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AFRICAN LEGAL PHILOSOPHY

African thinking was a principally oral tradition until recently that we now have a written tradition of African legal philosophy. African customary law and the court system were largely unwritten. After the colonization of Africa, her unwritten ideas were replaced with those of the colonizers and that it led to under development of African philosophy. During that period, African lawyers and academicians were trained in the laws of the colonizers and this is resulted to Africa having a mixed legal system consisting of European laws and African customary law.

What is the nature of Africa legal philosophy?

There are different attitudes towards what African philosophy is and in answering it, Idowu identifies four possible attitudes: The first attitude is that of the Eurocentric who are of the opinion that ALP does not exist because it is largely unwritten. Kaphgawani response to that is that some Western philosophies also came from communal thought and were originally written down. Other African philosophers argued that the continued survival of African societies indicates the presence of sophisticated concept and ideas. The second argument are those who contended that assuming there is ALP, it will be difficult to determine its content or substance. Idowu rejects this argument and responded that to be ignorant of a fact or an entity does not mean that fact or entity does not exist. The third attitude are those who are of the view that assuming that there is such a thing as ALP, it is not different from Western legal philosophy. It was argued that even though there might be similarities between ALP and Western legal philosophy, there are also remarkable differences. The last one is that there is a distinctive African philosophy of law. Philosophers argued that African philosophy does not have to follow the Western pattern in order to be regarded as philosophy its approach differ because it reflects on human life and nature in more intuitive ways.

There are three types of African legal philosophy

Ethnophilosophy This is based on communal thought and collective wisdom that is traditionally orally transferred. It is more of metaphorical in nature and mysticism while reason and critical analysis takes a back seat.

Sage philosophy This is the opposite of ethnophilosophy. It is based on idea of one person. A sage is the custodian of the survival of his society and is responsible for addressing fundamental issues relevant to their society. They play both the political and social role.

Nationalistic-ideological philosophy This tries to produce a critique political theory based on traditional African socialism. According to this theory, African philosopher have a political role to play.

There are three themes of African legal philosophy

Communitarianism This idea is very strong in ALR. In political theory it is tied to what we can call African socialism. This view is based on the importance of family in African society and conflicts are usually resolved and peace restored among members of a community. Every member of the community act in the interest of the community.

Reconciliation ALP theory of law and adjudication is very different from Western concept. Western concept is dominated by the adversarial nature of legal proceeding, while the African conception is based on the reconciliatory theory of law. This idea is also present in the theory of punishment, punishment is not for retribution but for restoration or the promotion of fair order. The reconciliatory law also has an element of what is called humanism.

Ubuntu Ubuntu means humanity, humaneness, morality and compassion. It stresses reconciliation and harmony through social relations within the social group.