with a conception of the communalist ethic, taking the form of entailing certain norns and values. In Nyerere's concept of ujamaa, the ethic takes on a political and economic form with goals that aim at fostering cooperationfor productivity among members. It shows how the communalist ethic can be economically productive and in that way, promote the values of the ethic. Ujamaa canthus be seen as an economic characterisation of the communalist ethic. First developed by Nyerere in his paper, 'ujamaa - The Basis of African Socialism'2u it was used to suggest a method oi production that would present an ideological challenge to capitalist forms of thinking. ujamaa, which literally means 'familyhood', is seen by Nyerere to be a mental attitude that is based on an ethics of care and concem for others.27 Though it was
Shutte, p. 28 Waldmeir, P. Anatomy of a Miracle. Penguin Books. 1997 . p. 268 21 Shutte, p. 28 " Ahiaunt,N. 'Ubuntu and the Obligation to Obey the Law' Cambrian Lsw Review.2006. Volume 37. p. 33 " Shutte, p. 3o-1 2a As we can see in Shutte pp.28,30-1. For recent debates on the characterisation and use of ubuntu see Ramose, Mogobe. African Philosophy Through Ubuntu. Mond Books.l999;Bewaji, Tunde and Ramose, Mogobe. "The Bewaji, Van Binsbergen and Ramose Debate on 'IJbuntu"' South African Journal of Philosophy.2003. Volume 22. No. 4.p.378. " For an interesting discussion of ubuntu as a hyphenated word see Ramose M.B. ,The Ethics of Ubuntu' The African Philosophy Reader. Edited by Coetzee, P.H. and Roux, A.p.J.2003. Routledge
20 1e

p.324

by G.M. Mutiso and S.W. Rohio. 1975. Heinemann. p. 512. See also Nyerere, Julius, KI Ujamaa: Essays on socialism. oxford university press. 1968. p. l-12; Senghor, L.s. on African socialism. Translated by cook, M. Praeger. 1964; Nyerere, J.K. ,From uhuru to Ujamaa, Africa lodry Summer, 1974. pp.3-8; Nyerere, J.K. Freedom and Development (tJhuru ia Maenieleo) London University Press. 1973; Nyerere, I.K. Freedom and tJnity (tJhuru na Umoja). oxford University Press. 1967; Nyerere, J.K. Freedom and Socialism (Jhuru na Ujamaaj. Oxford University Press.1968 2TNyerere, J.K. 'Ujamaa-The Basis of African Socialism', p. 515. See also Stoger-Eising, V. 'Ujamaa' Revisited: Indigenous and European Influences in Nyerere's Social and politicaiihought, Africa: Journal of the International African Institute.20O0. vor. 70, No. L pp. l1g

] Nyerere, J.K. 'Ujamaa - The Basis of African Socialism' Edited

Reaclings in African Political Thought.

aimed at being an alternative political system, it is premised on a social and ethical order of mutual concem and cooperation with a foundation in the extended family structure.28 The values that flow from this that are, to Nyerere, relevant for socialist thinking, are first that every member of the community is aworking member, second, that they equally enjoy its resources and thirdly, that land is communally owned.2e These attributes would be aimed at ensuring that wealth is not concentrated in the hands of a few, occasioning oppression and the exploitation of less advantaged persons. The avoidance of economic or political vulnerability flows from one of the fundamental goals of ujamaa which is to create a classless society that abhors any form of discrimination.3o Nyerere says,

'This is the objective of socialism in Tutzarria. To build a society in which all members have equal rights and equal opportunities; in which all can live at peace with their neighbours without suffering or imposing injustice, being exploited, or exploiting; and in which all have a gradually increasing basic level of material welfare before any individual lives in luxury.'31
In this context, ujamaa is a product as well as a process - it represents what, for Nyerere, the i4eal society should be like and also implies ways in which this ideal can be achieved.3' []io*oa is a more systemic and struciural representation of the communalist ethic and tries to highlight the possible consequences of a 'noncommunalist-oriented' society." We also see the influence of the communalist ethic in Menkiti's processual conception of the person where he characterises personhood as being constituted when members comply with the directives of the community.34 For Menkiti, personhood in African thinking is not determined based on physiological or psychological attributes but by the extent of compliance with communal obligations and norms." The ontological implication of this is that personhood is subject to communalist definition and is not taken to be self-ascribable outside the context of communalist conceptions.36 One normative significance of this is that the community determines ethical categories with relation to what is right and what is

" "

267. p. 130

Nyerere, J.K. 'Ujamaa- The Basis of African Socialism', p. 515; See also Mohiddin, A. 'Ujamaa: A Commentary on President Nyerere's Vision of Tanzania Society' African Affuirs.1968. Vol. 67, No. Nyerere, J.K. 'ujamaa - The Basis of African Socialism', p. 513. See also Schweigman, c. 'Ujamaa, A Phantom' Quest.200l. Vol. XV. No. l-2. p. I l3 " This can be seen as related to the 'one of us' notion implied in the concept of ubuntu. See Shutte, p.
32
3r

" Nyerere, J.K. Ujamaa: Essay On Sociqlism, pp. l l0, 13-37 " It could however be possible to argue that societal ills such as oppression,

Nyerere, J.K. tJjamaa: Essay On Socialism. p. 110

more'socialist' societies. " Menkiti, I. 'Person and Community in African Traditional Thought.' African philosophy: An Introduction. Edited by Richard A. Wright. University Press of America. 1979. p. 171. Also see Menkiti, I. 'On the Normative Conception of a Person.' A Companion to African Philosophy. p.324.

exploitation and discrimination are not the monopoly of capitalist societies and could exist in other models, even in

"

Menkiti, p.

171

it, 'it is rootedness in an ongoing human community that the individual comes to see himself as a man ...' Menkiti, p. 171-2. Some have argued that the communalist structure as described by Menkiti can entertain gender discrimination and oppression. For a discussion of this see Van den Berg, M.E.S. 'On a Communitarian Ethos, Equality and Human Rights in Africa' Alternation:
'u As Menkiti puts

International Journalfor the Study ofsouth African Literature and Languages. 1999. Vol. 6. No.
p.193

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wrong, imposing punishment to discourage unacceptable behaviour and rewards to endorse what is regarded as good behaviour. The dynamics of this is what Menkiti refers to as a'process of incorporation^'37 where individuals become persons only on successful completion of the proc"ss.'* Personhood is thus regarded by him as processual and something, as he says, 'at which persons could fail.'3e The communalist ethic is here represented as a fundamental element in the constitution of the self, having therefore metaphysical as well as normative implications. It is worth noting that though there are various ramifications of the communalist ethic it carries with it, in every sphere application, the notion of eschewing the concept of 'Othemess.'00 With the ethic, not only is it the case that erriryo.r" is 'one of us'al but one's personhood is an attribute that is shared with everyone and it connects each person with the humanity of everyone and in this way obligates.a2 This takes a different form in the context of democratic theory where Wiredu posits what can be regarded as a communalist slant to democratic thinking in the form what he refers to as a consensual model which promotes notions of reconciliation and agreement.a3

Philosophers such as Gyelqye have responded to Menkiti's characterisation by taking it to imply an 'exffeme' communitarianism which may not adequately represent the normative relationship between the person and the community in African thought. For Gyekye's discussion see Gyekye, K. 'Person and Community in African Thought' Person and Community: Ghanaian Philosophical Studies (I).The Council for Research in Values and Philosophy. 1992. p. ll2. Gyekye however appears to later agree with Menkiti in principle in Tradition and Modernity: Philosophical Reflections on the African Experience. Oxford University Press. 1997. Chapter 4. For Wiredu's take on things see 'The Moral Foundations of African-American Culture' African-American Perspectives on Biomedical Ethics. Edited by Harley E. Flack and Edmund D. Pellegrino. Georgetown University Press. 1992. p. 80 and 'The African Concept of Personhood' p. 104 of the same publication and Wiredu, K. A Companion to African Philosophy. Edited by Wiredu, K. Blackwell Publishing. 2004. p. 17 " Menkiti, p. 173
See generally Ricoeur, P. Oneself as Another. Translated by Kathleen Blamey. The University of Chicago Press. 1990. pp. l, I 13, 140 o' Shutte, p. 3l a2 See Tutu, D. No Future without Forgiveness.Rider. 1999. pp.34,35, Korsgaard c. oxford Lectures. Self-Constitution: Action, Identity and Integrity.2002. (Unpublished). Lecture l: The Metaphysical Foundations of Normativity; Ahiauzu, N. 'Ubuntu and Obligation: Issues in African and Welsh Identity', paper presented at the African Studies Discussion group, Aberystwyth University, 3l't May,2007, p. 5. Menkiti's characterisation implies a different route with relation to how persons are obligated by communal obligations. For him, communal obligations constitute persons, whereas, in a Korsgaardian understandinB, one's personhood connects me with the humanity of others and therefore obligates me. In both characterisations, there is an understanding of obligation as arising fiom the publicity of the self. Thus, it does not only appear to be the case that, as is implied in this understanding, (as well as a communitarian understanding) that I am obligated because of the publicity of the self but also that a fundamental aspect of that self-publicity is that I can only constitute myself publicly. In other words, I need to rely on extemal elements to constifute myself as opposed to a Kantian understanding with the centrality of the will and certain universal principles loitt e I(ngdom of Ends) which can be instrumental with relation to this. However, euen *ith Kaxt, we also see a kind of community, albeit a conceptual community of morality where he characterises the agent as acting as a member of the kingdom of ends. (Kant, I. Groundwork of the Metaphysics of Morals. nait"a by Mary Gregor. Cambridge Texts in the History of Philosophy. Cambridge University Press. 1997 at 4:i33). Though this raises issues about a seeming reconciliation of liberalist and communitarian thinking with relation to the normative constitution of the self, it draws out a deeper issue that goes beyond that debate which is that morality could be essentially communalist and proponents o?both groups can concede to this without compromising their beliefs about the nature of the self. a3 Wiredu, K. 'Democracy anA Conse-nsus in African Traditional Politics: A plea for a Non-party Polrty' Post-colonial African Philosophy: A Critical Reader. Edited by Eze, E.C. Blackwe ti. tVSl . p. 303. Also see Emmanuel Chukwudi Eze's response to Wiredu in 'Democracy or Consensus? A Response to Wiredu' p. 313, in the same publication.
oo

" Menkiti, p. 172 38

The importance of the communalist ethic in African traditional thought makes it imperative that the African legal thinker take it into consideration in characterising the nature of law and its role in society. The necessity of this stems from the existence of foreign influences in many African legal systems that owe their present structure to the laws received during colonisation. A close attempt at this is using the communalist ethic to derive a theory of political obligation that is more in line with indigenous African conceptions of obligation.aa The South African Truth and Reconciliation commission is also a good example of relying on principles in African tradition thought (in that context, ubuntu) to arrive at a restorative rather than retributive conception ofjustice by focusing on forgiveness and reconciliation rather than more conventional forms of redress.at The communalist ethic could also be useful in streamlining legal concepts such as punishment,a6 methods of policinga7 and the general structure of the administration ofjustice with the aim of better reflecting indigenous norrns and values. This would be a significant step towards evolving a truly and authenticallyor Aftrcanconcept of law and legal system.ae In this regard, the communalist ethic can suggest that such a system would not be 'non-communalist' or contain individualist institutions in significant forms. Though the communalist ethic is a wide-ranging concept that has implications for various areas of philosophical endeavour, namely, normative,s0 political,sl social,52 metaphysical53 and economic,54

Ahiauzu, N. 'Ubuntu and the Obligation to Obey the Law' Cambrian Lqw Review.2006. p. 17 . I make a similar attempt in the context of the concept of authority in 'Razo Authority and the African', paper presented at the Cambridge Forum for Legal and Political Philosophy, University of Cambridge, 20 January 2006. ot Shutte says ofthe process that 'it is built on the relationship between selfand other, a perpetrator and a victim. Each has to tell their side of the truth, the victim the truth of their suffering, the perpetrator the truth of their crime. The story of the one constitutes a judgment, of the other a confession. The relationship develops with the victim (through the state) granting amnesty and the perpetrator (through the state) granting reparation. The result is reconciliation on the basis of truth of the ultimate value of our common humanity.' Shutte, A. 'African Ethics', paper delivered at the Ethics and Africa Conference held at the University of Cape Town, South Allica (May 29-31, 2006). p. 14. On less positive views on the TRC see, Mamdani, M. 'A Diminished Truth' Siyayal Issue 3, Spring 1998, Cape Town, p. 40; Antjie, K. Counfiy of My Skull: Guilt, Sotow and the Limits of Forgiveness in J,{ew South Africa. Three Rivers Press. 2000. p. 112; Mamdani, 'Reconciliation Without Justice' South African Review of Books, November/December. 1996; Terreblanche, S. 'Dealing with Systemic Economic Injustice' n Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. Palgrave Macmillan. 2000. Edited by Villa-Vicencio and Verwoerd. p. 265; Verwoerd, W. 'Individual and/or Social Justice After Apartheid?' The South African Truth and Reconciliation Commission. The European Journal of Development Research. l1(2). December 1999.
no

p.131
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See generally Balogun, O. 'A Jurisprudential Analysis of Yoruba Proverbs' Cambrian Law Review. 2006. Volume 37 . p.85; Oke, M. 'An Indigenous Yoruba-African Philosophical Argument against Capital Punishment. The Journal of Philosophy, Science and Lqw.2007. Volume 7 o' This would take the form of communalist models of policing where everyone is responsible for enforcing the law against each other. a8 Wiredu, 'Philosophy and Authenti city' Shibboleths: A Journal of Comparative Theory.2007. Volume l, No. 2. p.79. I discuss the significance of attaining jurisprudential authenticity in Ahiauzu, Nkiruka, 'Authenticity in Aflican Legal Thought', paper presented at the Department of Law & Criminology Inter-departmental Research Seminar series, Aberystwyth University. 1Oft October, 2007. n' This could also include more African concepts ofjustice and the judicial process, punishment, Iegal obligation, authority, functions of law, rights and adjudication, among others. 'o Ahiauzu, N. 'Ubuntu and Obligation: Issues in African and Welsh identity', paper presented at the African Studies Discussion group, Aberystwlth University,3l't May, 2001 ,p. 16 5' wiredu, K. 'Democracy and Consensus in African Traditional Poiitics: a ptea for a Non-parfy Polity' Post-colonial African Philosophy: A Critical Reader. Edited by Eze, E.C. Blackwell. 1997 . p.

its potential importance in the jurisprudential context is, as significant.

will

see, no less

II.

The Signfficance of African Identity

The problem of identity is the problem of a Self. It is occasioned when an entity questions its self-conception and how it is perceived in the world around it. With the existence of a Self, whether individual or corporate, comes the necessity to deal with issues of identity; which issues can be brought about by a direct or indirect threat to the existence of that entity.55 Dealing with issues of identity can therefore sometimes be an attempt by a Self to defend itself from a perceived destructive interference and reassert its right to exist as it is (or should b.).'u The 'crisis' here (if it can be called that) of identity is manifested in various contexts, namely, political,5T social,ss metaphysical,se economic60 and ethical.6l A factor that, ho*"r.r, runs through these various spheres is that there exists at least two different elements battling for dominance; the difficulty of compatibility brings about conflict and the need for a more structured modus for achieving a less problematic co-existence of the two elements. Relevant here, is a possible distinction between narrative and moral identity where narrative identity is characterised as identity that emerges from the stories that are thought to constitute the Self and moral identity which perlains to the various possible ways that identities can determine obligationsfor the Self.62 In the context of a society, narrative identity emerges from the histories of the people; this would particularly be the stories that have been part of shaping the people into what they are, how they perceive themselves to be and how they are perceived by the world around them. The ascription 'African' can thus mean being aware of what it means to be African - knowing and understanding the significance of certain societally-

see Wiredu, K. 'Democracy and Consensus in African Traditional Politics: A plea for Nonparry Polity' Polylog.2007. p. '" Shutte, p. 32 s3 Menkiti's characterisation sees ancestors as superior individuals where they have completed the
1

303. Also

process oFincorporation. Menkiti, p. 175 Important notions here are cooperative economics, ujamaaand the idea of social capital. '5 Ahiauzu, N. 'Authenticity in African Legal Thougl-rt' paper presented at the Inter-departmental research seminar series, Aberystwyth University, I Oft October, 2007 , p. I 56 The identity ofthe Selfcan be descriptiv" or un ought-conception. '' This would cover models of democracy (of if democracy itself is appropriate) and the proper relationship between government and citizens. 'o Relevant issues here are language, forms ofsocial interaction and social ordering. t'This would influent. con."ptions of the self and conceptions ofultimate reality. 60 Such a crisis would be reflected in conceptual conflicts as to the forms of the organisation and qlanagement of the means of production. ut This would include conceptions of right and wrong, conceptions of human flourishing and how persons ought to live. u2 In Korsgaard's discussion ofthe metaphysical foundations of identity and action, we see a characterisation of the emergence of obligation from the dynamics of the constitution of the self. See Korsgaard C. Oxford Lectures. Self-Constitution: Action, Identity and Integrity.20OZ. (Unpublished).
)a

changing experiences such as slave-trade, colonisation,63 globalisation, et cetera and the impact they have had in creating the modem African world and its position in the global sphere. Although it is not the case that these experiences totally define what being African is, they are part of understanding what it means to be Africantoday. These are not therefore merely stories (or categories of stories), they have also brought about perspectives and stand-points that have influenced and continue to influence individual and corporate worldviews. Writers such as Tim Woods6a have referred to the colonisation experience (in the African context), for instance, as a 'trauma', implying something that has in some way injured the psyche of the people; something that should be recovered from and could be impossible to recover from. My thinking deviates slightly from this view. It is the case that colonisation was wrong, should not have happened and indeed, as Wiredu put it, was an 'accident'6s but though characterising it as a traumatic event highlights the notion that it was wrong, that societies were negatively affected and are still being in some way affected by it, it also implies a characterisation of fomerly colonised societies as victims. I do not consider that to be a very apt and useful conception. For as long as an event is viewed as a trauma, the subject has not recovered from it, has not risen above it and is still in it. Being an African narratively should not be about continually lamenting on colonisation in various ways and contexts but about basing our being-ness66 on the realisation that because we are still essentially African despite colonisation, it did not significantly negatively affect. Narrative identity, in this regard, would require that we do not forget that these experiences occurred and continue to be aware of their significance today but not consider ourselves to be limited as a result of it. The link, here, to moral identity is with relation to how identity (narrative or otherwise) can make certain actions obligatory for us. In this regard, being an African could also be about acquiring a responsibility not only within the African world but to the African world. The relationship between the Self andthe Other becomes relevant here as there is implied, a characterisation of identity as dffirence from wherep, for instance, isp because it is different from g. Narrative identity is identity that emerges from my stories as opposed to the stories of an-'other' and moral identity tells me what responsibilities I owe to the society I identify with as opposed to Other societies. The notion of 'difference from Other', though it is, in this way, fundamental to the idea of identity, from it also arises part of the crisis of identity in the African context. Difference from Other can be taken to also mean non-acceptance of the Other, which non-acceptance can give rise to a conflict and struggle for domination and preeminence. This is certainly the case with relation to the problematic co-existence of notmative others in many African societies that, as a result of colonisation, received laws that continue to exist along-side indigenous nofins and practices. In this scenario, difference is not passive but active as can be seen in, among other things, one system's slow and hesitant recognition of the other.67 A good example of this is
Wiredu refers to it as an 'accident' at Wiredu, K. Cultural (Jniversals and Particulars: An African Perspective.Indiana University Press. 1996. p. 4 and Woods calls it a trauma at Woods, T. African P,asts: Memory and History in African Literatures. Manchester Universify Press. 2007. pp. 7, 8 "" I have Professor Tim Woods to thank for letting me know about his interesting book. ut Wiredu refers to it as an 'accident' at Wiredu, K. Cultural (Jniversals and Paiticulqrs: An African
P_erspective.Indiana University Press. 1996. p. 4 uu I take this to describe a sense of who we are. 67 ln the Nigerian context, examples can be seen in the application of the 'repugnancy' test in cases such as Auzinawa v Kano N.A. (1956) I F.S.C. 27 and Edet v Essien (1932) l l N.L.R. 47 where as in Edet it was held that a customary law which entitled fatherhood to the man who pays a bride-price on the child's mother as opposed to the natural father is repugnant to natural justice, equity and good
63

t0

the 'repugnancy doctrine' in the Nigerian legal context which is a judicial tool enabling judges not to enforce aspects of indige,+ous law that they consider 'repugnant to natural justice, equity and good conscience.'68 Needless to say, it carries wiitr it discriminatory (more particularly, historically racist) and derogatory undertones and perceptions of indigenous norrns. Similarly worrying, is the term 'customary law' which is used to characterise what is and should be referred to as indigenous law. The term 'customary law' is generally used in jurisprudence to refer to more conventional practices that do not attract the ascription 'law' mainly because of their relatively less structured form and content. Although it is the case that compared with what are now the mainstream legal systems in many post-colonial African societies, indigenous law can appear to better fall under a customary law categorisation, such a characterisation is not only representative of a discriminatory (particularly, historically racist) and restricted view of the nature of indigenous law, it is also a restrictive6e view of indigenous law. Granted that aspectr-of i.rdig.rous law are perhaps best characterised as 'loose law' (and therefore ocustomary' law in the general sense) it by no means adequately describes the whole of indigenous law. Just as it is the case with most legal systems, African indigenous legal systems contain customary law (that is, law which is more conventional than in the form of clear rules) but is not a customary legal system in its entirety. As with most legal systems, it contains 'soft' law but also contains more formal rules that are not merely, as with conventions, preferable to do, they are considered to be mandatory to do. Courts that are referred to as 'customary law courts' should therefore really be called what they ate: indigenous law courts. The customary law ascription is a misconception of African indigenous law and one of the ways by which what have becomi the mainstream legal systems in many post-colonial African states inferiorize indigenous systems by impliedly characterising them as 'not quite law.' Other ways include, as can be seen in the Nigerian context, requiring persons wishing to be recognized as married to do so by complying with state-recognizedprocedures (which can be done in a court registry or a recognised religious body), even if they have or are intending to get married under the indigenous marriage rites of their sub-cultural community.T0 What is interesting is that even though it is the case that such persons are not recognised by the state as married where they have been married under indigenous law and not in state law, they will not similarly be recognised by their community as married until they have complied with indigenous marriage rites even where they are recognised under state law as married. This scenario depicts the underlying conflict and struggle for domination between the two systems of law, showing not only that they exist competitively side by side but also that they indirectly claim validity against each other. The economic implication of this is, of course, that couples would have to marry twice as it where, expending money to host two marriage ceremonies
conscience and therefore void and Auzinawa whichheld that a customary law procedure which disallows an accused person to defend himself offends against the repugnancyiluus" and is therefore

A,o. The Nigerian Legal system. spectrum Books. 1979.p.g3;B.o. Nwabueze. rfte Machinery of Justice in Nigeria. Butterworths . 1963. p. 3. Also see T. Olawale. Elias. The Nature of African Customary Law. Manchester University press. 1956. u'By this I mean that it has the potential to restrict the scope of indigenous law. 70 Interestingly, in the Nigerian iontext, s. 35 of the Marriage Act 1949prohibits a subsequent marriage under 'customary law' even though in practice this does not do much to deter persons from celebrating such marriages' Needless to say, there is no such restriction under indigenous law. Also see s. 33 of the Act allowing parties who have contracted a customary law marriagJto subsequently marry under the Act.

u'obilade,

void.

11

do. The conflict continues - with every occurrence of a 'double-barrel'71 marriage celebration is seen the problematic interaction of the two legal orders, one (largely) received and the other, indigenous. Similar to this in its implied derogative interaction with indigenous law is the form and content of evidential rules with relation to 'proving' the 'validity'72 of 'customary' law which includes tests with stringent and largely non-inclusive criteriaT3 fostering the notion of indigeno,r, ,yri"m, being lh" Othu, and not the Self. What are now the mainstream legal systems send out messages of the 'Other-ness' of indigenous systems in direct as well as less direct and subtle ways. Thus, it is really not so much about persons having to marry twice (since some couples enjoy the 'double-barrel' celebration) or about the complex evidential rules with relation to ascertaining validity but really about the message that these practices send out about the indigenous system - namely, that it is inferior, that it is primitive , that it rs the Other. What is at issue here is the treatment meted out to the Other (that indeed makes it the Other) as well as which system should actually be seen as the Other. It could be thought that the other should be the received system but who gets to determine who the other is (or should be)? Whichever way this is seen as best resolved, it remains important how we try to resolve the problematic interactions between the Self and the Other. The South African concept of ubuntu appears to suggest (as can be seen as flowing from Shutte's 'one of us'74 derivative notion from the concept) that ubuntu requires us to accept 'Other-ness' and (in the context of the conflict of legal systems within a single society), the acceptance of 'Other-ness' not only in others but also in ourselves. As we see from the existence of the (largely) received legal system_ and the indigenous legal system, 'Other-ness' can also be internal to an entity.75 In other words, the existence of an Other can be in us. (Jbuntu, in this context, would suggest that we interpret acceptance of 'Other-ness' not only externally but internally to help resolve conflicts and incompatibilities. However, acceptance would not be characterised as allowing the dominance of one system over the other but as suggesting a necessary dialogue of systems based on a perception of the equal standing and value of both systems. Less inclusive suggestions can be found, in some ways, structurally implied in concepts such as negritud e76 and black consciousness77 which emphasize indigenous worldviews to the exclusion of foreign
71

instead of one as their westem counterparts would

p.
72

Onokah refers to it as a 'double-deck' marriage. Onokah, M.C. FamilyZaw. Spectrum Books. 2003.
143

In the Nigerian context certain tests such as the repugnancy test, the incompatibility test and the public policy test are used to evaluate aspects ofindigenous law as to its applicatory suitability. obilade, A.o. The Nigerian Legal system. spectrum Books. 1979. p.100-110; Nwabueze, B. o. The Machinery of Justice in Nigeria. Butterworths. 1963. pp. 6-9 " Non-inclusive structures can be seen in tests such as the repugnancy test which attempts to consequently exclude any rules that are 'repugnant to naturaljustice, equity and good conscience,, the incompatibility test which excludes any rules that are deemed incompatible withixistent statutory stipulations and the exclusion of any rules that are deemed contrary to public policy as can be seen in the public policy test. Obilade, p. 100-l l0; Nwabueze, pp. 6-9; s. 14 of the Nlgerian Evidence Act,
I

958.

7a 75

shutte, p. 31

A possible paradox here is that if the entity is an Other that is internal to the Self then it is not an Other - it is part of the Self. However, the internality of Other-ness referred to here is more of a geographical internality than a conceptual internality which is impossible outside a fundamental compatibiliry of the elements. 'o Senghor, L.S. 'What is Negritude?' in Readings in African Political Thought.Edited by G.M. Mutiso
and S.W. Rohio. 1975. Heinemann. p. 83
77

Biko, p.

85

t2

systems; in this way, adopting a somewhat similar standpoint as mainstream legal systems which, though understandable, may not produce outcomes that adequately represent where post-colonial African societies are today, that is, as not purely indigenously African and not purely westem. Negritude, as Senghor describes it, represents the 'whole complex of civilized values - cultural, economic, social, and political^- which characterize the black peoples, or, more precisely, the Negro-African world';78 in this way, attempting to characterise the essenCe of what is African. The extent of which it clearly describes what this essence of 'African-ness' is and adequately_ addresses the problematic issues that arise from the ascription 'African' is debatable.Te Ho*ever, the notion of negritude is appealing because it suggests that there is an African essence that is identifiably distinguishable from foreign influences.

If this is the case, there is no crisis of identity; this is because what is African is African and remains African regardless of interferences. However, it does not clearly describe what this essence is and this, in many ways, is the root of the identity problematic in the African context. Where there is an essence that makes something essentially African then any crisis of identity is resolved. It would therefore be less difficult to arrive at an 'African' concept of law or an 'African' concept of a legal system, which projects, emerge as part of the general aim of the African jurisprudential endeavour. Indireotly addressed, is the challenge of authenticity80 in philosophical thought which leads the African legal thinker on the path towards conceptualising a legal system that more adequately and authentically represents his society as it truly is. The challenge that the necessity of authenticity presents in African thought, as Wiredu puts it, flows from the notion of 'being true to oneself 8l and raises the attendant question, 'when is philosophy authentically African?'82 The problematic relationship between the Self and the Other makes authenticity an issue as it is with relation to the existence of another or a'non-self that the identity of the Self is questioned as to whether it is authentic. The process of authenticity becomes indistinguishable from the interaction between the Self and the Other and a possible correlative relationship with regards to how the diffrculties can be resolved emerges. In other words, it could be the case that in addressing the issue of its own authenticity, the Self indirectly resolves conflicts with the non-self or, conversely, that in its conflicts with the non-self it is dialectically compelled to define its own identity. Ubuntu, by its suggestive resolution of the Self/Other conflict in the notion of acceptance of 'Other-ness' in oneself as well as in others, implies as with black consciousness and negritude, an identification of the Self as African and the Other as not African However, not only do the concepts not clearly suggest a specific identification of the constitutive essence of the term 'African', they do not include as
78

Senghor, p. 83

touching on the sometimes impliedly subjective character of negritude see Irele, F. A. 'Negritude: Literature and Ideology' The African Philosoplqt Reader. Edited by Coetzee, p.H. and Roux, A.P.J. Routledge. 2003. p. 35. Also see generally, Soyinka, W. 'Negritude and the Gods of Equity' The African Philosophy Reader. Edited by Coetzee, P.H. and Roux, A.P.J. Routledge. 2003. p.
611

" On discussions

Ahiauzu, N. 'Authenticity in African Legal Thought' paper presented at rhe Inter-departmental research seminar series, Aberystry.th University, 10,h October, 2007 p. 7 , 81 This is, as will be seen, relited t-o questions oi authenticity with reiation to philosophical thought. See Wiredu, 'Philosophy and Authenticity' . Shibboleths: A Journal of Comparative Theory,2007. Volume 1, No. 2. p. 72. See also Golomb, J. In Search of Authenticity: From Kierkegaari to Camus. Routledge. 1995. 82 Wiredu, K. 'Philosophy and Authenticity'. Shibboleths: A Journal of Comparative Theory.2007. Volume l, No.2. p. 72

to

13

consciencism appears to do, a formal method of a possible constructive interaction


between the self and the other. Nkrumah uses the term 'philosophical consciencism'83 to describe an approach to the reconstruction of African identity after colonisation that uses what he calls the 'African conscience'84 as a philosophical standpoint to choose which humanist principles would make up the new African identity mainly arising from a hybrid of core African values and any other influences, though still remaining true to our Africanness. This would be the intemal dynamics of a necessary social-cultural revolution that is aimed at having the effect of resolving

any crisis of post-colonial African identity. Nkrumah says:

'...

consciencism is the map in intellectual terms of the disposition of forces which will enable African society to digest the westem and the Islamic and the Euro-christian elements in Africa, and develop them in such a way that they fit into the African personality. The African personality is itself defined by the cluster of humanist principles which underlie the traditional Alrican society. Philosophical consciencism is that philosophical standpoint which, taking its start from the present content of the African conscience indicates the way in which progress is forged out of the conflict in that conscience.'85

The consciencist approach, in including a conceptual tool in the form of an 'African conscience' that could impliedly address the Self/Other problem with relation to African identity, represents a more systematic and constructive model.86 However, it comes up against a similar difficulty with relation to defining African identity (as can be seen in the other concepts), in its unclear identification of what the African conscience consists of. Interestingly, as with defining the contents of 'African-ness', if what Nkrumah refers to as the African conscience is clearly identifiable there would be no conflict in our conceptions of identity and therefore no crisis. In many ways, in identifying the African conscience we also identifi, what the essence of being African is. For the African legal thinker this becomes impossible to ignore as it is trigfrtgtrted in how he is to conceive the nature of the concept of law in African thought *a tn. significance of this in constructing what can be regarded as a truly 'African' legal system. The difficulty in avoiding questions of African identity and the issues ihat arise from it, in many ways, define the African jurisprudential project. The Self/Other problem with relation to African identity is more glaring and its implications more practical and indeed urgently in need of resolution in the legal sphere. On the other hand, it could be within the sphere ofjurisprudence that possible insights can be gained to resolve the issue in general African philosophical thought. the legal sphere represents an arena where the conflict is most visible and perhaps, in this regard, easier to tackle and attempt at resolving. The significance of issues of identity for the
Nkrumah, K. 'Consciencism' in Readings in African Political Thought.Edited by G.M. Mutiso and S.w. Rohio. 1975. Heinemann.p.644;Nkrumah, K. 'consciencism, T1riron philisophy: An A^nthologt. Edited by Eze, E, C. Blackwell. 199g. p. 10 Ea Nkrumah, K.,p.644;Nkrumah, K. Consciencliz. Heinemann Educational Books. 1964 o'Nkrumah, K., p. 644
There can also be found implied in Wiredu's notion of conceptual decolonization, a useful method in this regard. It can be used as a way to achieve authenticity with relation to Affican ihought on a concept. For more on the method of conceptual decolonization, see wiredu, K. A Complanion to African Philosophy. Edited by wiredu, K. Blackwell publishing. 2004. p.14-6; wiredu, Kwasi. Cultural Universals and Particulars: An African Experience. maiana University rress. t9lO. p.
S 83

oo

t4

African jurisprudent arises from the necessity of authenticity and the need for the emergence of a truly African conceptualisation of the nature of law and its role in society - this would be a conception that more adequately reflects the fundamental norrns and values of African thought. Perhaps this is an ambitious interpretation and what should rather be seen as the case is aiming at attainhigher and higher degrees of authenticity with relation to achieving an African legal system, implying the analogy of aiourney towards the authentic that perhaps will never end but which, with each step we are closer to, as Wiredu would say, being our true se1ves.87

IIL

The Importance of African Unity

In the context of authenticity, the concept of unity begins to take on interesting and significant forms, one of which is whether an attribute of the authentic self is that it is unified. Unity here could mean different things - it could mean unity at a moment in time (synchronic unity)88 or unity across time (diachronic unity). Inthis regard, authenticity could interpret unity as the sameness of the self across time; that is, regardless of external changes and interaction with the world. This being the case or not, a significant aspect of the possible relationship between authenticity and unity with relation to the self is the belief that unity is desirable as a virtue and the self in its truest form is unified.8e Here, the process of unification bears similarities with the joumey of authenticity, in being characterised as goals to be achieved, anotion that we see played out in Menkiti's processual conception of the person.e0 Viewing unity as a virtue and a goal is not uncontroversial as questions are raised as to the necessity of the unification of consciousness - that is, whether it is possible,el whether it is identifiable (and how so) and if in fact it important that it exist.e2 An argument can be advanced that the expression of the self implies unity if, as Korsgaard would argue, the self needs to be unified in order to act.er She characterizes action here as good action, arguing that bad action does not exist since, for her, for something to be described as action it has to be good.ea So in order to act (that is, act moially) the self needs to be unified and when it is not unified whatever it does is bad action and therefore not action at all. Thus, for her, the necessity of unity is the necessity of
*' Wiredu, K. 'Philosophy and Authenti
Volume

city' . Shibboleths; A Journal of Comparative Theory.2007 .

thought-provoking discussion of synchronic unity of consciousness see James, W. principles l. Macmillan. 8e Kant's transcendental deduction ofthe categories relies on the notion that consciousness is unified. Kant, I. Critique of Pure Reason. Translated by Guyer P. and Wood, A. Cambridge University press.
a

tt For

1,

No. 2. p. 72

Psychologt. I 890. Volume

of

"

t999 'o Menkiti, p. 172 er Rosenthal, D. 'Two Concepts of Conscious ness' Philosophical Stuclies. 1986. Volume

49.

p.344

This scepticism includes siepticism as to the existence ofconsciousness or consciousness as we think it to be. Hume expresses scepticism about the unity of consciousness describing it as only a 'bundle of different perceptions.' Hume, D. Treatise of Human Nature. Edited by Selby-Bigg", I-.A. Oxford University Press. 1962. p.252 " She says of the moral agent that '... self-consciousness divides his soul into parts, and he must reconstitute his asencv- pull himseif back together, in order to act., Korsgaard, p. 24 " Korsgaard, p. i8

15

(good) action: because we need to act morally, we need to be unified and vice versa.es Overlooking the possible paradox here (which arises in the question as to whether the self is unified before it acts or is unified in action and therefore not actually unified before it acts),e6 the notion of a link between the state of the self and the eipressions of the self is insightful as to the importance of thinking about the significance of unity in existence. Korsgaard's reasoning appears to suggest that whether or not we commit to the idea that the unity of the self actually exists, conceptually, it needs to exist for action (that is, right action) to be possible.eT It is therefore conceptually a normative necessity.es In other words, even if the unity of the self does not actually exist, since the self has to work with a sense of unity,ee the concept of unity with relation to the self remains important. If the unity of the self is a delusion, it is a necessary delusion - one thatwe need to have in order to function. As Descartes put it, 'when I consider the mind, that is to say, myself inasmuch as I am only a thinking thing, I cannot distinguish in myself any pa.rts, but apprehend myself to be clearly one and entire."00 The necessity of unity is that it makeilbeing' possible. Drawing from this, it could also be the case that unity is not something that we are all the time but when we need to act we uni$, in order to act (or act rightly).101 Whether this is the case or not, unity is necessary for being, possibly also implying that it can (as with authenticity), be a resolution of any dialectic within the Self. This is because unity implies congruity; not the non-existence of component parts but a situation where these parts are working in tandem,l02 (raising the notion of the unity of purpose). The construction of African identity compels us to take the concept of unity seriously as it can enable us characterise (as Korsgaard does), right action as one which promotes unity. The characterisation of unity here would be akin to a somewhat 'gestalt' unity where unity emerges from the way that the components relate to the whole - each part working with other parts to complement the whole,l03 making an important aspect of unity, the interaction of the component parts which some thinkers have referred to

Korsgaard, pp. 4,7 ,8. Similarly, Korsgaard argues on justice that it is, 'the condition of being able to maintain our uniry as agents.' Korsgaard, p. 22 "'Similar issues in the paradox of self-unification also arise in the possible paradox of self-constitution that can be seen as arising from Korsgaard's characterisation. Korsgaard, p. l6 n7 This is a more behaviourist upp.ou.h to arguing for the existence if and need for unified From Korsgaard is suggested that the possibility of action not only shows the importance of unity but also the possibility of unity. Thinkers such as Bayne and Chalmers argue that consciousnes s must be unified. Bayne, T. and chalmers, D. 'what is the unity of consciousness?, The unity of Consciousness: Binding, Integration and Dissociation.Editedby Cleeremans, A. Oxiord University Press. 2003. p. 24. Brentano also argued that all the conscious states of a person need to be unified with one another. See Brentano , F . Psychologt from an Empirical f oint if ttiew. Translated by Rancurello, D. T. and McAlister, L. Routledge. 1973 ee Rosenthal argues that all we have is a seni of the unity of consciousness. Rosenthal, 1986, p.344. r00 Descartes, R. Meditations on First Philosophy. Translated by Haldane, E.S. and Ross, G.R.T. Zfre Philosophical works of Descartes. volume l. cambridge University press. 1970. p. 196 "' It could also be that good action continues to unifli us at higher and higher leveis so that the more we act rightly (that is, act unified) the more unified we get. '02 An example of how this ciuld be is as in gestalt unity, where unity emerges in the form where the parts appear derived from the whole. Tye, M. Consciousness and Persons: ()nity and ldentity. Cambridge University Press. 2003. pp. I l-5; Bay,ne, T. and Chalmers, D. ,What is
Consciousness?' The Unity of Consciousness: Binding, Integration and Dissociation. Oxfoid Urriversity Press. Edited by Cleeremans, A.2003.p.27 to' Ty., M., pp. I l-5; Bayne, T. and Chalm ers,D.,p.27
the Unity
e*

e5

consciousness,

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variously as co-consciousness,lOaloint consciousn"ssto'and subsumption.106 To some extent, these terms carry, in different forms, the notion of unity as emerging from the nature of the interaction between experiential parts, (a largely experiential view of the structure of unified conscious experience). A 'no experiential'107 view would reject this claim argurng that particular experiences are subsumed in a larger unified experiel^ce and are replaced with newer experiences rather than remaining part of a whole.108 Subsumption as a way of characterising the relationship between parls in a 'unity-from-parts' notion of the unity of consciousness, presumes a conjoint phenomenology where experiencing two states at the same time subsumes the phenomenology of the individual states. With co-consciousness, unity is taken to arise even where there is no subsumption but there exists, an unproblematic interaction between parts.10e Thus, if parts are compatible in their interaction, unity can still emerge in the absence of subsumption. This can be also be true of various forms of unity such as the unity of cognition, gestalt unity and the unity of behaviour. In a sense, the notion of compatibility is at the basis of any kind of unity; even where the conception of unity in question is diachronic unity (that is, unity over a period of time). Such a form of unity can only occur where the elements linking the passage of time are not incompatible with each other. Where there is unison in conscious experience, any form of unity can emerge. Thus, whether by way of subsumption or interaction, there has to be compatibility in order for unity to emerge. This is somewhat limited in its ability to resolve issues of identity in African thought though it does assist in clarifi,ing ideas particularly with relation to similarly suggesting an emphasis on the identification of the essence of 'African-ness', which identification would facilitate the attainment of a degree of compatibility and consistence. Although diachronic unity with relation to identity appears to imply that authentic identity means 'sameness across time', it more importantly emphasises compatibility in the continuity of identity. Also propping up in a diachronic characterisation of unity is the significance of memory and thought insertion for continued consistence of consciousness. Thus, if the Self remembers who it is it is in less danger of consciously and unjustihably accepting a different identity as its true identity. Thought insertion can remedy this by introducing a thought that acts as a 'sieve' to eliminate incompatible elements and restore a smooth flow of unity and continuity of consciousness. This 'sieving thought' could take the form of a methodll0 or a noffn.
James, W. 'A Pluralistic Universe' Essays in Rctdical Empiricism ancl a Pluralistic (Jniverse. p. Smith. 1967. p.221. Also see Parfit, D. Reasons and Persons. Oxford University press. 1984; Hurley, S. Consciousness in Action. Harvard University press. 1998 '0t Brook, A. Kant and the Mind. cambridge tiniversity press. 1994. p.3g; Brook, A. .Unity of Consciousness: What it is and Where it is Found' Proceedings of the-22"d Annual Conferenle of the Cognitive Science Society. LEA.2000. p. 102; Brook, A. and Raymont, P. 'Unity of ionsciousness, Proceedings of the 28'h Annual Conferince of the Cognitive Science Society.LEA. 2006. Joint consciousness is characterised as emerging where in having consciousness of one item, one also has consciousness of other things. For Tye when we are unified we experience things together. (Tye, M., p. 36)' Joint consciousness can take any of the following forms: unified consciousness of individual objects, unified consciousness ofcontents (and here, a possible unified consciousness ofacts of experiencing), unified consciousness ofoneselfand a unity offocal attention.
too

Smith. 1967. o.221 r10 Wiredu's notion of conceptual decolonisation can be characterised as such a method. Wiredu, K. Companion to African Philosophy. Edited by Wiredu, K. Blackwell Publishing. 2004. p.14-6.

Bayne and Chalmers, p.27 are the intemaflinks theory and co-ownership theory. Bayne and Chalmers, p.27 'o* 'o' James, W. 'A Pluralisiic Universe' Essays in Radicql Empiricism ancl a Pluralistic (Jniverse. p.

to'Others

'uu

See also

t7

Similarly important however, is the identification of the osigns' of a unity of consciousness or, conversely, the 'symptoms' of disunity. Needless to say, the importance of this is that it would assist evaluative thinking on the nature of African identity reconstruction. From Korsgaard's take on identity in the context of morality, a significant osign' of unity is action (where to her, action must be good in order to be characterised as action). Flowing from this behaviourist perspective, a symptom of disunity would be 'non-action' or uncoordinated and inconsistent action where coordination would mean activity that promotes the welfare of Africans. Disunity would be expressed in inconsistent action and would therefore be symptomatic of the existence of what can be considered to be the main threat to unity: interference. The 'journey' of authenticity becomes how the Self deals with interferences in order to restore itself. Here, authenticity is restoration. The significance of memory in the continuity of the unity of consciousness becomes clear here as in order to achieve restoration, the Self needs to remember what it was prior to the interference, (in this regard, an awareness of African history becomes a necessary and significant step), and overcome the fear of assuming that identity despite the interference. In this regard, within the concept of black consciousness can be found implied, two relevant characterisations of unity in the African context that bear pan-Africanist admonitions as to what the African citizen can do to assist in the reconstructive development of his society. According to Biko, 'Black Consciousness is an attitude of mind and a way of life, the most positive call to emanate from the black world for a long time. Its essence is the realization by the black man of the needto rally together with his brothers around the cause of their oppression - the blackness of their skin - and to operate as a group to rid themselves of the shackles that bind them to perpetual servitude.,111 (Emphasis
supplied) Here, the notions of unity as mutual support and the unity of purpose (or focal unity) arise as necessary attitudes for reconstructive development which, as different from the concept of pan-Africanism, signals in the notion of black consciousness, more clarity as to what unity should mean in the African context. Also emerging from Biko's thinking, is a notion of unily as completezess where as he says 'thinking along lines of Black Consciousness makes the black man see himself as a being ro*pl.t. in himself.'112 This is the notion of unity of the self-in-itself,the perception of ttre Sem that it is complete in itself and not requiring of the inclusion of unnecessary incompatible elements in order to be complete (or achieve a sense of completeness). This is unity as wholeness. It would not, however, mean being an island but that the Self interacts with the Other from a stand-point realisation that it is complete in itself - that it is whole. A conceptual significance of this for the African legai thinker is the notion, as we see implied in concepts such as ujamaa and. ubuntu. thai African thought and culture (that is, 'customary' law) contains sufficient resources for

Wiredu, K. Cultural (Jniversals and Particulars: An African Perspective. Indiana University press. 1996. p. 5 t11 Biko, S'8. 'Black Consciousness and the Quest for a True Humanity' in The African philosophy Reader. Edited bv P.H. coetzee and A.p.J. Roux. Second Edition. Routledge. zod:. p. st t12 Biko, p. 82

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conceptual characterisations in law.l13 A more practical significance of the notion of as completeness is where, as a result of economic lack, there is a conflict of allegiance occasioned where African societies sometimes need to partty rely on external economic aid. The need for a sense of completeness is also at the basis of the problem of conceptual generalisation with relation to developing ideas such as the nature of the concept of law and other jurisprudential terms in African thought. This is exemplified in the two possible questions that can arise from this, namely, what I have referredto as particularity and universality where particularity raises the question whether a conception is African because it is particular to Africa or, as with universality, whether a conception is African because itis universal to the many 'Africas.' In addition to being problems in the justificatory sphere of African jurisprudence, they are also problems of methodology with relation to evaluating authenticity both structurally and substantively. In the context of the justificatory project, these questions are similarly raised as to whether the concept of law is culturally (that is, in a particularistic way) dehned or whether it is a universal concept. Though this issue appears to suggest a need to adopt one way or the other, what it more usefully suggests is a project of investigating the nature of law in various cultural contexts with the aim of determining whether it can be characterised as universal or not. Failing to do so could bring about the consequence of indirectly imposing the conceptions of one culture to another. A 'globalizing' world calls rather for a cross-cultural dialogue in legal theory and not a'general jurisprudence' as yet."o A 'general' jurisprudence can only genuinely arise as a product of comparative legal theory which would, like comparative philosophy, bring to one platform, jurisprudential traditions (such as Asian, African, Talmudic, Islamic, Hindu and others) that have evolved over centuries and are separated by geographical, cultural and sometimes religious boundaries.lls Important, of course, in comparing philosophical cultures, would be resolving issues of commensurability such as methodological commensurability that pertains to whether, how and for what uses comparisons between different traditions are to be conduct"d;"6 a metaphysical corlmensurability that would involve comparing traditions as to the nature of reality;117 an epistemological commensuratitity aeaing with comparing traditions with relation to determining what is true;1r8 and an ethical commellsrrability that entails comparing culturg! with regards to how persons ought to live and what constitutes right action.lle An additional form of commensurability which is particularly relevant for legal thought is what r call a jurisprudential

unity

Press.2001;Twining, W. Globalisation and Legal Theory. Cambridge University Press.2000; Twining, W. 'General Jurisprudence' Latv and Justice in Globat Society. Edited 6y Escamilla, M. and Savedra, M. Proceedings of the 22'd World Congress on Legal and Social Philosophy, Annales de la Castedra, Fransisco Suarez, Granada. 2005; Glenn, P. Legal Traditions of the Woild: Sustainable Diversity in Law. Oxford University Press. 2007; Menski, W. Comparative Law in a Gtobal Context: The Legal Systems of Asia and Africa. Cambridge University press. 2000 "' Wong, D. 'Comparative Philosophy: Chinese and Western' Stanford Encyclopedia of philosophy. 2001. p. I 'u op. cit., wong. Also see, wong, D. 'Three Kinds of Incommensurabil ity, Relativism: IntWretation and Confrontation.Editedby Krausz, M. Notre Dame Univeisity press. 1989. p. 140

K. 'Philosophy and Authenticity'. Shibboleths: A Journal of Comparative Theory.2007. Volume l, No.2. p. 73 "n See generally, Tamanaha, B.Z. A General Jurisprudence of Law and Society. Oxford University

"3 Wiredu discusses this point in the context of philosophical authenticity in African thought. Wiredu,

"'Op. cit., Wong lllop.cit., Wong "'op.cit., wong

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commensurability that would cover comparing traditions as to the different characterisations of the nature of law and jurisprudential concepts. The role of comparative jurisprudence is that it can be the bridge between particularist jurisprudence and the attainment of (if it is necessary) a 'general' jurisprudence, of which a suggestion of, at this time, is too hasty in the absence of a thriving comparative and cross-cultural jtrisprudence. In attempting to resolve similar issues in his work, the African legal thinker assists in the wider movement towards a more 'globalized' jurisprudence since questions of particularity and universality with relation to conceptual development in African thought require the African legal thinker to identify, examine and address allthe possible issues that emerge from the questions raised, in this way, enabling him to produce concepts that are evaluatively authentic. Thus, rather than adopting either of both approaches, a critical determination of the most suitable approach for the development of the concept in question is a more realistic and productive approach. The necessity of authenticity makes being aware of and addressing such issues parl of the project of African jurisprudence and to this extent, contributes to the enterprise of unifying identity in the African context.

IV.

Identiffing Interrelations

In exploring the three insights, namely, the centrality of the communalist ethic, the significance of African unity and the importance of African identity, we see that certain common themes emerge showing overlap and potential mutually-assistive relationships between the ideas, where one idea can provide insights and resources that assist in the understanding of the other. For instance, exploring the centrality of the communalist ethic can be a step towards a characterisation of what can be regarded as the essence of the African worldview and, in this regard, be useful in the journey towards authenticity and the bringing about of the unity of identity. The communalist ethic suggests that an important aspect of the concept of identity is identificationl2osince there is the need to identify what the essence of 'African-ness' is and a fuither need to identify with this essence in order to be characterised as authentically African despite the existence of external influences. The essence will be useful in achieving synchronic as well as diachronic unity where it acts as a link between a string of experiences across a period of time. The three possible forms of interrelation that exist between the ideas, namely, a justificatory interrelation, a consequential interrelation and an explanatory interrelation, show a unity of the three ideas; the specific kind of unity, in this context, being afocal unity (or unity of purpose), also implying and highlighting the absence of any significant incompatibility between the insights. A justificatory interrelation, in arising where a particular insight is taken as justifuing the other, fosters this unity by validaiing its enterprise and indirectly offering a foundation for its relevance. So that, for instance, articulating African identity, as earlier mentioned, could be seen as justified by the need for African unity. Similarly, a consequential interrelation, in considering an articulation of African identity as also bringing about African unity, caters foi an
Tamir uses the notion of identification in identity in a different way. She argues, as a prerequisite for deriving obligation from one's membership of a community, that p".ron, should identifywith the community. Tamir, Y. Liberal Nationalism. princeton university preis. 1993. p. 135
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important aspect of unity which is the mutual support of parts. Explanatory interrelations, in this context, would be assistive in elucidating the need for the emphasis on notions such as the communalist ethic, which emphasis can be taken as explained by the need for a reconstruction of African identity after colonisation and showing how such a notion is needed to act as a unifying link between the different considerations that can arise from all the ideas.12l The differences between the interrelations are significant for methodological concefirs and the identification of where the emphasis should lie in conceptual characterisations. Whichever form of interrelation is adopted as the most adequate will consequently imply beliefs not only about what the African legal thinker should regard as most important in his work but also about what is at stake in jurisprudential endeavour in the African context. Identifying the significance of interrelations between the ideas therefore enables the African legal thinker to understand the part that his work plays in the development of African philosophical thought generally. It links the jurisprudential project to larger philosophical concerns in African thought and locates it as a useful source of gaining better understanding of the common issues. The journey towards authenticity in African thought is not only the African legal thinker's journey; it is also the African philosopher's journey. The importance of authenticity in African thought arises from the need to show, as Wiredu would_ say, that 'Africa [can] be herself again and thrive in the modern world on that basis.'122 The ideologies that have been dlscussed, (namely. ujamaa, negritude, black consciousness, ubuntu, pan-Africanism and consciencism), though emerging as responses to foreign interferences and used to represent and foster struggles to overcome oppression, economic hardship, racial conflict, crisis of cultural esteem, disunity and more, are also insightful for the jurisprudent as they-are crystallized wisdom of persons some have referred to as our philosopher kings123 and can continue to offer,,, *o." insights (such as the relationship between cultural identity and legal identity and how a culture's engagement with another culture is reflected in and/or can be resolved in law) that can go a long way in providing the needed direction in the development of African legal thinking.

Iq as is developed in Korsgaardian ethics, we act unified when we act according to the laws of our own will or causality, a related interrelation can arise where in identiflring and acting in accordance with the African conscience as the 'law of our own causality' as Korsgaaid would siy, we unif, our se-lves/identity. See Korsga ard. p. 26 '- Wiredu, K. 'Philosophy and Authenticity' . Shibboleths: A Journql of Comparative Theory.2007. Volume l, No. 2. p. 73 "'-YI.O}, K. A iompanion to African Philosophy,Edited by Wiredu, K. Blackwell publishing. 2004. p.-18-9. See also Gyekye, K. 'Person and Community in African Thought' person and Comminity: Ghanaian Philosophical Studies Q). The Council for Research in Valuis and philosophy. 1992.

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