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African Legal Philosophy

African Legal Philosophy ALP, it is believed has originated from African culture and traditions. Like other philosophies it is still developing and evolving. African legal philosophy is an important part of the decolonisation of Africa to be actively involved in this development.

The written tradition of African legal philosophy is even more recent. African experiences were previously predominantly oral traditions. Until recently since they transformed to written tradition, which was as influence by colonisation. In most of Africa the customary law systems and courts were replaced with those of the colonisers and African lawyers and academics were trained in the laws of these European countries.

That meant that neither the African legal system nor the accompanying philosophy was developed. Therefore, what we now regard as ALP is deduced from general African philosophy where there is a longer tradition. It is also true that there are very few sources on ALP from South African scholars and, for the most part, we rely on writers from other parts of the world.

Africa, like other countries, is a very big continent! Just as there are many European legal philosophies, there are many African legal philosophies. Almost all African countries have the problem of a mixed legal system, consisting of European laws and African customary law, but the rules will differ from one country to the next. Moreover, the different tribal customs and cultures will affect how the philosophy develops.

In the first place there are those who, from a Eurocentric viewpoint, argue that ALP does not exist at all. This is mostly based on the fact that ALP does not have a written tradition and has its origin in communal thinking. Kaphagawani has responded by pointing out that some Western philosophies also came from communal thought and were originally not written down. Consequently, African philosophers reject this idea and point out that the continued survival and thriving of African societies indicates the presence of sophisticated concepts and ideas.

In the second place, some argue that there might be something like ALP but that it's impossible to determine its content or substance. Legal rules in Africa are indistinguishable from customs and, therefore, there is no legal system on which to base a philosophy. Idowu rejects this argument because, "to be ignorant of a fact or an entity does not mean that fact or entity does not exist".

The third attitude towards this is that there is such a thing as ALP but it is not really all that different from Western legal philosophy. Clearly the nature of African law and African society will make a difference in how this philosophy would respond.

The last approach to this debate, is that there is a distinctive African philosophy of law. Philosophers like Oruka have argued that African philosophy need not follow the Western pattern in order to be regarded as philosophy. But it is different in the way it reflects on human life and nature in more intuitive ways. ALP will give expression to the desire for independence, authenticity and a post-colonial African identity. What is being put forward now is a diverse and alternative reality, while the narrative (storytelling) element in African philosophy is increasingly emphasised.10