Paper long abstract:

A significant aspect of understanding the culture of a people is understanding how they engage with the notion of law and certain legal concepts. The way a society characterises the role of law and what the functions of legal administration should be tell us more about their cultural worldview than more overt forms of cultural expression. The paper will seek to outline certain areas that philosophical endeavour in the African context can be useful in offering tools for conceptual analysis with the aim of attaining a better understanding of certain problems that are to a large extent specific to the African legal terrain, examples of which arise mainly from the duality of normative spheres effected by laws received as a result of colonisation which exist side by side with more indigenous forms of jurisprudence, sometimes bringing about conflicts and uneasy co-existence. Instances of this can be found in the somewhat derogatory way that what is referred to as ‘customary’ law (which is a term used by the more ‘formal’ though largely colonially received legal system to characterise certain ‘recognised’ aspects of indigenous jurisprudence) is treated in many modern African societies. An example of the problematic co-existence of the two systems is where persons wishing to be married face two forms of required recognition, namely formal and indigenous where in order to be recognised by the state as married they have to comply with formal laws of marriage (in a court or church) but still have to comply with the indigenous customs of marriage in order to be recognised by their cultures as married – in effect marrying twice. Philosophical investigation uncovers what is really at issue at the foundation of these problems, namely the problem of identity; more specifically, reconstructing identity after colonisation and the possible role of law in this achieving this.