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African legal Philosophy
Introduction African Legal Philosophy (ALP) as a central philosophy for us as African. Like all philosophies it is still developing and evolving, but it is an important part of the decolonisation of Africa to be actively involved in this development. It is a philosophy that is older than you might think. For example, the Christian philosopher St Augustine was born in 354 CE in Algeria and we also know of the philosopher Amo who was born in Ghana in 1703.The ideas that shaped African thinking were predominately oral traditions; the written tradition is of fairly recent origin. The reason for this is of course, 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. The nature of African Legal Philosophy 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. Philosophers like Oruka have argued that African Philosophy need not follow the Western pattern in order to be regarded as philosophy. Types of African Legal Philosophy Ethnophilosophy is philosophy based on communal thought and collective wisdom that is traditionally orally transferred. Sage philosophy is to identify men in society who are reputed for their wisdom. As critical and independent thinkers who guide their thoughts and judgement by their power of reason and inborn insight rather than by authority of communal consensus. Nationalistic-ideological philosophy attempts to produce a unique political theory based on traditional African socialism. Themes in African Legal Philosophy Africa is a big continent and that is unlikely that all Africans will share exactly the same philosophy. But it is very possible to see some themes running across all various groups and cultures in Africa. These are all based on the way in which society is structured and the common features of these structures. Communitarian The community is always regarded as more important than the individual. According to this African communitarian view, members of a society have to exercise their talents and skills to the benefit of society. Talents and abilities are seen as common assets. Reconciliation African conception is based on the reconciliatory theory of law. It is the view that law is held to be a conciliatory instrument for the restoration of social equilibrium. Because social discord is so destructive, the law must seek to restore the balance. It does this through conciliation, compromise and reconciliation. Because of this reconciliatory approach, people prefer arbitration and reconciliation over litigation. Ubuntu In general terms Ubuntu means humanity, humaneness, morality and compassion. It stress conciliation, harmony through social relations within the group, self-fulfilment through taking part in the collective whole, duties towards other, caring, warmth, empathy, respect for older people who have more knowledge of life than younger one, and communication, and it emphasises group solidarity as opposed to individual interest. It condemns dog-eats-dog competition and adversarial relations. Instead of confrontation, it seek cooperation.