Contribution written in February -July -August -October 2011
Draft Paper to be Published in the Proceedings of the IVR Special Workshop: The Relevance of African Legal Theory to Contemporary Problems
Abstract
The assumption underlying this paper is that African legal theory as a coherent theory of law does not exist and that as such needs to be made explicit and put into existence. The thing at stake being how to bring it about. For it to be African it needs to be African centered in the sense that it has to stick to African schemes and translate, into a coherent conceptual system of normativity, what is presently only a body of oral intuitions, living cultural practices and existential patterns. Only like this can it succeed in restoring African identity and visibility.
In the paper it is argued that an investigation on the conditions of possibility for an African theory of law and for the emergence of the African cultural-juridical revolution cannot spring from the dominant legal theory based on the received models of the nation-state, democracy, human rights, rule of law, etc., which are the constitutive ingredients of Western juridical identity. On the contrary the African shift of paradigm can occur only if it stands its feet in Africa’s humanism.
Emphasis is put on the fact that African societies have developed and celebrated the value of humanism, not like the West forging the ideology of human rights, but by other more consistent community structures, patterns of behavior, human understandings and philosophies of life. What is advanced is that to be on the side of Africa is to undertake this humanism and in a certain way oppose it to Western abstract humanism.
At the theoretical level this translates in exploring what kind of implications, when applied in legal theory, it may bear. By looking at how it can be ‘reflected in the law and resolvable by the law’ attempt is made to discard the notions of state and law as ordinarily conceived in Western legal theory and to recover more valid interpretations of these concepts through the use of African existential and philosophical interpretations.
It is argued that the point of departure for theorizing an alternative theory of law is located in the African interpretation of the human being: ‘a person is a person through another person’. This existential definition of the human being has significant juridical implications for understanding and theorizing a more close to the truth natural theory of law that can be considered African..Link to Paper
The assumption underlying this paper is that African legal theory as a coherent theory of law does not exist and that as such needs to be made explicit and put into existence. The thing at stake being how to bring it about. For it to be African it needs to be African centered in the sense that it has to stick to African schemes and translate, into a coherent conceptual system of normativity, what is presently only a body of oral intuitions, living cultural practices and existential patterns. Only like this can it succeed in restoring African identity and visibility.
In the paper it is argued that an investigation on the conditions of possibility for an African theory of law and for the emergence of the African cultural-juridical revolution cannot spring from the dominant legal theory based on the received models of the nation-state, democracy, human rights, rule of law, etc., which are the constitutive ingredients of Western juridical identity. On the contrary the African shift of paradigm can occur only if it stands its feet in Africa’s humanism.
Emphasis is put on the fact that African societies have developed and celebrated the value of humanism, not like the West forging the ideology of human rights, but by other more consistent community structures, patterns of behavior, human understandings and philosophies of life. What is advanced is that to be on the side of Africa is to undertake this humanism and in a certain way oppose it to Western abstract humanism.
At the theoretical level this translates in exploring what kind of implications, when applied in legal theory, it may bear. By looking at how it can be ‘reflected in the law and resolvable by the law’ attempt is made to discard the notions of state and law as ordinarily conceived in Western legal theory and to recover more valid interpretations of these concepts through the use of African existential and philosophical interpretations.
It is argued that the point of departure for theorizing an alternative theory of law is located in the African interpretation of the human being: ‘a person is a person through another person’. This existential definition of the human being has significant juridical implications for understanding and theorizing a more close to the truth natural theory of law that can be considered African..Link to Paper
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