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African Legal Philosophy is the legal philosophical discourse generated by African legal theorists, including African Americans and other legal writers. The African legal philosophy is associated with natural law thinkers based on factors such as the nature of customary law and the manner in which the traditional courts have been operating.
Introduction
[edit]The approach to adjudication in South Africa is not only based on the legal question to be answered but also on the philosophical perspective. African legal philosophy is different from the Western systems as it incorporates exclusive African elements such as Ubuntu. African legal philosophy is rooted in Africanism.
History
[edit]African legal philosophy is a result of African lawyers and philosophers developed to assist in the adjudication process and to provide a leeway for the advancement of a constitutional democracy. African legal philosophy developed its distinct characteristics from culture and religion, such characteristics include communitarianism, reconciliation, oral tradition and lack of separation between law, religion and morality.
Application
[edit]Writers of this subject suggest that the aim of adjudication in African societies is not retributive but reconciliatory, such approach is due to the fact that community solidarity should be achieved and maintained. In the African philosophical context, decisions that do not uphold reconciliation is disallowed as such decisions do not conform with the desired social cohesion. Ancestors in African tradition play a very vital role, in the context of African legal philosophy, the judges are constrained by the belief in ancestors and what they require of African people.
Customary law is applied in traditional courts and other ordinary courts and such courts make it a priority to apply African values when deciding cases and how the judges decide such cases.
References
[edit]- Idowu W "'To each a crumb of right, to neither the whole loaf': The metaphor of the bread and the jurinomics of justice in African thought" 2012 Journal for Juridical Science.
- Okafor, F "From the praxis to theory: a discourse on the philosophy of African law" 2006 Cambrian Law Review.
- Mqeke RB Customary law and the new millennium (Lovedale Press Alice 2003).
- Agbakoba JCA and Nwauche ES "African conceptions of justice, responsibility and punishment" 2006 Cambrian Law Review.