Positivists’ separability thesis reconsidered: Perspective from African legal theory

Abstract

One major element of the push and pull of contemporary jurisprudence is the controversy between positivism and naturalism on how best to conceptualise and, thus, problematise the exact relation between law and morality. Termed the Separability-Inseparability debate, this article attempts a re-examination of positivists’ Separability thesis from the perspective of African legal theory. The paper discovers that contemporary positivism is divided between the exclusivists and inclusivists over the precise relation between law and morality. The paper argues that the Separability thesis is incompatible with African philosophy of law going by the fact that jurisprudence in most of the African society has the flavour of a reconciliatory, humanistic and communalistic orientation which makes it expedient, in such societies, to define the relationship between law and morality as a complementary one rather than separable.