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African Legal Philosophy

What is Philosophy?

You have often heard a person exclaim, “Why was I born?” Although such an exclamation seems petty at that moment, it is actually a philosophical question. Philosophy deals with two basic questions namely why do things exist and how do we know this? Using reason and logic we can arrive at a philosophical answer to these questions by understanding the sources and goals of law as well as where such concepts can be found in a legal system.

There are many legal philosophies in the world such as Natural Law, Legal Positivism, Critical Theories and African Legal Philosophies. This article will emphasise the subsistence of African Legal Philosophy. African Legal Philosophy is an African culture that has its own cultural foundation. What is law, how it is thought, interpreted and applied is based on the boundaries of African culture.

What is the nature of African Philosophy or Why does it exist?

African Legal Philosophy is older than we may think. This philosophy is predominantly an oral tradition and existed before, during and after colonisation. It is only recently that African Legal Philosophy started becoming a written tradition. A family unit comprises the unborn, living and deceased or ancestors, therefore this philosophy contains human law and divine law or ancestral intervention – an element of Natural law.

There are some people who believe that African Legal Philosophy does not exist as it is not a written tradition and it entails communal thinking. Some individuals believe that there is something existing just like African Legal Philosophy but it is uncertain as there is no legal system to base this philosophy. Others believe that African Legal Philosophy does exist but it is the same the Western Philosophies. Finally, there are some who believe that African Legal Philosophy is a distinct legal philosophy based on its outlook for human life, striving for independence and its post-colonial African identity. This is version of African Legal Philosophy which we prefer.

African Legal Philosophy stems from 3 broad methods

Ethnophilosophy: Traditional sayings or teachings are based on communal thought and wisdom. These sayings form the basis of law and is transferred by oral tradition from generation to generation.

Sage Philosophy: A wise or learned man such as a Chief, who is capable of making decisions for the community. He is reputed for his wisdom, whose thoughts and judgement are guided by reason and inborn insight therefore playing a political role in society.

Nationalistic Ideological Philosophy: Entails a political role based on traditional African values in society and familyhood.

How do we know that African Legal Philosophy exists?

The following themes in practice illustrates the existence of African Legal Philosophy:

The practice of communitarianism entails giving the community more importance than the individual. Community goals and values are unanimous and are promoted by the law. Skilled and talented members of the community must use their expertise to benefit the community. Conflicting situations in the community must be resolved in order to maintain balance, failing in which, may render the community destructive.

The practice of reconciliation entails that the law and the adjudication process aims to restore the balance in the community hence punishment is not personal. Fairness is determined by the status of the parties and the offences committed by the individual attracts punishment for the entire family concerned.

The practice of ubuntu as a philosophic concept denotes a way of life of a person in relation to his or her group. The following concepts affirms the existence of an African Legal Philosophy: Communitarianism gives utmost importance to social relationships. By example, children must respect their elders and elders must take care of children irrespective of their relation. A crime committed is committed against the community rather than against the victim. Reciprocity enforces obligations and fulfilment of obligations between family members, neighbours and the community at large. Ubuntu is relational in nature and gives effect to the Batho Pele principles of people first in the public service delivery sectors. It further emphasises physical reality which involves a person guilty of a crime apologising to the community and victim rather than seek forgiveness from God. Lastly reconciliation and consensus allows for anyone who disagrees with consensus is welcome to leave and start their own group.

African Legal Philosophy is an oral tradition which makes you wonder that it existed from the time the first humans could speak! Whilst diverse in application throughout the African continent it is central for all Africans. Like all philosophies, African Legal Philosophy is still evolving and developing.

Notable African Philosophers

William Indowu; Okafor; Agbakoba.

See Also

Natural Law; Legal Positivism; Objectivist Theories; Post Modern Theories; Critical Legal Theories; Critical Race Theory; Critical Legal Studies; Critical Gender Theory

References

Kroeze IJ Legal Philosophy Only study guide for LJU4801 (Pretoria: 2017)

Murungi J “An Introduction to African Legal Philosophy” https://philpapers.org/rec/MURAIT-5 (date of use: 13 April 2020).

Further Reading

Silungwe CM “On ‘African’ legal theory: a possibility, an impossibility or mere conundrum” in Onazi O (ed) African legal theory and contemporary problems: Critical essays (Springer Dordrecht 2014)

DN “What is African philosophy?” in Coetzee PH and Roux APJ The African philosophy reader (London 1988)

Oruka HO Philosophy, humanity and ecology (ACTS Press Nairobi 1991)

Njoku FOC Development and African philosophy: a theoretical reconstruction of African socio-political economy (IUniverse Lincoln 2004)

Idowu W “African jurisprudence and the reconciliation theory of law” 2006 Cambrian Law Review