LJU4801 Assignment 2 (ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED

Achieve a distinction with this comprehensive and well-organized set of LJU4801 Assignment 2 (ANSWERS) Semester 2 2025 - DISTINCTION GUARANTEED. Ensure accuracy and excellence in your submission!!!! African Legal Philosophy (ALP) as a central philosophy for us as Africans. Like all philosophies it 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 (as we demonstrated in the previous learning unit). For example, the Christian philosopher St Augustine was born in 354 CE in Algeria and we also know 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 ALP is deduced from general African philosophy where there 134 LJU4801/1 135 is a longer tradition. It is also true that there are very few sources on ALP from South African scholars and, for the most part, we rely on writers from further afi eld. It is hoped that this learning unit will inspire our students to become part of the development of a truly South African legal philosophy. Carefully consider the following quotation: Members of the Makwanyane court found the death penalty repugnant because retribution and group catharsis as the bases for punishment are inconsistent with an uBuntu-based jurisprudence of reconciliation, restorative justice, and democratic solidarity. As importantly, their findings should be understood as broadly representative of South African views regarding the moral underpinnings of the basic law. The presence of uBuntu as a guiding norm in the interpretation of our basic law is essential for the legitimation of our legal system.1 Read the case of S v Makwanyane (uploaded onto myUnisa under the Additional Resources tab). Extensively explain why the judgment can be seen as embodying an African legal philosophical approach. In working through this learning unit, please keep in mind that Africa is a very big continent! Just as there are many European legal philosophies, there are many African legal philosophies. What we can do in this learning unit is to look at general ideas and trends, but keep in mind that legal philosophy will look different in different countries, simply because the legal systems are different. Almost all African countries have the problem of a mixed legal system, consisting of European laws and African customary law, but the rules will differ from one country to the next. That will inevitably affect the philosophical thinking about these rules. Moreover, the different tribal customs and cultures will affect how the philosophy develops. Please note: You will encounter a large number of writers and thinkers in this learning unit. It is NOT necessary, for the purposes of exams, to remember these names, except if the name is highlighted in blue. Just make sure you understand the theories properly. Any name you can remember in the exams, is a bonus. 4.2 The nature of African Legal Philosophy One of the oldest debates in ALP is the question of what this philosophy is all about.179 Idowu identifi es four possible attitudes toward this.180 In the fi rst place there are those who, from a Eurocentric viewpoint, argue that ALP does not exist at all.181 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.182 Consequently, African philosophers reject this idea and point out 179 Carefully consider the following quotation: Members of the Makwanyane court found the death penalty repugnant because retribution and group catharsis as the bases for punishment are inconsistent with an uBuntu-based jurisprudence of reconciliation, restorative justice, and democratic solidarity. As importantly, their findings should be understood as broadly representative of South African views regarding the moral underpinnings of the basic law. The presence of uBuntu as a guiding norm in the interpretation of our basic law is essential for the legitimation of our legal system.1 Read the case of S v Makwanyane (uploaded onto myUnisa under the Additional Resources tab). Extensively explain why the judgment can be seen as embodying an African legal philosophical approach.See Silungwe CM “On ‘African’ legal theory: a possibility, an impossibility or mere conundrum” in Onazi O (ed) African legal theory and contemporary problems: Critical essays (Springer Dordrecht 2014) 17 – 30. 180 Idowu 2006 Cambrian Law Review 1 6 – 10. 181 See Holleman JF Issues in African law (Mouton and Co The Hague 1974) 13; Driberg JG “The African conception of law” 1934 Journal of Comparative Legislation and International law 230 – 245 237 – 238. 182 See Kaphagawani DN “What is African philosophy?” in Coetzee PH and Roux APJ The African philosophy reader (London 1988) 86 – 98. 136 LJU4801/1 137 that the continued survival and thriving of African societies indicates the presence of sophisticated concepts and ideas.183 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.184 Idowu rejects this argument because, “to be ignorant of a fact or an entity does not mean that fact or entity does not exist”.185 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. Carefully consider the following quotation: Members of the Makwanyane court found the death penalty repugnant because retribution and group catharsis as the bases for punishment are inconsistent with an uBuntu-based jurisprudence of reconciliation, restorative justice, and democratic solidarity. As importantly, their findings should be understood as broadly representative of South African views regarding the moral underpinnings of the basic law. The presence of uBuntu as a guiding norm in the interpretation of our basic law is essential for the legitimation of our legal system.1 Read the case of S v Makwanyane (uploaded onto myUnisa under the Additional Resources tab). Extensively explain why the judgment can be seen as embodying an African legal philosophical approach. For example, the African debate on the relationship between law and morality (discussed in the previous learning unit) tends to echo the debate in Europe and in English law. As we have seen, there are certainly similarities in the debate, but it was also clear that the debate is markedly different in the African context. 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, and the one we prefer, 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 refl ects on human life and nature in more intuitive ways.186 Proponents of an authentic African tradition believe that the African tradition has something worthwhile to say.187 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.188 183 See Bewaji JAI “Language, culture, science, technology, and philosophy” 2002 Journal on African Philosophy 1 – 29 1; Elias TO Government and politics in Africa (Asia Publishing House London 1963) 17. 184 M’Baye K “The African conception of law” in David R (ed) The legal systems of the world: Their comparison and unifi cation Vol II (JOB Mohr Tübingen 1975) 211 – 215; Smith MG “The sociological framework of law” in Kuper H and Kuper L African law: Adaptation and Development (University of California Press Berkeley CA 1965) chapter 2. 185 Idowu 2006 Cambrian Law Review 1 7. 186 Oruka HO Philosophy, humanity and ecology (ACTS Press Nairobi 1991). 187 Idowu 2006 Cambrian Law Review 1 10. 188 There is an interesting convergence here with the critical theories that will be discussed in the next learning unit. In these theories storytelling is also increasingly emphasised. 138 LJU4801/1 139 ACTIVITY 4.1 Go back to the previous learning unit and re-read section 3.2.2.4. Based on what you’ve just learnt about the nature of ALP would your understanding of this debate change? Do you think African philosophers have brought anything new to the debate or is it just part of the bigger debate? 20FEEDBACK What we need you to do here is to integrate the two learning units. Try to place them side-by-side and see where they fi t in with each other. 4.3 Types of African Legal Philosophy As we have already briefl y mentioned “Africa is a vast continent”.189 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.190 We will then attempt to apply this to ALP specifi cally. 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.191 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.192 In order to create a collective philosophy it does not distinguish between different African cultures and tends to gloss over the differences.193 As Kaphagawani states: It has been charged with confl ating philosophy, mysticism, and religion, and hence paying lip-service to reason and critical analysis. This has resulted in a 189 Taiwo 1985 International Philosophical Quarterly 197 198. 190 This is based on Kaphagawani DN “What is African philosophy?” 86 – 98. 191 Bodunrin PO “The question of African philosophy” 1981 Philosophy 161 – 179 161. 192 See Appiah K “Ethnophilosophy and its critics” in Coetzee PH and Roux APJ Philosophy from Africa: A text with readings (Thomson Publishing Johannesburg 1998) 109 – 129. 193 See Ochieng’-Odhiambo F Trends and issues in African philosophy (Peter Lang New York 2010). 140 LJU4801/1 141 distorted picture of an African philosophy in which everyone is in unison with everyone else ...194 In ALP this kind of philosophy is often found where sayings or metaphors are used to illustrate a philosophical point. For example, Idowu uses the African saying “for each a crumb of right, for neither of them the whole loaf” to illustrate the reconciliatory theory of law.195 Agbakoba and Nwauche also use various sayings used in Igbo culture to illustrate their view of justice, responsibility and punishment.196 Sage philosophy is the opposite of ethnophilosophy.197 While the latter emphasises collective thought, sage philosophy is based on the ideas of one person. The main task of sage philosophy can be summarised as follows: (T)o identify men in the society who are reputed for their wisdom ... as critical and independent thinkers who guide their thoughts and judgements by their power of reason and inborn insight rather than by authority of communal consensus.198 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 solutions to some of those issues.199 A sage (wise person) is the custodian of the survival of his society. This kind of philosophy represents a culture’s worldview, and also refl ects critically thereon.200 ALP therefore regards sage philosophers as being responsible for addressing the fundamental issues relevant to their society. They therefore have a political role to play. They have to indicate the best options of social and political organisation for Africa’s conditions. The public sphere of social life is stressed which is the arena where all individuals pursue the common good as their individual good. In this arena social 194 Khapagawani “What is African philosophy?” 91. 195 Idowu 2012 Journal for Juridical Science 56 – 83. 196 Agbakoba and Nwauche 2006 Cambrian Law Review 73 77. 197 See Oruka HO “Sage philosophy” in Coetzee PH and Roux APJ Philosophy from Africa: A text with readings (Thomson Publishing Johannesburg 1998) 99 – 108. 198 Bodunrin 1981 Philosophy 161 162. 199 Khapagawani “What is African philosophy?” 93. 200 See Oruka HO (ed) Sage philosophy: indigenous thinkers and modern debate on African philosophy (EJ Brill New York 1990). 142 LJU4801/1 143 forces meet and debate to determine the common good in the true political sense of the word. To a large extent the majority of ALP writers and their ideas we discuss here are examples of sage philosophy. And, although some writers regard professional philosophers as something different from sage philosophers,201 we think these writers fulfi l the role of sage philosophers. Nationalistic-ideological philosophy attempts to produce a unique political theory based on traditional African socialism.202 This type of philosophy can be found in the ideas of, for example, Kwame Nkrumah, Julius Nyerere, Yomo Kenyatta and Leopold Senghor. This political philosophy seems to be neither capitalist nor socialist, but based on an African communalism, which we will discuss more fully below. 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.203 This kind of philosophy is closely related to ideas like Black Consciousness204 and Senghor’s idea of “Negritude”.205 But these are political theories rather than legal theories and we will therefore not deal with them. ACTIVITY 4.2 Which of these types of philosophical approaches do you think is closest to the traditional Western conception of legal philosophy? Why do you say this? 201 Bodunrin 1981 Philosophy 168 argues that sage philosophy is part of the oral tradition and written works therefore cannot be regarded as such. 202 Khapagawai “What is African philosophy?” 95 – 97. 203 Njoku FOC Development and African philosophy: a theoretical reconstruction of African socio-political economy (IUniverse Lincoln 2004). 204 Biko S “The defi nition of Black Consciousness” in Coetzee PH and Roux APJ Philosophy from Africa: A text with readings (Thomson Publishing Johannesburg 1998) 360 – 363. 205 Senghor LS “Negritude and African socialism” in Coetzee PH and Roux APJ Philosophy from Africa: A text with readings (Thomson Publishing Johannesburg 1998) 438 – 448. See also Okolo CB “Negritude: A philosophy of social action” 1984 International Philosophical Quarterly 427 – 438. 144 LJU4801/1 145 21FEEDBACK Go back to the defi nition of legal philosophy we provided in learning unit 2. Look at the defi nitions, but also at the authors of each of these defi nitions. 4.4 Themes in African Legal Philosophy 4.4.1 Introduction We have already said that Africa is a big continent and that it is unlikely that all Africans will share exactly the same philosophy. But it is very possible to see some themes running across all the various groups and cultures in Africa. These are all based on the way in which society is structured and the common features of these structures. ALP tries to answer the questions all philosophies try to answer, namely (a) what is the nature of what exists (the ontological question) and (b) how do we know this (the epistemological question)?206 The answers to these questions will also infl uence the law and the legal philosophy fl owing from it. At its most basic ALP is infl uenced by the ontological assumptions of African society. And that is determined by the integrated view that permeates through that society. That view is based on the fact that religion, ethics, law and customs are closely intertwined and determine one another. Therefore, states Okafor, “African positive law and (the) entire legal experience have metaphysical foundations”.207 There is therefore very little separating religion from social, political and economic issues.208 And in this greater scheme of things the family plays a central role. Okafor states: These laws and customs have their genesis in the African worldview, (and) their conception of reality ... At the level of ontology, a family is composed of the living, the unborn and the dead ancestors.209 206 Idowu 2006 Cambrian Law Review 1 3. 207 Okafor 1984 International Philosophical Quarterly 157 162. 208 Agbakoba and Nwauche 2006 Cambrian Law review 73 74. 209 Okafor 1984 International Philosophical Quarterly 157 163. 146 LJU4801/1 147 In this regard Nduka discusses the various concepts of justice in Igbo culture, including its concept of natural justice.210 This includes a belief in the metaphysical and mystical relationship between the living and their dead ancestors. A second example is Nigerian indigenous law which also accepts that everyone is born with a certain status and has specifi c obligations as a member of the community. According to Ebo it allows for the spiritualisation of law, sacred rituals and ceremonies, and the spirit of the ancestors.211 It is important to keep this metaphysical basis in mind when looking at the various themes in ALP. They can really only be understood within this framework. ACTIVITY 4.3 If you now go back to the African debate on the relationship between law and morality, it might make more sense. A worldview that doesn’t make a strong distinction between law and religion is also less likely to accept the legal positivist position. Do you agree? 22FEEDBACK It is important to see this as a crucial difference between African approaches and the Western attitude of a strong differentiation between church and state. 4.4.2 Communitarianism The idea of communitarianism is very strong in ALP.212 In political theory (or Nationalistic-ideological philosophy) it is tied to what can be called African socialism.213 This view of political, social and economic arrangements is defi nitely infl uenced by Russian socialism,214 but develops a uniquely African character due to the idea 210 Nduka O “Traditional concept of justice among the Ibo of South-Eastern Nigeria” in Woodman G (ed) African law and legal theory (NYU Press New York 1987) 19 – 32. 211 Ebo C “Indigenous Law and Justice: Some Major Concepts and Practices” in Woodman G (ed) African law and legal theory (NYU Press New York 1987) 33 – 42. 212 Nwakeze 1987 International Philosophical Quarterly 101 – 105. 213 Idowu 2008 Journal for Juridical Science 163 180. 214 Remember that many of the African leaders spent time in exile in countries like Russia, Cuba and China, where the Marxist/socialist/communist theories were followed. 148 LJU4801/1 149 of communitarianism. Menkiti says that “as far as Africans are concerned, the reality of the communal world takes precedence over the reality of the individual life histories, whatever these might be”.215 This view is based on the importance and signifi cance of the family in African societies. It refers not only to the typical Western nuclear family, but includes the extended family as well as the ancestors.216 That is why confl icts among members of a community are regarded as destructive. Confl icts have to be settled and the balance restored. This is not diffi cult, as members of the community will have essentially the same interests, goals and values. The community is always regarded as more important than the individual.217 According to this African communitarian (also communal) view, members of a society have to exercise their talents and skills to the benefi t of society. Talents and abilities are seen as common assets.218 This is what Idowu calls the principle of solidarity in ALP.219 In ALP therefore law is regarded as the safeguard of social existence.220 More importantly law is seen as an instrument to ensure social cohesion – a way to achieve social goals and ideals. That is why, as we have seen, many African philosophers argue that you cannot separate law and morality.221 Such a separation is typically Euro-centric and does not take into account the social (and therefore moral) character of African law and legal philosophy. “Africa is inseparable from her history and culture.”222 The dangers of unlimited communitarianism (for example the fear that it can be undemocratic) have been recognised by some African philosophers. Gyeke for example proposes a moderate or restricted communitarianism which will accommodate communal values and social commitments but also individual rights and the individual’s selfrealisation. He views the individual as embedded in community life, but nevertheless accepts that the individual cannot be fully defi ned by communal structures or social 215 Menkiti IA “Person and community in African traditional thought” in Wright RA (ed) African philosophy: An introduction (University Press of America Lanham 1984) 171 – 182 171. 216 Okafor 2006 Cambrian Law Review 37 43. 217 Dlamini CM “African legal philosophy: A Southern African view” 1997 Journal for Juridical Science 69 – 83 79 calls it “the group theory”. 218 Gyeke K “Person and community in African thought” in Coetzee PH and Roux APJ Philosophy from Africa: A text with readings (Thomson Publishing Johannesburg 1998) 317 – 336 links this to some ideas of the American legal philosopher John Rawls. 219 Idowu 2008 Journal for Juridical Science 163 176. 220 Idowu 2006 Cambrian Law Review 1 11. 221 See Learning unit 3. 222 Idowu 2006 Cambrian Law Review 1 16. 150 LJU4801/1 151 relationships. Gyeke’s restricted