User:Kamogeloshelly/sandbox/African Legal Philosophy

PORTFOLIO ASSESSMENT 3 AFRICAN LEGAL PHILOSOPHY (ALP) 1. Definition [edit] Ideas that shaped African thinking have due origin. The first is oral in nature and almost and very oldi were as the second is a fairly recent version which represents the written tradition. Like other philosophies ALP is also under going its own development which has markedly been influenced by colonization. 1.1 Does the concept of African law exist? Attitudes towards African legal Philosophy [edit] In this section we look at the debates and reasons between those that argue that African legal Philosophy as a fully-fledged philosophy. a) The unwritten nature of African legal philosophy: others authors seek to discredit ALP because it does not have a written tradition but rather traces its origins from communal thinking. However, adherents of ALP argue that western philosophies also started off from communal thought and were originally not written down.  b) The acertainability of its content and substance is almost impossible. However, Idowu and others reject this argument. Idowu states that “to be ignorant of a fact or an entity does not mean that fact or entity does not exist”.ii c) African legal philosophy is but another version of western philosophies. For example, the African debate on the relationship between law and morality (discussed in the previous learning unit) tends to echo the debate in Europe and in English law. As we have seen, there are certainly similarities in the debate, but it was also clear that the debate is markedly different in the African context. 2. THE NATURE OF AFRICAN LEGAL PHILOSOPHY (ALP) [edit]

2.1 Ethnophilosophy [edit] Ethnophilosophy describes an African communal thought and collective thought which are orally preserved and transmitted like most pre-modern philosophies; Kaphagawani shows that ethnophilosophy is a combination of mysticism, metaphysical assumptions and traditional African beliefs.iii An example would be the embodiment of a philosophical concept in a metaphor.

2.2 Sage Philosophy [edit] Instead of focusing on a more formal holistic approach to philosophy, Sage philosophy rather focuses on the wisdom by certain wise people or sages in the community who are custodians of not only the survival of the community but also as “as critical and independent thinkers who guide their thoughts and judgements by their power of reason and inborn insight rather than by authority of communal consensus.iv

2.3 Nationalistic –Ideological Philosophy  [edit] Is a political theory based on traditional African socialism and black consciousness ,it is  a collection of works of African politicians how arose in the wave of independence of most African states  like Kwame Nkrumah, Julius Nyerere and Leopold Senghor. This ideology is anchored on traditional African socialism and family hood. The proponents of this philosophy argue that to be free we must be mentally liberated “and return … to genuine and authentic traditional African humanism.” 3. Major themes in African Legal philosophy (ALP) [edit]

3.1 Communitarianism [edit] Focuses on the preservation of the communal world-which takes precedence over the reality of the individual. 3.2 Reconciliation  [edit] Is a fundamental aim in the ALP adversarial system, it essentially entails “the view that law is held to be a conciliatory instrument for the restoration of social equilibrium”vi 3.3 Ubuntu [edit] Regarded by most as a huge contributer to ALP however the many challnages in finding an actual definition. However at its core as per Desmond Tutu “speaks of the very essence of being human.”vii For an example of the application of Ubnutu by the courts see S v Makwanyane and another viii REFERENCES 1. 2.