Africanizing African Legal Ethics

John Murungi

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000762549
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

This book is a philosophical inquiry into indigenous African legal ethics, asking what is African about African legal ethics?

Taking us beyond a geographical understanding of Africa, the author argues for an African legal ethics that is distinct from non-African African legal ethics which are rooted in Euro-Western constructions. De-silencing African voices on African legal ethics this book decolonizes the prevailing wisdom on legal ethics and broadens our understanding of how law in Africa bears on ethics in Africa or, conversely, on how ethics bears on law in Africa.

This book will be of interest to scholars of African philosophy, philosophy of law, and legal ethics.

Chapter 1

Thinking about African African legal ethics

Is there an African way of thinking about legal ethics – a way of thinking that is different from other ways of thinking about legal ethics? If there is such thinking it would lead to and would be inspired by an African African legal ethics, or it would be based on such an ethics. Moreover, it should not be forgotten that, in thinking, but not only in thinking, human beings display who they are. If this is granted, thinking about African African legal ethics is as the theater where being African is constituted and disclosed. It is what one thinks about law, ethics, and their connection. Both law and ethics are about being human and so is there connection? The province of legal ethics is the province of being human. It is in this province where thinking about African African legal ethics is constituted and disclosed.

There are those who may be tempted to claim that there is only one universal way of thinking about legal ethics and that any other way is erroneous and a distraction. The seductiveness of this claim may rest on the belief that only one universal way of thinking makes it possible to bring thinking about legal ethics under the umbrella of reason. Reason, moreover, it is assumed, embodies the universality that is essential to the integrity of thinking. If this position on thinking about legal ethics is legitimate, one must avoid the error of confusing the parochial with the universal, or the contextual with the universal. Among us, there are those who either out of ignorance or out of ideological reasoning court this confusion. Moreover, if one were to engage in a universalistic thinking, one would be doing so from a specific context. Thinkers think in their contextuality. The affirmation of an African way of thinking about legal ethics inevitably embraces an African context, which itself should be understood as a context among other contexts. Moreover, it should not be forgotten that there is no context that has frozen boundaries. Every context is horizontal. It is in their contextuality that thinkers encounter each other. Thinking is native to the thinker. Otherwise, one becomes vulnerable to a spurious missionary activity launched by those who seek to illegitimately universalize their context.

To think is not necessarily to have an object in front of ourselves. If thinking inevitably calls for an object that is thought, how would we be able to think about ourselves? For, to think about ourselves we would have to be transformed into objects, thereby transforming us into what we are not. The thinker and the thought would merge into one, and there would be no thinking. Clearly, since we think about ourselves, we must turn to a thinking that dispenses with subject-object thinking, for it is only such a thinking that would be fruitful, but fruitful in an extraordinary sense. It is such a thinking we must turn to if we are to appropriately think about African African legal ethics. A thinker cannot divorce himself or herself from what is thought.

The claim that there is an African way of thinking about legal ethics (an African African way of thinking about legal ethics) does not preempt others from thinking about legal ethics in their own ways. In a sense, it serves as a prophylactic to prevent the harm that may arise from paternalistic thinking about legal ethics. The colonization of Africans has made them vulnerable to this paternalism. A part of the African African way of thinking about African African legal ethics entails decolonization of the thinking about African African legal ethics. Thinking this way sets this thinking apart from the thinking about African legal ethics that is dominant in the colonizer’s world, in a neocolonial world. Let it not be forgotten that thinking about legal ethics is history-sensitive. The peoples who make up the human community are not all historically similarly situated. Their thinking is bound to differ. Much also depends on the societal and cultural context of the thinker. But it is not to be forgotten that contexts are not like lone stars in a cloudless night. They intersect with each other and this is increasingly becoming the case. To think today is to think inter-contextually. Cabral reminds us of an African saying, “Rice cooks only in a pot.”¹ The human community has many pots and each sector of this community has its own pot where it cooks its own rice. What is not to be forgotten is that there is a pot of all these pots where each pot is located, where each pot is a human pot. A rice cooker who ignores this pot of pots will end up with uncooked or poorly cooked rice. Not to ignore this pot, the cooker does not have to abandon his or her own pot, for there is no pot outside the pots. It is a matter of recognizing that every cooker’s pot jointly constitutes the pot of pots: many pots in one pot, or one pot in many pots.

As I was reflecting on what I want to say about African African legal ethics, I was reminded of the following nineteenth-century piece written in a United States paper regarding a common perception of the thinking that distinguished a lawyer:

An old lady walked into a lawyer’s office, lately, when the following conversation took place:

“Squire, I called to see if you would like to take this boy and make a lawyer of him.”

“The boy appears rather young, ma’am. How old is he?”

“Seven years, sir.”

“He is too young, decidedly too young. Have you older boys?”

“Oh yes, sir, I have several: but we have concluded to make farmers of the others. I told my husband I thought this little fellow would make a first-rate lawyer, and so I called to see if you would take him.”

“No madam, he is too young yet to commence the study of a profession. But why do you think this body may better calculated for lawyer than your other sons? What are his particular qualifications?”

“Why, do you see, sir, he is just seven years old today. When he was only five he would lie like the devil; when he got to be six, he was sassy and impudent as any crittur could be; and now he will steal everything he can lay his hands on. Now if he ain’t fit for a lawyer, I would like to know what he would have to learn?”

“Pretty well educated, I should think.”

– Fit for a lawyer

Nebraska Adventurer 1835

I surmise that the conception of a lawyer the old lady has in mind is typical of how lawyers are viewed today in many parts of the world. One may think of this conception of lawyering as ethically offensive in that it ignores and dispenses with moral or ethical considerations in lawyering. But it could also be said that thinking of it as such does not matter in conventional lawyering and taking it seriously may undermine lawyering since in the Euro-West, it is conventionally believed that a lawyer is a lawyer and not a moralist or an ethicist. Or put differently, there are two types of moralities: the lawyer’s and the non-lawyer’s. Since, apparently, the lawyer and the non-lawyer live in the same world, conflict is likely to arise. Instead of seeking a resolution to this conflict, what the conventional lawyer often does is to ignore the non-lawyer’s morality. He or she must anesthetize himself or herself. Such anesthetization is what constitutes conventional legal education not only in the Euro-West but also in some other territories of the world that have fallen prey to conventional Euro-West legal thinking. In this education, one is socialized to think like a lawyer. One must cultivate a legal mind – the legal mind. A reinforcement of this conventional Euro-Western formation of a legal mind was called to my attention in a quote by an American student of law.

If you think that you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind.²

It is not an exaggeration to point out that this quote is fashionable in American legal education and in every other legal education that is embedded in an adversarial legal thinking. It has a distinctive place in European legal education. To be sure there are notable exceptions that include a Marxist legal thinking that takes the class-nature of legal thinking seriously, and there is feminist legal thinking that exposes the patriarchal nature of legal thinking. There is also critical race theory that exposes the racist nature of legal thinking. If this type of legal education is brought up in an inquiry into African African legal ethics, what must be noted is that both American and European conventional approaches to legal education have played and still play a significant role in the formation of African legal education. They must be considered in laying down the foundation of African African legal education and in African African legal ethics in particular. A legal mind in the sense expressed above has been commodified and has been placed in the marketplace of legal education, and the principle of caveat emptor applies here. The designing of this marketplace and the selection of the commodities put into it is not wholly in the hands of Africans. If Africans do not keep their eyes open, they may end up buying what is self-harming. African African legal thinking is an existential necessity and not a luxury.

One cannot think about African African legal ethics meaningfully if one thinks about it from the standpoint of a Supernatural Sparrow. A Supernatural Sparrow defies earthly gravitation. It eternally flies without landing on earth. No one has ever seen it, and no one will ever see it. A human being is deprived of non-earthly eyes and, consequently, of non-earthly seeing. When one thinks about a Supernatural Sparrow, one engages in thinking that is purely imaginary – a thinking that does not bear fruit except in one’s imagination. This is precisely the kind of thinking that is central in the thinking of a lawyer that is called to our attention by Powell. It is a thinking that is the staple diet for those who embrace objectivism in legal thinking or in thinking about legal ethics. An objectivist attempts to think from the standpoint of a Super Sparrow. As said above, it is a thinking that bears no real fruit. It thinks about what cannot be thought. To counter this kind of thinking, there are those who are tempted to turn to subjectivism. In subjectivism, one seeks to lock oneself within oneself but, in doing so, one inevitably recognizes the existence of others from whom one seeks to shield oneself. In other words, it is absurd to be a subjectivist. Moreover, succumbing to this temptation is counterproductive. One is held hostage to a binary thinking (objective-subjective thinking) – a thinking that is equally abstract and that is divorced from lived-thinking – the thinking that is presupposed by binary thinking. Lived-thinking is rooted in the lived-world. It is a primordial thinking in which the thinker and what is thought blend into each other and in which each gives birth to the other. It is also a thinking that is rooted in the lived-body – the body that is earthly.

Unlike a Super Sparrow, a real sparrow is encountered and seen with earthly eyes and, to be seen this way, it has to be earthly. Regardless of how high it flies or how fast it flies, inevitably it returns to the earthly existence which is its natural home. Real seeing is earthbound. One sees from earthly anchorage and sees what is earthbound. Like a real sparrow, a human being is earthbound. His or her seeing is equally earthbound. To be earthbound is to be bound significantly. The earth itself is significant. It is a sign. As earthbound, human beings too are significant. A sign calls for deciphering. In part, this is an activity of thinking. To properly undertake this activity, thinking must be viewed as significant. Thinking is a sign that calls for deciphering. In thinking of thinking this way, one is no longer a logician. One is no longer thinking in lifeless symbols. This is a thinking that dispenses with the symbols of logic. It is an animated thinking – what we have referred to as lived-thinking.

How one thinks about African African legal ethics matters. One cannot think about it from a vacuum or from a neutral standpoint, for such standpoint can only be occupied by the proverbial un-situated God who allegedly thinks simultaneously about everything from everywhere at the same time. Although perennially tempted to think from such a standpoint, human beings are eternally deprived of such possibility. The standpoint remains a product of human imagination and stays there. When taken as real, it exemplifies human hubris or ignorance and leads to absurd, tragic, and harmful consequences.

A legal mind, it is assumed, presents to us not only what a lawyer is but also what a lawyer takes to be law. Law, after all, is law as thought. The observation Powell calls attention to forms an insightful background to what I want to say about African African legal ethics. Legal ethics is what it is as it is thought. If one substitutes “an ethical mind” for “a legal mind,” it can be said that if you can think about a thing inextricably attached to something else without thinking about the thing it is attached to, then you have “an ethical mind.” Moreover, if one substitutes “Africa” for such “an ethical mind,” it can be said that if you can think about a thing inextricably attached to something else without thinking about the thing it is attached to then you have “an Africa.” In short, if you think you can think about African African legal ethics without thinking about what this ethics is inextricably attached to, you are thinking an absurdity. Such an ethics does not exist and, consequently, you are not thinking about anything. What African African legal ethics is inextricably attached to is African social/cultural historical existence.

Africa is more than a geographical territory, and what is more cannot be excluded when one is thinking about African African legal ethics. Social/cultural historical existence is intrinsically a part of what Africa is. To ensure that thinking about African African legal ethics is not extricated from what it cannot be extricated from, it must be guided by a thinking that is rooted in African social/cultural historical existence. It must emanate from it and dwell in it – not passively but as a constitutive agent of this existence. It must open a social/cultural historical African path – the path from which and within which one must think about African legal ethics. In addition, thinking about African African legal ethics in this context cannot be cut off from thinking about legal ethics in non-African contexts of legal ethics. Conversely, thinking about legal ethics in non-African contexts cannot be cut off from thinking about legal ethics in an African context. Although these contexts are embedded in their respective social/cultural historical existence, all legal ethics contexts are inextricably intertwined. That is, ultimately and inevitably thinking in African African legal ethics must engage thinking in non-African legal ethics. Conversely, thinking in non-African legal ethics, ultimately and inevitably must engage the thinking that is emanating and guiding African legal ethics. This is necessitated by the kind of world we live in today. The gap between Africa and the rest of the world is increasingly narrowing. The gap that separates one legal ethics from others is increasingly narrowing. The narrowing is yet to be thought through, and one of the reasons that this is the case is that what is implied by this narrowing is still unfolding. There is also an unresolved problem in distinguishing false narrowing of the gap from true narrowing of the gap. The former narrowing is a planetary imposition of the thinking about legal ethics that is associated with the legal mind that Powell speaks about. The latter reflects a recognition of the diversity of the contexts of legal ethics and recognizes the inevitability of their interpenetration.

The belief that there is a mind that can think without thinking about that to which it is inextricably attached is deeply and broadly rooted in the Euro-Western cultural industry of ideas. In this industry, the concept of “mind” which also goes by the name “reason” has taken on a Euro-Western sense. Descartes’s notion of a mind that is disengaged from everything else appears to have had a prominent place in modern Euro-Western thinking about thinking.³ The modern Euro-Western substitution of reason for mind has led to a version of reason that shares the same attribute with a Euro-Western conception of mind. For centuries, “reason” has enjoyed a long reign in Euro-Western thinking. It has guided Euro-Western understanding of law as well as the Euro-Western understanding of ethics. In short, it has guided Euro-Western understanding of legal ethics. Saint Thomas – an important figure in Euro-Western jurisprudence – thinks of law as “nothing else than an ordinance of reason for the common good, made by him who has the care of the community and promulgated.” Evidently, those without reason cannot have a conception of law and cannot on their own intelligently obey it. Among them, modern Euro-Westerners have included Africans. Africans are projected by modern Euro-Westerners not only as being furthest removed from reason but also as anti-reason. The exclusion was evident in the way that Euro-Westerners understood and treated Africans at the initial encounter with them. In colonized Africa, the common good Aquinas speaks about did not include the African good, and the community that was served by law did not include Africans. The common good that Euro-Westerners had in view was exclusively a European good, and the community they had in view was similarly an exclusively European community. The enslavement and colonization of Africans were a testament to such exclusion. It should not be forgotten that both the enslavement and the colonization of Africans were legal. This was the case not only regarding Africans but also regarding any other group of human beings who fell victim to the European colonial-imperial regime. In the eyes of Europeans, this regime was the regime of the ordinance of reason. It was not a violation of law. It stood for the rule of law. Apparently, in Euro-Western thinking, if one is to speak about legal ethics from the standpoint of reason, one must do so in the context of the European view of reason. Let us explore further what reason meant for Aquinas to get a deeper and broader sense of what was in store for Africans under the European regime of reason – a regime under which European conception of legal ethics fell. This must be taken into consideration to help us appreciate the struggle that must be waged to bring African African legal ethics into relief.

For Aquinas, reason is what distinguishes a human being from other beings. Strictly speaking, those without it are not human, at least, not fully human. This conception of reason appears to have been derived from Aristotle. It is he who claimed that man is a rational animal. However, it should not be assumed that what Aristotle meant by reason is what Aquinas meant or understood by reason. For centuries, the difference has been deeply buried beneath Euro-Western consciousness. Aristotle, it must be remembered, was not a Christian. When he flourished there was no Christianity. Jesus was yet to be born. Aquinas comes after Aristotle. He was a Christian theologian and, strictly speaking, his conception of reason was not derived from Aristotle or from the Hellenic industry of concepts. In Aquinas, the Hellenic conception of reason was Christianized. Reason ceased to be Hellenic. In Christendom, a new sense of reason emerges. Reason was baptized. That is, Aquinas, as has been the case with many other Euro-Christian friends of reason, propagates a Christianized view of reason. The ordinance of reason that he uses to define law is, ultimately, a Judeo-Christian ordinance – an ordinance inscribed in man by God when he created him. Ultimately, it is a Divine Ordinance. In other words, reason is a divine spark placed in man by God. What is contrary to divine will is not an ordinance of reason and it has no force of law. Without this force, it is not law. Moreover, reason – the Divine spark placed in man, apparently – is assumed by Christians to be the same in all men, everywhere, and throughout history. There is no evidence that Aquinas and Christian theologians included Africans as a part of the men in whom God planted reason. In the eyes of Christian theologians, Africans were heathens and were...