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AFRICAN LEGAL PHILOSOPHY

An African Legal Philosophy is an old philosophy, but like other philosophies it is still developing and evolving. It is an important part of the decolonization of Africa to be actively involved in this development. Africa like other continents has ancient philosophers, for example; Christian Philosopher St Augustine who was born in 354CE in Algeria and Philosopher Amo who was born in Ghana in 1703. The ideas that shaped African thinking were predominantly oral traditions, the written tradition is of fairly recent origin. The written tradition of African Legal Philosophy is even more recent. The reason for this is because of colonization. In most of Africa the customary law system and courts were replaced with those of the colonizers and African lawyers and academics were trained in the laws of the European countries. That meant neither the African legal system nor the accompanying philosophy was developed. Therefore, a lot of what we now regard as ALP is deduced from general African Philosophy where there is a longer tradition. However, there is a debate of what African Legal Philosophy is about, the nature. 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. To this argument Kaphagawani has responded by pointing out that some Western philosophies also come from communal thought and were originally not written down. Consequently, AfRican philosophers reject this idea and point out that the continued survival and thriving of African societies indicates the presence of sophisticated concepts and ideas. In second place there are those who argue that there might be something like ALP but it’s impossible to determine its content of substance. In this view legal rules in Africa are indistinguishable from custom and therefore, there is no legal system on which to base a philosophy. Idowu rejects this argument because, “to be ignorant of a fact or an entity does not mean that the fact 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. For example, the debate between law and morality tend to echo the debate in Europe and in English law. Therefore, the last approach to this debate, 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 a philosophy. But it is different in the way it reflect on human life and nature in more intuitive ways. ALP will give expression to the desire for independence, authenticity and a postcolonial African identity. What is being put forward now is a diverse and alternative reality, while the narrative (storytelling) element in African philosophy is increasingly emphasized.

The types of African Legal Philosophy Enthnophilosophy: Ethnophilosophy is philosophy based on communal thought and collective wisdom that is traditionally orally transferred. Contrary to the Western conceptions, it is not based on systematic ideas of individual. It relies on metaphysical assumptions and traditional African wisdom and tends to combine philosophy, mysticism and religion while the reason and critical analysis take a back seat. In order to create a collective philosophy it does not distinguish between different African cultures and tends to gloss over the differences. As Kaphangawani states: It has been charged with conflating philosophy, mysticism, and religion, and hence paying lip-service to reason and critical analyses. This has resulted in a distorted picture of an African philosophy in which everyone is in unison with everyone else… In ALP this kind of philosophy is often found where saying or metaphors are used to illustrate a philosophical point. Sage philosophy Sage philosophy is the opposite of ethnophilosophy. While the latter emphasizes collective thought, sage philosophy is based on the ideas of one person. The main task of sage philosophy can be summarized as follows: “To identify men in the society who are reputed by their wisdom… as a critical and independent thinkers who guide their thoughts and judgment by their power of reason and inborn insights rather than by authority of communal consensus”. It is therefore based on the thoughts of individuals who are concerned with the fundamental ethical and legal issues of their society, and who have the ability to offer insightful solutions to some of those issues. A sage (wise person) is the custodian of the survival of his society. This kind of philosophy represents a culture’s worldview, and also reflects critically thereon. ALP therefore regards sage philosophers as being responsible for addressing the fundamental issues relevant to their society. They therefore have a political role to play. They have to indicate the best options of social and political organization for Africa’s conditions. The public sphere of social life is stressed which is the arena where all individuals pursue the common good as their individual good. In this arena social forces meet and debate to determine the common good in the true political sense of the word. Nationalistic-ideology philosophy It attempts to produce a unique political theory based on traditional African Socialism. This type of philosophy can be found in the ideas of, for example, Kwame Nkrumah, Julius Nyerere, Yomo Kenyatta and Leopold Senghor. This political philosophy seems to be neither capitalist nor socialist, but based on an African communism. According to view, African philosophers have a political organization for Africa’s conditions. This kind of philosophy is closely related to ideas of black consciousness and Senghor’s idea of Negritude.