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AFRICAN LEGAL PHILOSOPHY

In understanding the concept of African Legal Philosophy, it is important to define the concept of legal philosophy, which can be described as a reflection on the nature of law, its sources, administration and goals as well as an analysis of different concepts or manifestations found in a legal system. One of the characteristics being that legal philosophy is concerned with the totality of legal science. It does not study only a part of law (for example contract law). Instead, it attempts to look at law as a whole: the rules, the basic principles, the application and functioning within the broader social and political context and using its social nature as point of departure.

African Legal Philosophy, like all philosophies, are still developing and evolving. The ideas that shaped African thinking were predominately oral traditions. These traditions have been passed over from one generation to the other by means of songs, customs and celebrations by tribes and communities. The written tradition is of fairly recent origin. The reason for this is due to Colonisation.

The nature of African Legal Philosophy brought about debates on what exactly African Legal Philosophy is about. Philosophers have argued that African Philosophy need not follow the Western pattern in order to be regarded as philosophy. But it is different in the way it reflects on human life and nature in more intuitive ways.

It is important to understand legal philosophy in the context of Africa and its people.

Africa is a big continent and is it unlikely that all Africans will share exactly the same philosophy. But it is very possible to see some themes running across all the various groups and cultures in Africa. Therefore, although we have a variety of Africans, there will be similarities found in even various groups and cultures.

A variety of themes can be found for African Legal Philosophy. One of these philosophies, Ubuntu, will be explained as his theme can be seen as the most important contribution of African Legal Philosophy. As stated by Bishop Desmond Tutu: Ubuntu is very difficult to render into a Western language. It speaks of the very essence of being human.

In general, the term Ubuntu means humanity, humaneness, morality and compassion. It stresses conciliation, harmony through social relations within the group, self-fulfilment through taking part in the collective whole, duties towards others, caring, warmth, empathy, respect for older people who have more knowledge of life than younger ones, and communication, and it emphasises group solidarity as opposed to individual interests. Instead of confrontation, it seeks cooperation.

Interest in the Ubuntu concept began with the inclusion of the term in the Interim Constitution. One of the first cases decided by the newly constituted Constitutional Court, S v Makwanyane, Judge Mokgoro definition of Ubuntu seem to be the most representative.

It is interesting that the concept was not included in the final Constitution, but has been used in other documents and cases.

Central components of Ubuntu include:

Communitarianism: This implies that social relationships are central. That is why all children must show respect for all adults and adults take care of children, regardless of familial relationships. Reciprocity: This implies that family members have obligations to one another. It also means that people have obligations to their neighbours and to the broader community. Relational: Rights are view as relational in nature. These relational rights constitute the practical component of Ubuntu. Physical reality: Ubuntu implies that the emphasis is on the physical reality rather than the metaphysical. Therefore, when a crime or delict is committed, the perpetrator is expected to apologise to the community and the victim, rather than seek forgiveness from God.

No philosophy is without critics and African Legal Philosophy is no exception. In conclusion it may be emphasized that, to understand African Legal Philosophy, it must be seen in the context of Africa and its people.