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African Legal Philosophy
Definition of African Legal Philosophy;

African philosophy is the philosophical discourse produced by indigenous Africans and their descendants, including  African Americans. African philosophers may be found in the various academic fields of philosophy, such as metaphysics, epistemology, moral philosophy, and political philosophy. [1]

Types of African Legal Philosophy

In this section I will discuss three broad approaches of African philosophy in general.

Ethnophilosophy is philosophy based on communal thought and collective wisdom that is traditionally orally transferred. Contrary to the typical Western

conceptions, it is not based on systematic ideas of individuals.[2] It relies on metaphysical assumptions and traditional African wisdom and tends to combine philosophy, mysticism and religion while reason and critical analysis take a back seat.[3] In order to create a collective philosophy it does not distinguish between different African cultures and tends to gloss over the differences.[4] As Kaphagawani states:

''It has been charged with conflating philosophy, mysticism, and religion, and hence paying lip-service to reason and critical analysis. This has resulted in a distorted picture of an African philosophy in which everyone is in unison with everyone else ...[''5]

In ALP this kind of philosophy is often found where sayings or metaphors are used to illustrate a philosophical point.

Sage philosophy is the opposite of ethnophilosophy.[6]While the latter emphasises collective thought, sage philosophy is based on the ideas of one person. The main task of sage philosophy can be summarised as follows:

''(T)o identify men in the society who are reputed for their wisdom ... 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.[''7]

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.[8]

Nationalistic-ideological philosophy attempts to produce a unique political theory based on traditional African socialism.[9] 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 communalism, which we will discuss more fully below. According to this view, African philosophers have a political role to play. They should indicate the best options of social and political organisation for Africa’s conditions.[10] This kind of philosophy is closely related to ideas like Black Consciousness[11] and Senghor’s idea of “Negritude”. But these are political theories rather than legal theories and we will therefore not deal with them.

UBUNTU

Arguably the most important contribution of ALP to general theory is the concept of ubuntu. Many writers have pointed out that it is diffi cult to defi ne the concept.[12] In some cases it is associated with the diffi culty of translating a uniquely African concept into English. As Tutu has said:

''Ubuntu is very difficult to render into a Western language. It speaks of the very essence of being human. [''13]

Others have pointed out that if the concept is used in the typical Western form, it loses some of its essence.[14] In fact, it is typical of mainstream legal philosophy to try to impose the form of Western reasoning onto different concepts thereby rendering them meaningless.[15]

Ubuntu as a legal-philosophical concept

The idea of ubuntu has already led to debate amongst academics [16] and in the courts [17] regarding the meaning of the term. But Radebe and Phooko argue that very little has been done to explore the substantive meaning of the word.

[1] Mucale, Ergimino Pedro (fall 2015). “The Libertarian Paradigm in Ngonha: A contribution to the the African Philosophy”. Philosophia Africana.17:45-54.

[2]  Kroeze IJ Legal philosophy: Only study guide for LJU4801 (Unisa Press Pretoria 2017) 139.

[3]  Kroeze IJ Legal philosophy 139.

[4]  Kroeze IJ Legal philosophy 139.

[5]  Kroeze IJ Legal philosophy 141.

[6]   Kroeze IJ Legal philosophy 141.

[7]  Kroeze IJ Legal philosophy 141.

[8]   Kroeze IJ Legal philosophy 141.

[9]   Kroeze IJ Legal philosophy 143.

[10] Kroeze IJ Legal philosophy 143.

[11] Kroeze IJ Legal philosophy 143.

[12] Kroeze IJ Legal philosophy 153.

[13] Kroeze IJ Legal philosophy 153.

[14] Kroeze IJ Legal philosophy 155.

[15] Kroeze IJ Legal philosophy 155.

[16] Kroeze IJ Legal philosophy 159.

[17] Kroeze IJ Legal philosophy 159.