User:Fhumula/sandbox

Introduction
Law could not be law at all if the legal subject were permanently deleted from its vocabulary. Western legal philosophy regards a legal subject as a concept to be of primary importance. African legal philosophy understand the subject as a living and lived experience.

The long history of humanity in Africa is proof that Africa has had a long history of human culture and history, morality and law, legal system and other social systems which have allowed it to grow, protect and promote human life in the most hostile environment and extend the gift of human life to all other Continents of the world.

African legal philosophy is a central philosophy for Africans. Although not written, ALP has been passed down the generations through oral traditions. ALP is deduced from general African philosophy where there is a longer tradition. Like all philosophies, ALP is still developing and evolving, but it is an important part of the decolonization of Africa to be actively involved in this development.

The nature of African legal philosophy
One of the oldest debates in ALP is the question of what this philosophy is all about. Idowu identiﬁes four possible attitudes toward this. In the first place those who are from a Eurocentric viewpoint argue that ALP does not exist at all. This argument is 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.

Secondly there are those that argue that there might be something like ALP but that it's impossible to determine its content or substance because the legal rules cannot be separated from customary practices.This argument is also rejected by Idowu who higlights that “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.

The last approach to this debate, and the one we prefer, 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 refl ects on human life and nature in more intuitive ways.

Types of African legal philosophy:

 * 1) Ethnophilosophy: this is a philosophy based on communal thought and collective wisdom which is transferred orally and relies on metaphysical assumptions and traditional wisdom. In this kind of ALP, philosophical arguments and points are advanced by means of sayings and metaphors.
 * 2) Sage philosophy : Sage philosophy puts emphasis on the idea of one person. it's thoughts are based on individuals who are concerned with the ethical and legal issues of their society. A sage (wise person) is the custodian of the survival of his society.
 * 3) Nationalistic-ideological philosophy:This is mainly based on an African communalism. It is a type of philosophy that can be found in the ideas former leaders who advance Pan Africanism and it is closely related to Black Consciousness.

Themes in African Legal Philosophy
Africa consists of thousands of ethnic communities, therefore it is unlikely that all African communities will share the exactly same legal philosophy. It is possible that we see a one legal philosophy in Africa, as it has been the case in the intensive study of African Traditional Religion. This is based on the way in which society is structured and the common features of these structures. According to Waliggo the major concerns and concepts of the African legal system are:


 * 1) How to mete out justice and in the quickest manner possible.
 * 2) How to use the wise and impartial elders as the judges and the jury.
 * 3) How to prevent greater conflict and revenge in society or between communities.
 * 4) How to determine the punishment in relation to the crime committed, as viewed in their particular worldview.
 * 5) How to reconcile the conflicting parties, the offender and the victim and reestablish harmony which had been destroyed or undermined.
 * 6) How to take extra care to ensure that full justice is done to the poor and the most vulnerable of society, whose voices were not often heard in society.
 * 7) How to protect and defend society’s moral ethic and cohesion through either remedial or deterrent punishment.
 * 8) How to use exposure to public shame, the displeasure of the deities and ancestors to keep all members of society focused on its moral ethic and codes.

From the above it is clear that in ALP, law and justice, law and social justice are intrinsically united. Condemnation/sentencing is often also united to reconciliation. There is very little separating religion from social, political and economic issues.

The main themes of ALP includes:

 * 1) Communitarianism- This idea is very strong in ALP and it can be linked to African socialism. The political, social and economic arrangeents of African socialism owes its development from Russian socialism, but has developed a unique African character due to the idea of communitarianism.
 * 2) Reconciliation- In African communities, social cohesion and values is of fundamental importance, as such, ALP favors a theory of law and adjudication that is based on reconciliation, aimed at restoring social equilibrium. In African legal systems, punishment is not meted for the purpose of retribution, but for the purposes of restoration.
 * 3) Ubuntu- Ubuntu is the root of African Philosophy. The being of an African in the universe is inseparably anchored upon Ubuntu. Ubuntu means humaneness, morality and compassion, it stresses conciliation, harmony through social relations withing the group.