ADMINISTRATION OF JUSTICE AND THE DEVELOPMENT OF AFRICAN JURISPRUDENCE (YORUBA AND IGBO SOCIETIES AS CASE STUDIES)
ABSTRACT
The study examined administration of justice and the development of African jurisprudence using Yoruba and Igbo societies as case studies. It further examined the concept, nature and the historical perspectives of justice and its administration. The development of African jurisprudence, it misconceptions, importance of proverbs as part of African jurisprudence were also examined. Of importance to the examination under the study is the comparison of African jurisprudence vis a vis Western jurisprudence through the common law of African and the English common law. It examined also, the lessons which could be derived from African jurisprudence for Mainstream Western Jurisprudence.
The study relied basically on primary and secondary sources of information. The primary sources include legislative enactments, and judicial decisions as well as custom and traditions of the African societies. The secondary sources included book, articles by jurist, historians, philosophers and many more, lectures, newspaper and message notes were also considered.
Information obtained from these sources was subjected to content analysis.
The study found that the concept of justice in the African traditional societies shared similar features with that of the western societies. It also found that the no further definition, classification, illustration and explanation may be given to mainstream Western Jurisprudence which doesn’t exist in the African jurisprudence. It in the same vein found that there are certain
concepts of jurisprudence present in Western Jurisprudence which have their origin in African traditional societies as such serve as lessons for the mainstream jurisprudence.
The study concluded that the importance of administration of justice in the African traditional societies as well as the significant lessons offered to mainstream Western jurisprudence cannot be over stated. It showed the need to preserve our custom and traditions no matter how less expensive an alternate might be.
TABLE OF CONTENTS
PAGES
CERTIFICATION I
DEDICATION II
ACKNOWLEDGMENT III-VI
TABLE OF CASES VII
TABLE OF ABBREVIATIONS VIII
ABSTRACT IX-X
GENERAL INTRODUCTION 1-8
⦁ Background to the study- 1-3
⦁ Statement of research 3-4
⦁ Objectives of the problem study 4-5
⦁ Significance of the study 5-6
⦁ Research methodology 6-7
⦁ Structure of the study 7-8
CHAPTER ONE 9-82
CONCEPT, NATURE, AND HISTORICAL PERSPECTIVES ON JUSTICE AND ITS ADMINISTRATION
Introduction9-11
Concept and nature of justice11-15
Historical perspectives on justice15-22
Theories on justice23-56
1.4.A John Rawls: a theory on justice 23-36
1.4. B Robert Nozick 37-41
1.4. C Ronald Dworking 41-48
1.4. D Natural law theories 48-49
1.4 E Utilitarian theories 49-51
1.4 F Pragmatist (sociological) theories 51-54
1.4 G The “Sense of justice” theory 54-56
1.5 Aristotle distributive and corrective justice 56-70
Administration of justice70-75
African perspectives on justice75-82
CHAPTER TWO 83-134
ADMINISTRATION OF JUSTICE IN THE YORUBA TRADITIONAL SOCIETIES
Introduction 83-84
Physical environment and geographical position of the Yoruba land84-88
Climatic features of the Yoruba land88-90
Rainfall90
Drainage91
Natural vegetation91-94
The political and Ethical history of the Yoruba people94-102
The features of administration of justice in the Yoruba land103-114
Structure of the administration of justice in the Yoruba land114-134
CHAPTER THREE 137-163
ADMINISTRATION OF JUSTICE IN THE IGBO TRADITIONAL SOCIETIES
Introduction135-137
Physical environment and geographical position of the Igbo land138-141
Climatic features of the Igbo land142
Drainage142-143
Rainfall143
Natural vegetation145-151
2.7 The political and Ethical history of the Igbo people 145-149
The features of administration of justice in the Igbo land149-159
Structure of the administration of justice in the Igbo land159-160
cil of Elders160-161
3.9.2 Age-groups 161-162
Women Associations162-163
ecret Societies 163
CHAPTER FOUR 164-289
THE DEVELOPMENT OF AFRICAN JURISPRUDENCE
Introduction 164
African jurisprudence: is there African jurisprudence or African philosophy of law--------164-189
Some African proverbs as African jurisprudence189-200
The English common law and African “common law” through proverbs compared--------201-234
The divine or absolute rights of the king201-206
The rule against hearsay 206-208
4.4.3 The principle of natural justice 208-214
The principle of character evidence214-217
The doctrine of caveat emptor217-218
The maxim of volenti non fit injuria218-219
The concept of legal personality210-222
The doctrine of sanctity of contract222-223
The principle of habeas corpus223-224
Equitable principles 224-227
4.4.11 Criminal law and common law 227-231
African cultures as dictate of its law and philosophy232-252
Sense of community 232-235
4.5.2 Sense of good human relation 235-238
Sense of sacredness of life238-240
Sense of hospitality 240
4.5.5 Sense of sacred and of religion 240-242
Sense of time242-245
Sense of respect for elders 245-247
4.5.8 Sense of language and proverb 247-250
Misconceptions of African philosophy of law or jurisprudence250-289
CHAPTER FIVE 290-309
LESSONS OF AFRICAN JURISPRUDENCE FOR MAINSTREAM WESTERN JURISPRUDENCE
Introduction290-293
African jurisprudence, any lesson for mainstream Western Jurisprudence293-318
rpose of law 294-297
Laws as codes of general principles not of details297
cept of legal personality 207-299
arian theory of law 299-202
Law as reflections of custom and morality302-305
The concept of status and substitution305-307
ciliation and compromise307-309
SUMMARY, CONCLUSION, AND RECOMMENDATIONS 310-330
v Summary of findings 310-316
v Recommendations 316-325
v Conclusion 325-328
BIBLIOGRAPHY 329-340.
GENERAL INTRODUCTION
Background to the study
The nature, scope, and objectives of jurisprudence could make one draw a conclusion that jurisprudence was the first of the social sciences to be born. Its province has been determined and re-determined because the nature of the subject is such that no delineation of its scope can be regarded as final. For instance, someone may read any of the standard books recommended on criminal law or contract with the assurance that, whichever book he does read, he will derive much the same idea as to what the subject is all about.
Contrarily, it is not like that with books or concepts in jurisprudence because “jurisprudence” varies so widely in subject matter and treatment that the same answer to the question is “jurisprudence? is that it means pretty much whatever anyone want it to mean. This kind of answer suggest that something amiss with the question.
It could however be inferred from the above that any concept on jurisprudence just as the nature of jurisprudence is elusive and also in its distinctive scope, vague and difficult to define with accuracy.
A topic on jurisprudence just like the present one in this study will usually accommodate divergence opinions and position with all aimed at questioning and answering some basic jurisprudential questions and position on law.
However, a good number of scholars and legal writers have expressed divergent opinion about the relationships, both similarities and differences between African jurisprudence and the and the mainstream western jurisprudence and this has continued to attract the interest of lawyers as well as historian to the determination of such existence of both jurisprudence.
When the issue of justice is mentioned, it looks like that which post another direct question and warnings to one that he or she must be extremely careful in the determination of what is just and what is unjust. Thus, what comes to my mind is can’t there be a yardstick to determine what is just and unjust, should there be a divergence in such determination? What exactly does my society regard as justice?
It is however important to know that what is justice is a matter of circumstance and conditions but certainly, a society notion of just will or might be different from that of another. For instance, what is just in African societies might not be in some or European societies.
It is to be known that the notion of justice in the traditional African societies which is basically to unite the society is different from the European system which is to accord blame to the guilty party and award or commend the other
Many students have seen the reception of the English law into Nigerian and many other African societies as a blessing which if not brought or given like a blow would mean we cannot have a balanced legal system. It is view of this I choose to write on this topic to expose their ignorance to what exactly exist as the English legal system or jurisprudence as well as African jurisprudence so that they may be saved from the darkness and accept that it would have been more a blessing if theses African laws were allowed to grow on their own.
Furthermore, it is important however to mention that when the question about legal system is asked in African societies, it is showed that what comes to mind is the British legal system any other thought on the legal system of the country is a test to subject such legal system to the common law system. Nigeria as a case study, very little perhaps the administrators of the law are interested in the origin of such legal system.
This study analyses the whole issues of African jurisprudence in relation to Administration of justice in the traditional African societies and the development which the jurisprudence as witnessed as a result of mainstream jurisprudence. It further argues in support of the development of African concept of law rather than the transportation of the dictates of the European legal system.
Statement of Research Problem
Broadly speaking, the general name for the body of thoughts on law – its nature, scope, functions, and limitations - is called jurisprudence. Since this view is universal, then we begin to wonder why the idea of African jurisprudence has not been adequately pictured in philosophical reflections on the nature of law and jurisprudence. There are and have been many reasons for this absence. In fact, the quest for the nature of African jurisprudence is not one that can be glossed
as if it is not controversial. The indication that is conspicuously thrown up in much current jurisprudential literature is a loud absence of African articulation on the subject matter of jurisprudence. This is perhaps, a fallout from the long tradition of denying the existence and possibility of African philosophy, or African philosophical traditions.
Proper examination of the concept of African law would shows that these various views on African jurisprudence are mere misconceptions which have been showed over the years from different opinions of various writers.
In line with the above perceptions about African jurisprudence which is the main problem of research of this study. The study however beams its search light on the concept of justice from the historical period to the present day administration of justice to have a vivid picture of the misconceptions of African jurisprudence. It explains the administration of justice in the traditional African societies which if given a holistic approach would enable one understand the development of African jurisprudence.
The main issue I have with these misconceptions of African jurisprudence is the believe that the western jurisprudence is the true reflection of jurisprudence and this will be given proper exposition in the comparison between the concept of African jurisprudence and the western jurisprudence which shows the differences and similarities which portrayed that African societies would have been better in terms of justice and its administration if it were allowed to grow in line with the traditional laws and customs.
Common law of England could be seen mainly as a law which grew out of the notion of common sense and the dictate of natural law which is off course a dictate of any human society so; it is
problematic to see that African jurisprudence at one time was viewed as less jurisprudential to Western jurisprudence.
Objectives of the study
The primary or main objective of this study is the examination of the concept of justice right from the historical perspective to the administration of justice in the traditional African societies and to show significant importance in the approaches of African societies to the notion of justice.
The specific objectives of the study are to;
1. To emanine the concept of justice, its nature, history, theories and the administration of justice.
2. To examine the concept of justice and factors affecting its administration in the Yoruba traditional societies.
3. To examine the cocept of justice and factors affecting it administration in the traditional Igbo societies.
4. To examine the development of African jurisprudence.
5. To examine the lessons of African jurisprudence for mainstream western jurisprudence.
Significance of the study
The uniqueness of the traditional system of Administration of justice in the Yoruba and Igbo societies of African which range from the reconciliation of the parties to further integration of the community is a justification and significance of this study. Another justification of this
study could be seen in an attempt to subject African jurisprudence which is rich in every aspect of human life which will however be elucidated in this study by some Eurocentric approach of Europe writer is merely an attempt to discredit such uniqueness.
Significantly, the concept of arbitration and mediation has its origin from African jurisprudence
since it’s the main means of resolution of conflict.
This study is significant by its nature as to bringing together two approaches from two wide societies in African as case studies.
Many writers don’t like to write about the significance of the mainstream jurisprudence lessons on the African jurisprudence. So, this study is unique in its attempt to shed light on this aspect of the enquiry.
Research methodology
The study relies on primary and secondary sources of information. The primary sources include legislative enactments, and judicial decisions as well as custom and traditions of the African societies. The secondary sources included book, articles by jurist, historians, philosophers and many more. Lectures, newspaper and message notes were also considered. Information obtained from these sources was subjected to content analysis
Structure of the study
This study is structured into five chapters apart from the Introduction, Conclusions and Recommendations.
The Introduction focusses on the background to the study, the statement of research problem, the objectives of the study, significance of study, the research methodology and structure of the study.
Chapter One deals with the nature of justice and its administration. From the historical perspectives to theories on justice. It will deal with the African caption of the notion of justice.
Chapter Two focusses on the administration of justice in traditional African society of the Yoruba societies. Under this heading, different factors responsible for such administration of justice shall be discussed. Ethnic, political history, and the structure of administration of justice.
Chapter Three focuses on the administration of justice in the tradition Igbo societies of Nigeria. Just like the scope of chapter two, detailed analysis of the Igbo societies shall be considered.
Chapter Four deals with the development of African jurisprudence Nature of African jurisprudence, some of African proverbs as African jurisprudence. It shall also compare the English common law concept with that of the African common law represented in African proverbs. It shall further discuss on African cultures as dictate of its jurisprudence and lastly several misconceptions of African philosophy of law.
Chapter Five is devoted to the direct implication of the study in its chapter four. The establishment of the presence of African jurisprudence is a direct consequence of the present of some lessons from mainstream western jurisprudence.
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