Monday, 16 June 2014

Connecting African jurisprudence to universal jurisprudence through a shared understanding of contract

Chapter I've published in the book African Legal Theory and Contemporary Problems by Oche Onazi


The chapter considers African understandings of the person as a social being and connects these to relational theories of contract law. By merging African experience with a universalistic approach to persons’ capacities to form contracts, a jurisprudential position is proposed that is inclusive of, and yet not particular to, the continent of Africa. The chapter begins with the examination of those aspects of social and political culture that are considered more pronounced in Africa, and then explores the reasons for general disillusionment in them, specifically the view that African culture is anathema to the consolidation of the nation-state. It is argued that the conceptions of neutral-bureaucratic models of statehood or contract do little justice even to the normative underpinnings necessary for Western political systems. A truly African jurisprudence does not lie, therefore, in claiming particularism on the part of African legal or political systems but instead in understanding how jurisprudence learns and develops through human experiences of reality, and how the continent of Africa therefore brings rich material to this general debate. The relational nature of contracts renders their jurisprudence inclusive of the social contexts surrounding promise-making, and this presents an extremely worthwhile example of how African jurisprudence can meet with universal jurisprudence. The so-called ‘particularities’ of African social interpretations of the person thus help inform general understandings of the nature and purpose of legal frameworks everywhere.