User:Mzi Khumalo

PORTFOLIO ASSESSMENT 3

African Legal Philosophy (ALP)

Introduction

In terms decolonialisation of Africa, the biggest problem was that most of the African customary law was replaced with those of colonizers and African lawyers and academics were trained in the laws of European states.

The nature of African Legal Philosophy

One of the oldest debates in ALP is the question of what this philosophy is all about. It is unwritten and has origin in communal thinking. It derives its substance and content from African customs and rules. It is not different from the Western philosophy for example the debate on the relationship between law and morality is similarly to that in Europe and in English law. Lastly but it is different in the way it reflects on human life and nature in more intuitive ways.

Types of African Legal Philosophy

Ethnophilosophy: 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.

Sage philosophy: 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 solution to some of those issues.

Nationalistic – ideological philosophy: Attempt to produce a unique political theory based on traditional African socialism. It is neither capitalist nor socialist but based on the African Communalism. 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.

Theme in ALP

There are three themes in the African Legal Philosophy, and these are:

(i) Communitarianism

This idea is very strong in ALP. It is a political theory that is tied with African Socialism. It is also based on the importance of the family in African society which includes the extended family as well as ancestors. It is for this reason that conflicts among members of the community are regarded as destructive and they must always be settled to restore the balance. Lastly all members of society have to use their skills and talent for the common good of society.

(ii) Reconciliation

Punishment is not done for the purpose of retribution, but for the purpose of the “restoration or the promotion of fair order”. Hence people prefer arbitration and reconciliation over litigation.

(iii) Ubuntu

Arguably the most important contribution of ALP to general theory is concept ubuntu. Many writers have pointed out that it is difficult to define the concept. In general terms ubuntu means humanity, humaneness, morality and compassion. It stresses conciliation, harmony through social relations within the groups, self-fulfilment through taking part in the collective whole, duties towards others, caring, warmth, empathy and respect for older people who have knowledge of life.