The Li-Fa Dichotomy And Yoruba Jurisprudence – Akin Oyebode


Introduction

The issue of moral rectitude and indeed that of what constitutes acceptable behaviour is an enduring one in philosophy. Every people and community espouse a view on the morally upright person who is, ipso facto, entitled to consociate with other members of society. The norms of inter-personal relationships not infrequently mirror the ethos and social values of a people and, therefore, define their attitudes, sensibilities and world-view. It is on account of this that it is interesting to observe some similarities in the perception and prescription of the Yoruba and the Chinese peoples who, incidentally, are differentiated by factors such as geography, language and culture.

The intendment of this presentation is to explore areas of similarity between the attitudinal chemistry and moral judgment of the Yoruba and Chinese in relation to what constitutes propriety and accepted modes of conduct. Indeed, the similarity in attitudes and moral approach among our peoples would suggest that differences in race or language should not stand in the way of friendship and collaboration, more so within the current age of globalization and shrinking of artificial boundaries between nations, peoples and cultures.

The Nature of Yoruba Society

The Yoruba people of Western Nigeria represent one of the largest nationalities in the country, with a Diaspora that extends to many countries including Benin, Togo, Ghana, Cote d’Ivoire, United States, Brazil, Cuba, Haiti, Jamaica, Suriname, Trinidad and Tobago. They number nearly 50 million people and possess an intricate, well-developed culture, typified by their rich folklore, music, dances, sculpture, arts and crafts, dressing, ethnic scarification, traditional form of government (the Obaship system), incantations, proverbs, family poems (oriki), festivals, initiation rites, literature and other attributes that mark them out as a unique people.

The cosmology of the Yoruba is centered around Olodumare (God) and the Orisha (lesser gods} which superintend over their universe and exercise overarching authority over the Oba, who is himself considered the representative of God on earth and a direct descendant of Oduduwa, the great progenitor and acknowledged founder of the Yoruba principality.

The Yoruba are the most urbanized people in Nigeria. Traditional government of the Yoruba is under the Oba who is assisted by a number of chiefs usually chosen from the various quarters in the town. Interestingly, there is a class of chiefs who select the Oba. Now, these kingmakers are also empowered to relieve a tyrannical or unruly Oba of his position by “opening the calabash.” When this happens, the dethroned traditional ruler was expected to commit suicide or be banished as punishment for his misrule and malfeasance. Thus, the checks and balances available in Yoruba constitutional law created a form of constitutional monarchy in acknowledgement of the penchant of the people for democracy and the rule of law.

Although most of what has been described above has since been overtaken by modern developments, there is a lot of merit in the view that while it is conceded that the Yoruba are only one out of the over 400 nationalities and ethnic groups within the Nigerian polity, the nuances of Yoruba political sociology have continued to impact on Nigeria’s contemporary reality.

The Li-Fa Dichotomy and its Throwback on Yoruba Jurisprudence

Before the “Legalists” came to the scene in 300 B.C., the dominant idea in China was the Confucian notion of a cosmic order of things in which, in the words of David and Brierly,  “[there was] a reciprocal interaction between heaven, earth and men. Heaven and earth observe invariable rules in their movement, but men are masters of their own acts; and, according to the way in which men behave, there will be order or disorder in the world.” In other words, there was the possibility of attaining good if man followed strict rules of behaviour, hence Confucius formulated the Golden Rule: Never do to others what you would not want them to do to you. Furthermore, he counseled moderation in all things, especially in governance.

According to Confucius,

“Excessive wealth creates haughtiness. Excessive poverty leads to envy;

envy leads to robbery, haughtiness leads to lawlessness;

this is the nature of the people. Therefore, the wise rulers institute humane

government so that the rich be restrained and not become too greedy and the poor

will then have enough sustenance and not worry about their daily food. In this way,

there is a balance between the poor and the rich. Therefore it is easy to govern and  maintain order…”

 

The five relations in society, those between father and child; husband and wife; elder and younger brother; ruler and subject; and, friend and friend were all founded on respect arising out of li or natural law. In the thinking of Confucius, “If ancient, age-old customs are not observed or (even) changed, everything would be mixed up and confusion would set in.”

Li entailed the existence of an eternal natural order underlying both the human society and the non-human world (tao). Accordingly, li is associated with moral force rather than physical force such that Confucian thought is characterized by an extremely strong feeling for the anti-thesis between moral or spiritual force and physical coercion. It has been said that “so strong is this feeling that moral force is practically equated with the good while anything associated with sanction of physical coercion is tainted with evil.”

It is contended that “within the ideal Confucian order, the institution of government would play a peculiarly restricted role and the ruling class becomes the very epitome of this moral force, radiating it to the rest of the population.” Thus, li is not a body of rules designed to take care of every exigency but an instrument for training character and nourishing moral force.

In a society where li prevails, unbridled self-interest is placed under effective control from within, as it were. Conflicts of interests are resolved through individuals yielding to one another (jang) and the necessity for litigation will be avoided.

However, in all areas where li cannot be made to apply, fa (law or force) must be employed in order to maintain order. Fa is said to be enacted law designed to keep order by appeal to the fear of punishment, that is to say, the fear of punishment or sanction of force. Thus, where the ruling class must place heavy reliance on fa, it is a symptom of its own inability to rule by li.

It has been said that

“If the people be led by laws and uniformity sought to be given by punishments,

they will try to avoid punishments but have no sense of shame. If they be led

by virtue and uniformity sought to be given them by li, they will have a sense

of shame and, moreover, will become good,”

This, presumably, is why the philosopher, Shu H’siang declared, “A state has most laws when it is about to perish.” In the words of Professor Tsao, “It is a time-honoured tradition of the Chinese to settle disputes by resorting first to Ch’ing, human sentiment, then to Lii, reason and lastly to Fa, law.”

Accordingly, it has been said that it is not that law is excluded from Chinese life, but it played a minor role. In the opinion of David and Brierly, “Law is good for barbarians; for those who do  not share the values of Chinese civilization.”

However, Han-Fei-tzu and his fellow Legalists apprehended the necessity for replacement of a government by men with government by laws. The need for entrenchment of the Ch’in dynasty warranted the establishment of permanent laws known to bureaucrats and binding on all subjects. Fa chih or rule of law introduced legal specialists who, nevertheless, occupied a relatively lowly position in the scheme of things in the later period of the empire despite their exploits of confucianization of the Criminal Code by prescribing severe penalties for crimes against the five relations. Thus, the realm of li which was previously supposed to rest on the sanction of moral force now came to receive strong support from the criminal law itself just as other areas of civil relations such as inheritance, marriage, disposition of property became pronounced and were subjected to legal regulation.

To summarize, one tends to be in agreement with David and Brierly that in ancient China, law was conceived as “an instrument of arbitrary action rather than the symbol of justice; it was a factor contributing to social disorder, rather than social order. The good citizen must not concern himself with law: he should live in a way which excludes any revendication of his rights or any recourse to the justice of courts. The conduct of individuals must, unfailingly, be animated by the search for harmony and peace through methods other than law. Conciliation was a greater value than justice; mediation must be used to dissolve the conflicts rather than law to resolve them. Law may exist to serve as a method of intimidation or as a model; but law was not made with a view to being applied as in the West. Scorn was reserved for those who aspired to regulate matters according to law or those whose pre-occupation was its study or application, and who thereby defy convention and accepted proprieties…”

Now where does all this leave us in terms of Yoruba jurisprudence?

Let me begin by stating that the Yoruba concept of the Omoluabi is reminiscent of the Chinese notion of the morally upright person who orders his life in accordance with the dictates of li. The omoluabi is well brought-up, reveres the oba and accords utmost respect to elders and those occupying a higher pedestal than himself on the social ladder. He lives according to the dictates of propriety and would be disinclined to drag his fellow-man to court since he has imbibed the idea that parties never leave the court-house to become friends. Besides, in consonance with the norms of traditional African judicial process, disputes are rather to be dissolved just like in Ancient China instead of being resolved as is characteristic of contemporary western practice. Among the Yoruba, a decent person naturally does what is expected of him in consonance with his noble antecedents in a manner not altogether dissimilar with the application of li in traditional China.

On the other hand, the Odaju or antipode of the omoluabi is a roughneck, scallywag who does not give a damn about civility or the niceties of good upbringing, Having been reared in the fringes of society, an odaju evinces little or no inclination toward finesse and propriety and has to be compelled to behave through the force of law just like fa is applied to rougher elements of Chinese society. A virtual outlaw, the odaju has to be made to fear use of force or threat of use of force to deter him from dysfunctional, anti-social behaviour.

 

The role respect for constituted authority plays in Yoruba society is not altogether different from the underlying role respect plays within the five relations highlighted by the Confucian construct. The inherently conservative Yoruba people usually evince an attitude of better the devil one knows than the angel one is yet to meet. Accordingly, the proverbs and sentiments of the people are generally directed towards maintenance of the status quo as against the allure of radical or revolutionary change.

The omoluabi in Yoruba culture exhibits a sense of shame just as in China which is totally lacking in the odaju. This sense of shame becomes the acid test of good and proper upbringing and serves as a check against misconduct. The omoluabi is perfectly conscious of ewo (abomination) and would not act in any way that would invite opprobrium and distaste from right- thinking members of society generally. Thus, public opinion rather than sanction of law is an important aspect of proper conduct within Yoruba society.

 

Conclusion

It is submitted that the extrapolation of throwbacks on Yoruba jurisprudence by the li-fa dichotomy in Chinese legal thought constitutes a useful contribution to comparative law and jurisprudence and which is deserving of greater study in order to emphasize our common humanity and establish the vitality of the different strands of various peoples and cultures  into the tapestry of human civilization.

Thank you.

 

Oyebode, Professor of Law and Chairman, Office of International Relations, Partnerships and Prospects University of Lagos, Nigeria delivered this paper to law students in China.

Source: The Guardian (November 4, 2012)

Presentation to Soochow University, China on October 23, 2012

Professor, Department of Jurisprudence and International Law and Chair, Office of International Relations, Partnerships and Prospects, University of Lagos, Nigeria

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