CONCEPTS OF SOCIAL JUSTICE IN TRADITIONAL AFRICA
by Alyward Shorter
INTRODUCTION
Generalizations about traditional Africa are always dangerous because of the distances of time and space that are involved. How far, for example, does " traditional Africa " co-exist with " modern Africa or is it wholly a thing of the past? The question is a difficult one. One cannot deny that there are many threads of continuity, linking the past with the present, the old social order with the new, but how important are the elements of discontinuity? One of the assumptions behind this paper is that the discontinuities are of diminishing importance and that traditional concepts survive because they find a new dimension and a new application in the modern situation. Traditional Africa " is now history, mainly oral history, but that does not mean to say it can be ignored. On the contrary, to recognize traditional concepts and to understand their workings in the modern Africa, it is first of all necessary to see them as part of a political and social order which no longer exists in its pure form. That is largely what we shall be doing in this paper.
Again, one cannot speak and write about Africa as if it were a single, homogeneous society, or even a series of isolated, ethnic groups, all basically similar or comparable. On the contrary, Africa is (and was) socially and culturally very fragmented indeed. To begin with, there are very diverse physical environments, to which the various human groups have adapted themselves economically and socially in relative isolation. Then, again, there has been no uniformity in these adaptations, but rather a multiplicity of independent traditions and inventions even in the same, or similar, environments. The different traditions and Systems have, moreover, been modified in different ways, according to the impact of historic personalities and the historic contact between ethnic groups. The result is a bewildering variety of social and political systems, of languages, cultures and religions.
In spite of this discouraging pluralism it is possible to discern certain regularities. This is principally because of the extraordinary flexibility and absorbability of traditional African societies, which exchanged ideas and practices over wide areas without the need for great movements of peoples, conquests or reforms. Local cultures accepted ideal on their own terms, integrating them into their own systems of thought and symbolism. The consequence of all this is that, while there is no single concept of social justice which can be called universally African, there are a number of differing experiences which have a relatively wide currency. These experiences relate to different social levels: the family community and the political structure; and to the different styles of life dictated by the various environments and cultural traditions.
Before dealing with these different social experiences in turn, it is necessary to describe the operation of "justice " and " law " in pre-industrial societies in very general terms. This will provide a background for all that follows.
JUSTICE AND LAW IN PRE-INDUSTRIAL SOCIETIES
Notions of Justice and Law ate bound up with the notion one has of society and the purpose of society. In many African societies, particularly, it would seen those of Central Africa, the experiences of society as a clearly bounded group strongly outweighs the experience of ego-centred networks of personal relationships! (1) In such situations the stability and continued existence of the group is a much more important consideration than the rights of the individual. Individual identity is derived from group identity, and group identities establish themselves at different levels of interaction between groups family communities, clans, villages, chiefdoms, sub-tribes and larger political entities. Witch-hunting is a characteristic feature of societies that are strongly group-centred, and, indeed, anyone who places himself outside the life and normal working of the group constitutes a threat to the whole group.
In other types of traditional society a more even balance is struck between group and network. In settled societies there may be an over-lapping of groups and multiple allegiances on an individual basis to professional guilds and associations. Mobility is another important factor, and pastoral societies may be more person-oriented on account of seasonal movement. Some pastoral societies are continually regrouping in the cattle-camps and pastures and personal relationships, such as bond-friendship or the blood pact, may he important principles of association. Among hunter-gatherers with the minimum of social structure, both group and personal network may he equally weak. In such situations, there is a great measure of spontaneity in personal relationships and a reliance on personal attitudes rather than on formal or specific norms of behaviour.
Throughout traditional Africa there were no codes of positive law, and society did not make laws " in any literal sense. Decisions concerning social control, and collective decisions taken for the good of the community, were based on cases or precedents. Custom was the guide to present action. However, that did not mean there was no possibility of change or adaptation. On the contrary, there was considerable flexibility, even when the appeal to tradition was made in the form of myths and other forms of oral tradition. Students of mythology are acquainted with the idea of reversible time through which present shifts in needs and relationships are invested with an aura of antiquity. Myths are much more of a charter for the present, than an accurate document about the past.
On the whole, justice in the pre-industrial societies of Africa was devoid of vindictiveness, and there was scarcely an idea of retributive or deterrent justice. Persons caught in flagrante delicto, in the act of theft, for example, or in the act of adultery, might receive immediate punishment, but past crimes were rarely followed tip and there were hardly any penal institutions. Legal action was initiated in most cases by private individuals, supported by a primary group. In spite of that, the idea of crime as an anti-social act certainly existed, and it was the concern of authority in society to restore and promote social relationships. Reconciliation and the restoration of social harmony were the objects of judicial proceedings, not retribution. Hence the importance attributed to compensation, and even ritual feasting as the outcome of a process of reconciliation.
Social justice, in traditional Africa, was also intended to contribute to social stability, and harmonious relationships within the ethnic group, and the lesser groupings of which it was composed. The expectations of the individual were largely dictated by structures, relationship patterns and roles. Social justice, therefore, implied conformity to these things. Each individual was given his due within the scope of his expectations, and in the framework of a hierarchical or highly structured society. Distribution was made to people according to rank, status or function, and although there were no classes in the strict economic sense, there were social strata defined by age and achievement. African traditional society was communitarian, but it was not strictly egalitarian. Egalitarian ideals in modern African socialism, therefore, are developments of traditional concepts under the light of Islamic or Christian egalitarianism. (2)
From the foregoing it is clear that in many traditional African societies the individual was deemed to have any rights over against the community of which he was a part, but it is equally clear, at the other extreme, that in certain other societies, notably those of pastoralists, the individual enjoyed rights peculiar to himself, but was extremely limited in the degree of social support he could expect to help reinforce them against other individuals. A crucial question, therefore, in this paper is: How were decisions affecting social justice arrived at; and if it was the people in power who took the decisions, how representative was the exercise of this power?
THE SEXES
Before turning to the family as a whole, it is worthwhile to look at the more basic question of the relationship between the sexes in traditional Africa and the equality or inequality of status accorded them. (3) Early anthropologists, influenced by evolutionary theory, believed that the status of women in any society was an index of civilisation, and that the more remote in time or space a society was from 19th century Europe, the lower was the status of women. They painted a fearful picture of the lot of women in primitive societies, including such practices as formal infanticide, marriage by capture and, in general, the treatment of woman as a chattel. Modern studies have proved the early anthropologists wrong. The status of women in traditional Africa was much higher than they imagined; and if women were still at a disadvantage, it was pointed out that nowhere in the world did women really enjoy complete equality or inequality, when women had no apparent ambition to do the things that men did, and men had no ambition to do the things that women did. It may be that the areas of greatest inequality were of the least importance to women. However, criteria of some kind must be used and it is easy enough to ascertain that less compensation was paid for the murder of a woman than for a man, that women relatives received a smaller share of the bride-wealth for a married daughter than the male relatives.., that women could not initiate divorce, that women had practically no public1 political role and that there was an inequality in the moral standards demanded of men and women an inequality giving greater freedom to the male. It has also been noted in some African societies that women are more frequently accused of witchcraft than men, a situation which arises -- at least in part - because the men make the accusations, and preside over the courts at which the cases are heard. On the other hand, in spite of these disadvantages, there are other areas, such as motherhood or the role of bride, where the women as woman received a high status and extensive rights.
In traditional Africa the sexes could not compete for the same occupations. This was largely because their roles were differentiated according to their physical constitution. A woman (and a man for that matter) could not refuse to marry. Child-rearing and motherhood were the occupation of every woman and the length of lactation, coupled with the desire for large families meant that the woman was not free for social or political activities outside the family circle. In a pre-industrial society, moreover, there were no professional or other occupations in which women could compete with men. The occupations of both men and women were [inked with their familial roles, differentiated by sex and there was a very clear-out sex division of labour.
Practically, the only areas in which men and women competed with some equality were those which could be termed " religious or occult ". One could find both women and men as specialists in spirit possession societies, as 'custodians of holy places, priests/priestesses. Sexes were probably on an equal footing there because these situations were exceptional, religious or ritual situations. This was very clear when twins and parents of twins could, on ritual occasions, break the taboos of sex division and mutual exclusiveness of the sexes. Ritual officers and rulers also sometimes went in for this cross-sexual symbolism.
Traditional social structures and symbolic classification reveal on attitude to the sexes in Africa, based on the idea of complementary opposition. Very often, too, in the traditional biological theory, the woman was assigned a completely passive role in procreation. The difference between the sexes was always emphasised and it was on this difference that complementarity was based. We do not find anything approaching the one flesh " idea in traditional African marriage. The idea that male-female opposition was part of the constitution of every human being, be he male, or be she female, was unheard of. (4) So was the idea, present in the Book of Genesis, that each sex represented mankind as a whole, and that the quality of being human was not tied to one sex only, or to both in conjunction. Sex distinctions were regarded as absolute and externalized in physical difference. There could be no theory of marriage, therefore, in which the mutual interiorization of persons of different sexes took place. The nearest approach to it was when, as in the case of the Luguru of Tanzania, the blood-pact was a part of the marriage ceremony itself, or when, as in the case of the Cewa of Malawi, the blood-pact was an optional seal on a marriage that had already lasted many years.
In spite of all that has been said about the inequality of women with men, the woman was accorded high status in traditional Africa from the point of view of motherhood and potential motherhood. The concept of motherhood was very important indeed and one of the most important relationships was that of mother and son. The mother was the effective symbol of life and motherhood was bound tip with the existence of the human individual. The honour accorded to the mother everywhere in traditional Africa was remarkable and fatherhood was not really honoured in comparable fashion. The bride, as the precious gift through which a family group perpetuated its existence, was equally honoured in the marriage ceremonial.
Obviously, in the modern situation, when there is increasing equality of education and opportunity between the sexes, and when science and child-care have reduced the need for lengthy periods of breast-feeding, and have begun to limit families, there is considerable tension between old and new outlooks on the relationship of the sexes to each other. It is more than ever essential that women be esteemed not simply as women, but as human persons.
