User:Thato Kholofelo Mamarara/sandbox

Philosophy is an extensive academic discipline with various branches, one of its major branches is philosophy of law also commonly referred to as Legal Philosophy. This branch of philosophy is concerned with examining the nature of law and how it relates to other systems of norms. It is also concerned with the evaluative theories of law. Further, legal philosophy is concerned with two basic questions “what is the nature of law?” (the ontological question) and “How do we know this?” (the epistemological question). In answering these questions logic and reasoning are key.

Legal philosophy looks different in different countries within different continents of Mother Earth, this is because legal systems are different everywhere. Thus, in the continent of Europe there are many European legal philosophies, the same way as in the vast continent of Africa, there are many African legal philosophies (“ALP”). However, almost all African countries have a hybrid legal system, consisting of European laws and African customary law. This hybrid legal system together with the different tribal customs and cultures affect how ALP is developed.

ALP is mostly not codified and has its origin in communal thinking. It is approached differently by its various proponents, the three most broad approaches to ALP include; (1) Ethnophilosophy a philosophy based on communal thoughts and elder’s collective wisdom, that is traditionally orally transferred. This kind of philosophy is found in traditional sayings and metaphors which are used to illustrate a philosophical point. (2) Sage philosophy is the opposite of ethnophilosophy it is based on the ideas of one person rather than on collective thoughts. It works by identifying men in the society who are regarded as wise and solution providers by their people. Is it based on thoughts of individuals who are concerned with ethical and legal issues of their society. Most African legal philosophers are regarded as sage philosophers. (3) Nationalistic-ideological philosophy attempts to produce a unique political theory based on traditional African Socialism. It is more about political theorise than legal theories and it doesn’t provide much substance in the realization of ALP.

APL has three themes namely: (1) Communitarianism: in political theory it is linked to African socialism. Significance is on family, extended family as well as the ancestors. The community is regarded as more important than individual. Members of the community have the same interest, goals and values. Conflicts are settled collectively. (2) Reconciliation: the African conception of law and adjudication is based on the reconciliatory theory because law is seen as a reconciliation instrument for the restoration of social balance. Punishment is done for the purpose of restoration of fair order not for the purpose of retribution. Arbitration and reconciliation are preferred over litigation. Humanism is key. (3) Ubuntu in APL means communitarianism which implies that social relationships are central, reciprocity which implies that family members have obligations to one another and to the broader community. Ubuntu is relational in nature, which motivated the idea of people first in-service delivery and emphasis is on the physical reality than the metaphysical. Hence, when a crime is committed the perpetrator is expected to apologies to the community and the victim, rather than seek forgiveness from God.

Legal philosophy in the context of Africa means Ubuntu, Reconciliation and communitarianism. These elements make and define African legal philosophy because “Africa is inseparable from her history and culture”.