User:TheDefected/sandbox

= African Legal Philosophy =

Introduction
Like all philosophies African Legal Philosophy is still developing and evolving, but it is an important part of the decolonisation of Africa to be actively involved in this development. It is a philosophy that is older than you might think. For example, the Christian philosopher St Augustine was born in 354 CE in Algeria and we also now of the philosopher Amo who was born in Ghana in 1703. The ideas that shaped African thinking were predominately 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, of course, colonisation. In most of Africa the customary law systems and courts were replaced with those of the colonisers and African lawyers and academics were trained in the laws of these European countries. That meant that neither the African legal system nor the accompanying philosophy was developed. Therefore, a lot of what we now regard as African Legal Philosophy (ALP) is deduced from general African philosophy where there is a longer tradition.

The nature of African Legal Philosophy
One of the oldest debates in ALP is the question of what this philosophy is all about. Idowu identifies four possible attitudes toward this 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 came 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 the second place, there are those who argue that there might be something like ALP but that it’s impossible to determine its content or substance. In this view legal rules in Africa are indistinguishable from customs 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 fact or entity 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 African debate on the relationship between law and morality tends to echo the debate in Europe and in English law. Clearly, the nature of African law and African society will make a difference in how this philosophy would respond. 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 philosophy. But it is different in the way it reflects on human life and nature in more intuitive ways. Proponents of an authentic African tradition believe that the African tradition has something worthwhile to say. 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 emphasised.

Types of African Legal Philosophy
“Africa is a vast continent”. It would be extremely unlikely for all philosophers on this vast continent to have the same approach or method. And indeed, that is not the case. In this section we discuss three broad approaches to African philosophy in general. We will then attempt to apply this to ALP specifically. 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. 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. In order to create a collective philosophy it does not distinguish between different African cultures and tends to gloss over the differences. 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 ..."