User:William Mavura

African legal philosophy (ALP) is a developing philosophy which is part of the decolonisation of the African Legal system. It is legal philosophy of African thinkers based on African society. It is mainly based on oral tradition and was passed from generation to generation by word of mouth dating back to as far as 354 CE. With colonisation came the distortion of African customary law systems and courts as they were replaced by European systems.

There are four viewpoints as to what APL really entails. Firstly, there is the Eurocentric viewpoint which holds that this philosophy does not exist since it is not written but is based on communal thinking. Secondly, some hold that the content and substance of APL is hard to grasp since they are based on custom and not a legal system. Thirdly, some believe that APL is not different from Western legal philosophy for example the APL standpoint on the relationship between law and morals is the same as the Western and English law. The last and preferred viewpoint is that APL is a distinctive philosophy which does not need to follow the Western thinking. According to this viewpoint, APL reflects human life, independence, nature and true African identity.

Furthermore, there are three approaches to African legal philosophy. There is the ethnophilosophy which is based on orally spread collective wisdom, It is not based on individual wisdom and relies on the metaphysical and traditional African wisdom. This approach is a combination of religion, mysticism and philosophy and does not put any differentiation between the variously existing African cultures.

The sage philosophy is opposite to the above and is based on individual thought. According to this approach, there are certain wise individuals in each society who have a legal and political role to play in leading the society. These wise individuals are regarded as the 'custodians' of the society's survival.

The third approach to African legal philosophy is the nationalistic-ideological philosophy which is based on traditional African socialism and not capitalism or socialism. It is rather a political philosophy based on communalism and holds that African thinkers have a political role to play in the African society.

There are various themes is African legal philosophy which are similar throughout the different African societies. The prominent themes are communitarianism, reconciliation and Ubuntu. According to communitarianism,  the family is important in African societies and includes the extended family and the ancestors. The community is more important than the individual and disputes between individuals are seen as a disruption to the balance and peace in the community. The law is thus used to restore social balance and peace to the community. Some philosophers however point out that the individual's human rights are important as part of the community but that rights cannot, in a dispute outweigh the communal values and goals.

Further, reconciliation is seen as the goal in dispute settlement. APL does not follow the Western adversarial proceedings but reconciliation and restoration of the social order. Punishment is not regarded retribution but is levelled for "the restoration... of fair order". Fairness is based on respective status of individuals in a dispute and the transgressions of an individual spells punishment for the whole family.

Ubuntu as a theme reflects humanity, compassion and humaneness. It is an important concept in APL and is the various African legal systems. It speaks of group solidarity and cooperation, morality, forgiveness and reconciliation in disputes and its central components are communitarianism, reciprocity, relational nature of rights, physical reality and reconciliation and consensus.

In conclusion, one must consider that APL does not however exist in isolation and has thus been influenced and also influenced other philosophies.