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African Legal Philosophy attempts to understand the nature of what exists and such understanding is found when asked in the context of Africa and her people. African Legal Philosophy (herein referred to as ALP) therefore takes an ontological approach. This essay attempts to explain ALP by exploring the position of the philosophy, the different types and characteristics of ALP as well as a brief discussion on one of the most important concepts of ALP: Ubuntu.

In order to understand what ALP is, it is helpful to first understand its main characteristics. Religion, ethics, customs and laws are closely intertwined in ALP and often each one determines the other. Okafor states that “African positive law and the entire legal experience have metaphysical foundations”. The first of the main characteristics of ALP is that of communitarianism, otherwise known as African Socialism. This entails that the good of the community precedes the needs of the individual. This principle of solidarity ensures social cohesion in the community. The second identifiable characteristic is that of reconciliation. Given the communitarianism characteristic mentioned above, reconciliation implies that the law is tasked with restoring the equilibrium of the community through reconciliatory means. Fairness, in this context, is based on the status of the person seeking it in their society. The third and perhaps most important characteristic of ALP is Ubuntu. Ubuntu focuses on the humanity, humaneness, morality and compassion within a society and seeks out cooperation from its members. This group-centered individualism is a way of life that is focused on the components of communitarianism that leads to reciprocity (e.g. the younger members of a community taking care of the older members and vice-versa) that is relational in nature (i.e. how one’s rights to freedom of speech relate to other persons right to not be discriminated against) and is found in the physical reality rather than the metaphysical realm (i.e. reparation for crimes committed are made to the victims and not to gods or ancestors).

The four positions of African Legal Philosophy: African Legal Philosopher William Idowu identifies four positions of ALP: first, that ALP actually does not exist, but rather that it is a source of communal thinking that has not been codified and therefore cannot be a legal philosophy. This approach is Euro-centric in its views and does not ring true to the validity of African Legal Philosophy. The second position identified by Idowu is that it is impossible to identify the substance or content of ALP due to the fact that African legal rules and customs are indistinguishable from one another and as a result of this, there is no legal basis to form a philosophy on. Idowu describes the third position of ALP of being not very different from Western legal philosophy, however the truth of this is that ALP is an actual response to the African society and its structure. The last position, and the most favored of the four, is that ALP has a distinctive African philosophy of law that reflects on human life and by nature is far more intuitive in comparison to Western legal philosophy.

There are 3 identified types of African Legal Philosophy. First, the Ethnophilosophy in the context of ALP is a philosophy based on communal thought and a collective wisdom that is, as African tradition often dictates, orally transferred. Such an approach relies heavily on the metaphysical and traditional assumption of African wisdom. The second type of ALP is that of Sage Philosophy, where the ideas and thoughts on the fundamental ethical and legal issues of the society is based on the wisdom of one person. Khapagawani summarises the role of a sage as follows: “To identity men in the society who are reputed for their wisdom… as critical and independent thinkers who guide their thoughts and judgments by their power of reason and inborn insight rather than by the authority of communal consensus.” Lastly, the nationalistic-ideological type of philosophy of ALP is one that produces a unique political theory that is based on the concept of African socialism. This approach to ALP looks at the best available options for social and political organisation of the African society.

African Legal Philosophy is a legal philosophy that is constantly evolving with time, and with it, gaining more interest in the global legal and philosophical community as a result of constitutional transformation. ALP cannot be understood without taking into consideration its position in the field of philosophy and of the nature of Africa and her people.