A common law for Southern Africa:

Roman law or indigenous African

law?*

GJ van Niekerk**
Associate Professor: Department ofJurisprudence
University of South Africa

INTRODUCTION
When one considers whether Roman law should be regarded as a source of
a southern African ius gentium or ius commune, the first important point to
be established, is what exactly is meant by 'Roman law'. At most universities,
so far, the emphasis has been on the substantive rules of Roman law, many of
which have no application in southern African today. This attitude to the
teaching of Roman law has placed it in the same dilemma in which indigenous
African law found itself for many years. 1 Today Roman law is under threat of
being relegated to the periphery of legal education. At some South African
universities, notably the University of South Africa, the introduction ofafour-
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year LLB has only enhanced this possibility. Is it possible and, importantly, is
it desirable to save Roman law from this threat?
Domanske is of the opinion that it is important to retain Roman law in legal
education, not only because it underlies much of our private law; or because
it enables students to obtain an overview of the entire system of private law;
or because we have much to learn from the Romans' inherently pragmatic,
community-based approach to law; or because, from a lego-technical point of
view, it focuses on the skills oflega! analysis, legal distinction, legal definition
and legal dialectic3 and thus trains the legal mind; but primarily he thinks that
Roman law should be retained because it displays universal qualities which
make it useful to any sotiety at any time. Indeed, Domanski shows that it is
possible to shift the emphasis in Roman law teaching away from its substantive

"A paper delivered at a symposium on 'Roman law at the crossroads' held in

Windhoek, Namibia 30 June to 1 July 1997.
"BA llB (UP); LIM llD (Unisa).
lA dilemma which, at least in South Africa, now seems to be changing because of the
recognition given to indigenous law in the constitution.
2Domanski 'Teaching Roman law on the eve of the millennium: a new beginning'
1996 11lRHR 539 at 541ff.
Yfhese characteristics of Roman law set it apart from indigenous law which, from a
lego-technical point of view, is characterised as non-specialised. By this is meant
that the particular technique in legal reasoning is characterised by a lack of
classification, differentiation and conceptualism.
 A common law jor Southern Africa 159

rules, whilst employing those very rules (contained in the Institutes of

Justinian) to illustrate the practical application in that legal system of the
principles of natural law, justice and reason.4
There are other arguments too for the retention of Roman law. It is said,
amongst others, that Roman law provides for a common legal language for
countries that are otherwise culturally diverse; that it provides the tools and
concepts to address the cultural diversity in southern Africa; that it reassures
the common point of departure of the various general law systems and thus
contributes to the rule oflaw; and that it strengthens a legal culture in view of
the constitutional values introduced in countries such as Namibia and South
Africa. It is not surprising that those in favour of the advancement of Roman
law are also against the utilisation of indigenous African law, or of the African
tradition and ubuntu, to address the problems which stem from the legal
diversity in Africa.
It is true that Africa may have a lot to learn from Roman law and from the
European experience. The European ius commune, which developed from
the 12th to the 17th centuries, transcended national and legal boundaries and
formed the framework in which the ius propria developed. A superficial
glance at the circumstances in Europe during these centuries and the needs
which gave rise to the development of the ius commune, reminds of similar
circumstances in modem Africa: there is legal diversity and the consequent
need for legal certainty; there is a spirit of universalism, or Africanism; and
there is a scientific legal system, Roman law, in place which has already proved
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itself able to deal with advancement and modernisation, and has shown its
ability to form the scientific framework within which non-spedalised legal
systems (the Germanic customary laws~ in Europe) could adapt. In other
words, it seems quite simple that Roman law should ideally be seen as, or be
promoted to, that very common law we are looking for in Southern Africa.
But, if this is so, the emphasis must indeed be shifted away from substantive
Roman law. History teaches that it is not the rules, but the underlying
principles, the scientific framework and the methodology of Roman law which
proved decisive in its subsequent reception. This reception occurred not only
in Western Europe, but also in Eastern European countries where a scientific
reception took place even though the rules of Roman law themselves were
never received. It is this framework and methodology and the underlying
principles of Roman law which form the core of the South African common
law. In fact, many of the principles or jural postulates of Roman law are
entrenched in the South African Constitution. They are the principles of
natural law, justice and equity.
These aspects of Roman law also form the substratum of the common law of
other Southern African countries. Mr Justice Schreiner once referred to South
Africa (and Namibia), Zimbabwe and the former High COmmission Territories

4Domanski n 2 above at 38-57.

%e characteristic features of the Germanic laws remind strongly of the non-
specialised indigenous legal systems of Southern Africa.
 160 XXXI elLSA 1998

of Lesotho, Botswana and Swaziland as a 'South African Law Assodation'.6

These countries were so classified because they apply Roman-Dutch law, as
influenced by English law, as their primary legal system and indigenous African
law as a secondary legal system; thus giving rise to legal pluralism. The external
legal history of the countries belonging to this South African Law Assodation
is largely similar. Offidal legal pluralism was introduced in the colonial era
when Britain retained the application of Roman-Dutch law and gave offidal
recognition to indigenous African law and institutions.
The recognition of indigenous law has always been severely limited. However,
in the course of time it played an increasingly important role, being observed
by a large majority of the population of Southern Africa. Yet, the relationship
between the general law of the land and the spedal legal systems has never
been based on equality and accordingly legal pluralism in the true sense of the
word never existed. The general legal system has always been regarded as
superior and dominant whilst indigenous African law has always been
regarded as the servient system. This perceived superiority of the western
component of Southern African legal systems is evidenced in the view that the
advancement of Roman law should necessarily entail that there is no need to
consider indigenous African law in the search for a common law for Africa.
The question remains whether a strengthening of the civilian tradition means
that there should be a movement away from the African communitarian ideaL
I am of the view that this is not a question of 'either/or'. The prospect of
advancing Roman law does not at the same time imply the relegation of
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ubuntu. One may accept that the basic prindples or jural postulates of
western law and those of indigenous law are not the same, but are they also
necessarily incompatible? Is it possible to regard both Roman law and
indigenous law as sources of a common law for Southern Africa?
It should first be established what is meant by these so-called 'basic prindples'
or 'jural postulates'. One may start by saying that these prindples embrace the
fundamental purposes of law and constitute starting points for legal reason-
ing. 7 Jural postulates are the basic axioms which underlie law and are based
on societal values of what is desirable and what not. 8 They fonn an integral
part of the structure oflaw and a conflict between such underlying prindples
is often reflected in a political struggle, 9 as has been amply proved in
Southern Africa.

6.4nnab Lokudzinga Mathenjwa 1970-1976 SLR 25 at 29H.

'See Pound Social control through law (1968) at 112; MDA Freeman Lloyd's
introduction to jurisprudence (6ed 1994) at 748-749.
BHoebel The law ofprimitive man. A study in comparative legal dynamics (1954)
at 13.
9Jioebel n S above at 17. Hutchison, Van Heerden, Visser & Van der MeIWe (eds)
Wille's principles of South African law (Sed 1991) at 13-19 refer to jural postulates
as 'laws other than national law' which influences the development and application
of na~ionallaw.
 A common law jor Southern Africa 161

Jural postulates are fundamentally applicable. 10. Without being incorporated

in specific legal norms, they are, or should ideally be, respected, even if
sometimes only intuitively, in all judicial and administrative decisions as well
as in legislation. They underlie specific legal norms and form the basis of the
interpretation of such norms. These fundamental underlying principles direct
legal development. They are dynamic and could adapt l l in accordance with
the changing values, needs and aspirations of the community.12 Although
they may in fact be in conflict with one another,13 they should present a
compromise of the diverse values in a community if that community is to be
socially integrated. 14 In other words, they should to an extent coincide in all
the legal systems applicable in a given country, even if they are not necessarily
consonant in all cases. I'
The principles of natural law, justice, reason and equity are not the only
important postulates we inherited from Roman law. They are general
postulates which support law and social norms in general as well as other
basic principles which have particular relevance to specific legal rules.
Domanski writes:
[W]e come now to the text which is the very foundation, not only of the
]ustinianic Roman law, but of all Western law. II I 3 reads: "the precepts of the
law are these: to live honestly, to injure no one, and to give every man his
due." In these three precepts ... is enshrined the entire ethical content of the
]ustinianic law. The ethical juice of the law, distilled here, permeates the
whole of the Institutes. 16

And to these precepts may be added some specific basic principles or

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postulates of justice l7 which underlie specific legal rules of private law:

nobody should be unduly enriched at the cost of another; nobody should
profit from his own bad faith or unlawful actions; and an error in a transaction

lOOU Plessis Die juridiese relevansie van cbristelike geregngbeid (1978) unpublished
un thesis University of Potchefstroom at 797 and 821-822.
I1In the spirit of western chauvinism, western jurisprudential ideas and modes of
thought are often regarded as universally applicable and unchanging. Scant
attention is usually paid to the principles underlying other systems of law and non-
western jurisprudential ideas are mostly relegated to the fields of sociology or
anthropology.
12Pound n 7 above at 112-113, 11&-118, and 133-134; see also Freeman n 7 above
at 528-531.
BOne should bear in mind that whilst Pound is of the opinion that law embodies the
consciousness of a community as a whole, he also views society as a homogeneous,
static and cohesive entity with 'shared values and traditions and a common
cognition of reality'.
I'Hoebe1 n 8 above at 13-17; Pound n 7 above at 133-134; see also Freeman n 7
above at 529Jf, Ogwurike The concept of law in English speaking Africa (1979) at
134. It is here that Pound's view of the function of law as the halancing of
conflicting and competing interests in a community is best illustrated. The
importance of public policy in internal conflict management in South Africa also
illustrates the role of jural postulates in the halancing of different interests.
15Seidman The jural postulates ofAfrican law (1970) at 16.
16Domanski n 4 ahove at 49.
17These jural postulates are all supported by the principles of justice embodied in the
concept of individual freedom and for this reason they are also referred to as
postulates of justice.
 162 XXXI elLSA 1998

cannot prevail over the truth. The jural postulates which will now be
discussed are but illustrations of the differences between the values which
underlie western and indigenous law. This may assist one to detennine
whether Roman law could in fact serve as the exclusive source of a Southern
African common law.

Some important jural postulates in western law and in indigenous

African law
To preserve order and to do justice are not only regarded as basic axioms
which support the specific jural postulates in western law as well as law and
social norms in general, but are often regarded as the main objectives of
law. is

Although order and justice do not always coincide and although a proper
balance between them should be maintained, they may, for purposes of a
comparison between western and indigenous jural postulates, be regarded as
an integrated whole. Likewise, fairness, reasonableness, generality, equality
and certainty may be regarded either as separate specific postulates,19 or as
postulates of justice and as part of this integrated system of values which forms
the starting point for legal reasoning in western law. Wille20 adds to these
postulates of justice that law should be in accordance with public opinion, a
postulate which emphasises the important role of public policy in legal
development and reform.
Over the years various theories of the concept of justice have been developed.
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The primacy of the individual and the concept of equality have played an
increasingly important role in most of these theories and it is in this sense that
the dichotomy between western and indigenous jural postulates reveals itself
most clearly. 21
Aristotle's concept of justice is often used as a framework for examining
different conceptions of justice. 22 He emphasised the connection between
justice and equality and distinguished between distributive and corrective

18Hahlo & Kahn The South African legal system and its background (1973) 25 26; see
also Van der Westhuizen 'Opmerkings in verband met regsnonne, legitimiteit en
samelewing' (unpublished paper read at a ColloqUium Iuridicum on 'Regsfilosofie
en Samelewing' held at the University of the Orange Free State September (1987»
at 5 on the close relatiOnship between justice and the maintenance of order and
stability. It seems that Du Plessis n 10 above also regards justice as an important
diffuse postulate. He makes the following statement (at 827): 'Hierdie geregtigheids-
vanne is tewens Die grondnorme an sich nie, maar leidingsfunksies (of rigtende
prinsipes) vir die handelinge van staatsowerheid en -burgers in hulle konkrete doen
van geregtigheid (wedersyds teenoor mekaar) langs die weg van die instellings
(waaronder inter alia grondnorme).'
19Or, according to Hahlo & Kahn n 18 above at 31-35, as criteria with which law
must comply in order to be just; see also Hutchinson et al n 9 above at 13-16.
~utchinson et al n 9 above at 15-16.
211t should be borne in mind that although the primacy of the individual and
absolute individual freedom dominate modem liberal jurispnldence, nea-Marxist
and critical-Iegal-studies theorists have criticised the mainstream liberal theories: see
Freeman n 7 above at 857-861 and 935-941.
22Freeman n 7 above at 456-357.
 A common law for Southern Africa 163

justice. 23 Distributive justice is concerned with the fair distribution of

benefits and burdens and involves the relationship between the sodety and
individuals. It comprises the prindple that equals should be treated equally
and unequals unequally, which prindple presupposes a fundamental right to
equality.24 The concept of equality in justice is also incorporated in the
IDpian concept of justice evinced in the Corpus Iuris Civilis: 'Justice is the
constant and unceasing will to give everyone his due' (Iustitia est constans
et perpetua voluntas ius suum cuique tribuens: D 1 1 10; see also Inst 1 1
pr). Corrective justice, again, is directed at the restoration of the equilibrium
by redressing unfair distribution. In short, distributive justice entails political
or sodal justice, while corrective justice comprises justice administered by the
courts.
The pre-eminence of the individual and the concept of individual rights
originated in the writings of Locke and Kant and in the documents and
constitutions of the American and French Revolutions. These notions have
dominated legal philosophy in the west.2~ It comes as no surprise that
prevailing modem liberal concepts of justice focus on the maximisation of
individual liberty subject to the limitations which are necessary to prot~ct such
liberty. It is also not surprising that the spedfic postulates which underscore
western law are often just that: limitations on individual liberty in balandng
conflicting interests (the prinCiple that equal liberty should obtain) and in the
protection of liberty itself. 26
For purpose of comparison with the indigenous concept oflawand indigen-
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ous jural postulates, the theory of justice of the modem western liberal
philosopher, John Rawls, may serve as an example.
In his assessment of the role of justice in a sodety, Rawls27 draws a distinc-
tion between the concept of justice and conceptions of justice. The concept
of justice is seen as an objective phenomenon which entails the maintenance
of a balance between competing claims. This concept encompasses a set of

2lVan der Westhuizen n 18 above at 5; Van der Vyver 'Reg(ter) en geregtigheid' 1975
DejuTe at 8-22 and 8-11.
24See Gennjurisprudence and legal theory textbook (1991) at 194-195, Clark The
entetprise of law (1987) at 61-64.
25See Freeman n 7 above at 379-381.
lDyet, it should be remembered that equality and liberty are both separately
entrenched in the constitution and that this may lead to practical tension and
conflict between the two concepts. liberal equality entails the dominance of
freedom, whilst socialist eqUality allows for fewer limitations of equality by
individual freedom. This tension comes to the fore especially in the law of contract.
It is solved by either limiting individual freedom in the interest of material equality
(thus obtaining socialist equality), or by limiting material eqUality for the sake of
liberty (thus obtaining liberal equality). See generally the discussion by Hawthorne
'The principle of equality in the law of contract' 1995 THRHR 157-176 on the
tension between equality and freedom of contract.
27See generally Rawls A theory ofjustice (1992) at 3-22.
 164 XXXJ CILSA 1998

prindples 28 which assign rights and duties and which define the appropriate
division of sodal advantages and distribution of burdens necessary for sodal
cooperation. By contrast, conceptions of justice are subjective interpretations
of the role of the prindples of justice in a particular situation.
Rawls points out that for a theory of justice to be useful, it must be general,
universally applicable, publicly known, able to impose an ordering on
competing claims, and must have finality.29 Proceeding from the premise that
his is a universally applicable theory, indigenous laws would have to be
assessed within the framework of justice as an objective set of prindples
which govern the asSignment of rights and duties and regulate the distribution
of sodal and economic disadvantages. It may indeed even appear that the
ideals of justice as we understand them in a western sense, are to an extent
realised in indigenous law. But in Rawls's theory, the individual is, in typically
western liberal fashion, awarded a central role and individual freedom takes
priority over the greater good shared by the community. 30
Rawls 31 makes provision for the possibility that individuals in the same
community may have different conceptions of justice: they may have different
views on the content of the prindples which should govern their assodation
with each other. Yet, he is of the opinion that individuals or groups of
individuals who have different conceptions of justice, should still agree on the
basic need for a set ofprindples to assign basic rights and duties and should
agree that 'institutions are just when no arbitrary distinctions are made
between persons in the assigning of basic rights and duties and when the rules
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determine a proper balance between competing claims to the advantages of

sodal life'. 32 Thus, he foresees the pOSSibility that individuals or groups of

28According to Rawls the principles of justice are derived from a hypothetical ideal
original position of equality in which free and rational people agree on the
principles which should organise society. It is their reason which induces
individualistic, egocentric individuals to realise the necessity of social control to
restrain excessive greed and maintain order in a society. Agreement is the rational
way to establish such social control. The principles are: First, each person is to have
an equal right to the most extensive basic liberty compatible with a similar liberty
of others. Second, social and economic inequalities are to be arranged so that they
are both (a) reasonably expected to be to evetyane's advantage, and (b) attached to
positiOns and offices open to all. The basic liberties of the first prinCiple are
political liberty (to vote and to be eligible for public office), freedom of speech and
assembly, liberty of conscience and thought, freedom of the person and the right
to personal property and freedom from arbitrary arrest in accordance with the rule
of law. These liberties are fundamental rights which all people have. Once equal
liberty is attained, equal opportunities must be given to persons of similar skills,
ability and motivation. Also contained in the second principle of justice is the
difference principle which requires that inequalities must be arranged to the
greatest benefit of the least advantaged. See generally Rawls n 27 above at 60-67,
HeynsA critical study ofthe difference principle inJobn Rawls's ~ theory ofjustice ,
unpublished MA dissertation, University of Pretoria (1985) at 29-34, Freeman n 7
above at 356-367.
~wls n 27 above at 130-136; Genn n 24 above at 202.
30Uberal justice asserts the primacy of the individual and his inalienable human rights
and stresses mechanisms to check and balance state rule.
llRawls n 27 above at 5-6.
l2Rawls n 27 above at 5.
 A common law for Southern Africa 165

individuals may differ on the basic concept of justice only to the extent to
which their notions of 'arbitrary distinctions and proper balance' may differ.
Indigenous laws are underscored by wholly different jural postulates. Starting
points for indigenous legal reasoning are different and this makes the
conceptions oflaw and justice in an indigenous context very different from the
western conceptions. The individual takes primacy over the common good
and equality is assigned a central role, not only in the general conceptions of
justice put forward by Rawls, but also in the concept of justice. 33 TIlls is not
consonant with the most important diffuse postulate of indigenous law,
namely harmony of the collectivity in which the collective good takes primacy
over individual claims.34 Judged then by western standards of justice, many
indigenous laws will be found to be unjust and should consequently be
reformed or abolished. By the same token, if judged within the framework of
indigenous jural postulates, western law may be regarded as falling short of
the standards of justice of indigenous jurisprudence.
Thus, in a society where there is legal pluralism it is in the practical administra-
tion of justice that the conflict between western and indigenous value systems,
and accordingly between jural postulates, is most apparent. 35 Aguda36
makes the following remark in an assessment of the judidary in a developing
country:
Here the judiciary has a task, and a very difficult one, of re-thinking and adapting
the concept of justice and fair hearing to which they have become accustomed
during their learning under the common law so that the concept will be
acceptable to the generality of the people they are called upon to serve.
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TIlls conflict between western and indigenous values is illustrated in particular

by the introduction oflegislative repugnancy clauses throughout Africa during
the colonial period. Justice acquired a very specific meaning in colonial Africa
with the introduction of such clauses. The criteria which were and are still
employed to determine the repugnancy of indigenous law, reflect the western
jural postulates which underlie that law. These criteria are those of justice,
morality, equity, good consdence, order, humanity, public policy or natural
justice. Whilst the use of a repugnancy clause has been abandoned by most

33Rawls n 27 above at 504-512; see also Van der Westhuizen n 23 above at 5, Van der
Vyver n 23 above at 8-12, Du Plessis n 10 above at 820ff.
l4But the collectivity cannot be seen as an entity separate from its component
members. Therefore, it is also not quite correct to speak of the absolute primacy of
the collectivity over the individual good. Indeed, indigenous law has other
mechanisms to protect the dignity of the individual.
3s-rbe existence of unofficial legal institutions provides a fine example of the
dichotomy that prevails in the western and indigenous values regarding procedural
justice. The functioning of these institutions should not merely be ascribed to
political differences and the prevalence of unjust and racial legislation, but also to
the different perceptions of the concept of justice. In contrast, the application of
unofficial indigenous law by the official chiefs courts may serve as an illustration
of the difference in perceptions of substantive justice prevailing in actual legal
norms. Marriage, and other family relations, the law relating to land and criminal
law are but a few examples of where this conflict of value systems comes to the fore.
36Aguda 'The judiciary in a developing country' in Marasinghe & Conklin (eds) Third
world perspectives in jurisprudence (1984) at 162.
 166 XXXI CILSA 1998

African countries today,37 it still forms part of the legislation of South Africa
and of other countries belonging to the South African Law Assodation. In fact,
the repugnancy clause has been entrenched in the South African Constitution.
What are the most important prindples which direct legal reasoning in
indigenous law? Although many of the rules of the traditional indigenous
African law have changed, or no longer exist, there are basic prindples which
still constitute the fundamental axioms of indigenous law. Although there are
also specific postulates which underlie specific indigenous legal rules, I will
briefly explain the most important general postulates, namely the harmony of
the collectivity; the prindple that superhuman38 forces are superior to man;
and the identity postulate. 39
The first postulate, namely the harmony of the collectivity, is evidenced in the
fact that the indigenous African approach to law is permeated by the idea that
the equilibrium in the community should be maintained.
The second postulate explains the pre-eminence of religion and ritual in
African law and culture. Law is aimed at the harmonious co-existence with the
superhuman and the visible world is interpreted in terms of superhuman
forces. The perception of a higher law which originates in the superhuman
and to which all laws must conform, puts the role of the superhuman in
indigenous legal orders into perspective and attributes to Africa a natural law-
like philosophy. Ayittey40 writes:
Endowed with lethal powers, all the supernatural and cosmic forces exhibit
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and maintain an intricate, delicate and mysterious balance with their

normative and functional inter-relationships harmonized into a set of coherent
and non-contradictory higher norms, prohibitions and prescriptions to human
beings. Therefore all other nonns, legal or social, subordinate to and
originating from ancestors or humans cannot contradict these higher norms
of supernatural origins.

The third postulate, the identity postulate, explains the fact that indigenous
law is able to accommodate change whilst retaining its fundamental premise,

37See Bennett A sourcebook ojAfrican customary law Jor Southern Africa (1991) at
130-13l.
38Ancestra1 spirits, witches, nature spirits, the supreme being, and the like all form
part of the cosmology of indigenous people. But these beings are regarded as part
of their natural world and it is therefore incorrect to refer to them as supernatural.
There is a direct and close link between these beings and living humans, usually
through the ancestors. Mbiti African religiOns and philosophy (1975) at 83 points
out that the ancestors still speak the language of the living with whom they have
been recently (up to five generations of deceased ancestors according to Mbiti).
However, they are bilingual and also speak the language of the superhuman. These
forces are thus interpreted in human terms and called superhuman rather than
supernatural. This is also in line with the primacy of human beings in indigenous
culture and the solidarity of living beings and the superhuman. And it is in contrast
to the sharp distinction between the natural and the supernatural in western
thinking. In western thought the supernatural is mostly relegated to the realm of
superstition: see Kaunda A humanist in Africa (1966) at 29.
39For a detailed discussion, see Van Niekerk The interaction oj indigenous law and
western law in South Africa: a historical and comparative perspective unpublished
doctoral thesis, University of South Africa (1995) at 194ff
40Ayittey Indigenous African institutions (1991) at 11.
 A common law for Southern Africa 167

namely harmony of the collectivity and the superiority of the superhuman.

Kaunda41 explains:
I think too, that the African can hold contndictory ideas in fruitful tension
within his mmd without any sense of incongruity.... Every missionary is aware
of the African Christian of some maturity who in one situation will behave as
his Faith has taught him and in another follow the practices of traditional
religion, or even combine the two .... The African mind does not find it easy
to think in tenns of Either-Or. It is open to influences which make Both-And
seem desirable.... This attitude comes, I think, from the sense ... of inhabiting
a large world in which there is no partition between natural and super-natural.

Ubuntu
Is it at all possible for Roman law to override ubuntu? The jural postulates
which underlie indigenous African law are founded in the African tradition.
This tradition transcends extra-African influences and encapsulates the African
spirit of ubuntu. It is this ethos of ubuntu which gives indigenous law a
different dimension and which distinguishes it from mere primitive law, from
mere religiOUS law or mere customary law or from African law in its present-
day meaning. Ubuntu is a fundamental value; an inherent belief system which
underscores indigenous cultures and indigenous legal orders in Africa. The
concept of ubuntu has been subject to many interpretations by different
people at different times. This Nguni word~ may be translated as 'humane-
ness' or the 'link that binds men together'. It emphasises the connection
between the individual and the community.43 The term has also been
described as 'the art of being a human being', a description which focuses on
tolerance, compassion and forgiveness in relation to other human beings. 44
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It has been likened to the English 'person-hood', an abstract term which aims
at community building and which manifests itself through concrete acts in
different situations. 45
Ubuntu has often been presented as African humanism46 and it is perhaps

41Kaunda n 38 above at 29-30; see also Fabian 'Religion and change' in Paden & Soja
(eels) The African experience Vol I (1970) at 384 on the accommodating nature of
indigenous culture as illustrated in its ready acceptance of christianity whilst
retaining traditional beliefs.
421n Sotho languages the tenn is botho.
43See also Mbigi & Maree Ubuntu. The spirit ofAfrican transformation management
(1995) at 109jJ.
44Dhlomo 'Strategic advantages that can be derived from ubuntu' in Secretariat of the
EconomiC Community of Southern Africa Incorporation of ubuntu into a uniquely
Soutb African approacb to management (one-<i2Y seminar held in Midrand 30
October 1991 (hereafter 'Ubuntu in management'). He refers to ubuntu (for which
all indigenous African languages have a tenn) as a purely African philosophy of life.
See also Mbigi & Maree n 43 above at 12.
4SJ'rinco & Valente 'Ubuntu at work situated in an international environment' in
'Ubuntu in management' n 44 above at 44-47; Mbigi 'A new dimension for business'
1995 Enterprise 57.
460mi & Anyanwu African philosophy. An introduction to the main philosophical
trends in contemporary Africa (1981) at 139 describe African humanism as 'virtues
of the heart'. These virtues are self-control and humility; faithfulness and friendship;
and goodness and kindness. These virtues are aimed at maintaining the equilibrium
in the group. Both horizontal social solidarity (between the living. and between the
 168 XXXI eILSA 1998

easier to explain the concept with reference to that familiar western concept.
Humanism puts the human being at the centre of all things. It is a belief in the
centrality, the sacredness, the primacy of human beings in all spheres of life.
It emphasises the values of human dignity, safety, welfare, health, development
and that these should take priority over economic, financial and political
considerations. 47
But ubuntu can be understood only within the context of the world view of
indigenous people. 48 They regard the world as an integrated whole of nature,
life on earth and the after-life. People on earth should live in harmony with
each other, with nature, and with the gods and the ancestors. 49 To maintain
this harmonious state of affairs, the interests of the individual, as a component
of the collectivity, should be looked after. The individual's dignity, health and
sodal welfare should be protected. But her welfare is only one side of the
coin, the other side being the welfare of the community. 50 And in that lies the
essence of ubuntu: the welfare of the individual is inextricably linked to the
welfare of the collectivity and that, in turn, is inextricably linked to an
harmonious relationship with the ancestors and with nature. Although man is
at the centre of things, man can be defined only in relation to other men. And
the community can likewise be defined only with reference to its individual
members:
The relationship between "man" and "society" was never thought of in
hierarchal terms. Uubuntuism teaches that "I am because they are; and they
are because I am". The "community" is the "I" writ large - and the "I" is the
community individualised. And ... this tie-up between the "I" and the
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

"community" reaches beyond the grave.51

Kaunda and others52 trace the historical roots of the concept of ubuntu back
to small-scale societies in Africa.

living, the deceased ancestors and those not yet born) and vertical solidarity
(between the living and the creator god) must be maintained.
'Vllakui 'The roots of ubuntu' in 'Ubuntu in management' n 44 above at 7.
48Hammond-Tooke Rituals and medicines. Indigenous healing in South Africa (1989)
at 33 explains that world view 'is essentially a (cognitive) attempt to make sense of
the world, and impose meaning on it'. Besides intellectual statements to explain the
world and life, world view comprises concepts and beliefs, with a strong emotional
content, about the sense of being and as such it comprises subjective value systems.
See also Ntshangase Ubuntu-botho, education, nationalism and democracy,
unpublished M Phil thesis, University of the Western Cape (1994) 24-32.
4This is comparable to the Buddhist tradition which has a profound influence on the
Japanese world view. It recognises 'the temporal, passing, impermanent and
changing nature of the ego, and by so doing finds the true self through identifica-
tion with universal oneness': see Smith 'Ajase and Oedipus: ideas of the self in
Japanese and western legal consciousness' 1986 University ofBritish Columbia Law
Review 341-377 at 355.
solt seems that English 'Ubuntu. The quest for an indigenous jurisprudence' in 1996
South African Journal on Human Rights 645 does not fully grasp the essence of
ubuntu when she writes: 'To make any sense of the idea, you have to pick and
choose between conflicting interpretations. Either it means individual human
dignity. Or it means conformity to basic norms and collective responsibility.'
51Trinco & Valente n 45 above at 45.
52Kaunda n 38 above at 22-28; Vllakui n 47 above at 9, DhIomo 'Strategic advantages
that can be derived from ubuntu' in 'Ubuntu in management' n 44 above at 51.
 A common law for Southern Africa 169

In the first place indigenous communities are characterised as mutual

communities. They are subsistence communities in which resources are
communally owned and administered to satisfy the needs of every person as
a member of society. The only perception of life is life-in-community.
Disturbed harmony has to be restored and parties to a dispute reconciled and
forgiven so that opposing parties are both again integrated into sodety.H To
this may be added that indigenous dedsion making is aimed at remOving
dissent through community partidpation. Communication in the community
takes place outwardly with the emphasis on transparency.
Further, indigenous communities are characterised as accepting communities.
Members are 'valued not for what they could achieve but because they are
there'. This feature emphasises the high regard for human dignity in indigen-
ous culture, irrespective of personal 'usefulness' to society. All persons are
regarded as important components of the group and have a specific role to
fulfil in the community.
lbirdly, indigenous communities are inclusive,participatory communities.
This means that relationships and responsibilities must be seen within the
context of the extended family. Indigenous Africa cherishes family life. The
human community is regarded as so important that not even death can
interfere with it. Accordingly, the ancestors are regarded as a mere extension
of the group on earth and as an integral part of the extended family. This
feature emphasises an acceptance of wide responsibilities towards and care
for others. It rejects the idea of absolute individual freedom, also in the
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

realisation of human dignity.

In the light of what has been said about ubuntu, one may now take a look at
legal ideology in indigenous law. From an ideological point of view, indigen-
ous law is communal or sodalist. Yet social solidarity and harmony of the
collectivity as fundamental prindples of indigenous law must not be seen as
a means to promote societal welfare or the common good to the exclusion of
individual human·needs. The common good must always be seen in relation
to the individual, who is an inextricable component of that community. In the
same way that humanism has a very specific meaning in indigenous law, so too
has socialism. Otite'4 remarks that African socialism is 'humanist and
egalitarian, a defense of communalism'}} and that the qualities of brother-
hood, familyhood, mutual dependence and benevolence, and a 'cherished
communocratic society' create a unique content for socialism in Africa.}6
The lack of spedalisation is reflected in all spheres of indigenous law. Thus,
law, morality and religiOUS expectations are not rigidly distinguished and there

slKaunda n 38 above at 34.

S40tite 'Issues in African socialism' in Otite (ed) Themes in African social and
political thought (1978) at 141.
SSOtite n 54 above at 145. He also explains that 'society is not an undifferentiated
mass of peoples. Man is not a tool for social continuity and economic development.
He is human.'
S60tite n 54 above at 154.
 170 XXXI elLSA 1998

is also no rigid distinction between public and private needs. It is in these

examples of the non-specialised nature of indigenous law that the ethos of
ubuntu is best illustrated. Ubuntu gives the close relationship between law
and morality, and between public and individual needs, a fundamentally
humane dimensionY Ghandi once said that the 'true practice oflaw' and the
'true function of the lawyer was to unite parties riven asunder',s8 and
Leopold Senghor said that 'emotion is Africa, reason is Hellenic'. 59
There are many similarities between indigenous and japanese jural postulates
and it comes as no surprise that one finds a comparable emotional foundation
in japanese law. 60 The important link between law and compassion in both
indigenous African law and indigenous japanese law is manifested in a
reluctance to litigate and a preference to mediate; in an avoidance of
confrontation and a distaste for adversarial procedure; and in the fact that
dispute resolution is aimed at restoration of harmony, a harmony which 'rests
in a sense of identity within the community, which is generated mainly by
emotional means'. 61
In an article on the ideas of the self in japanese and western legal conscious-
ness, Smith discusses the concept of amae in japanese law. There is an
interesting correlation between this concept and the African concept of
ubuntu. A cryptic exposition of this concept in japanese law may shed some
light on the content and role of ubuntu in indigenous legal ordering. Amae
may be described as the spiritual foundation ofjapan. 62 It fonus the basis of
the whole social and legal system and of the jural postulates which underscore
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

japanese law. In abstract terms it may be translated as the dependence of the

individual on community acceptance. In indigenous tenus, this dependence
can be likened to a mutual dependence between the community and the
individual.
The japanese distinguish between a sense of having a self and a sense of
having no self. A sense of having a self can be developed only once a strong
we-consciousness has been developed. Total isolation from the group induces
a sense of having no self. Therefore, an individual's acceptance and position
within the group is very important. In indigenous law, the importance of the
acceptance by the group is illustrated by the fact that the punishment of
ostracism is regarded in a very serious light. Accordingly, banishment is a
competent punishment for serious crimes such as black magic, murder and

57This is sometimes described as the bias for morals and emotions in indigenous
decision making. In practice it is, eg, illustrated by the reintegration of criminals
into the community and by the reconciliation of the parties to a dispute.
SBsmith n 49 above at 346.
5~rinco & Valente n 45 above at 45.
SJsmith n 49 above at 346 347; Yasaki 'Issues in African socialism' in Otite (ed)
Themes in African social and political thought (1978) at 185.
61Smith n 49 above at 347.
&smith n 49 above at 347, and see generally at 347-352.
 A common law for Southern Africa 171

treason. 63
Because of the weak position of 'we', as opposed to the strong position of T
in western cultures. western legal orders are characterised by analysis.
discrimination, differentiation, individualism, intellectualism, objeCtivism,
indUCtive reasoning, sdentific thought, generalisation, conceptualism,
legalism, organisation, self-assertion, and impersonality. By contrast,
indigenous Japanese and indigenous African legal orders, because of a well
developed we-consdousness, are characterised as synthetic, totalising,
integrative,non-discriminative,non-systematic, dogmatic, intuitive, non-discur-
sive, subjeCtive, communalistic and spiritually individualistic. 64
The difference between ubuntu and amae seems to be that the I-conscious-
ness in Japanese law is weak and the we-consdousness is strong, whilst
ubuntu is founded upon a strong we-consdousness as developed through a
strong I-consciousness. Ubuntu is more in line with the ideal position in
which the I-consdousness and we-consdousness develop in hannony. 'I' and
'we' are not regarded as conflicting opposites between which a balance
should be maintained. 'There can be no 'I' without a 'we', nor conversely, a
'we' without a set of Ts'. 6,

Conclusion
In mainstream liberal jurisprudence, the proteCtion of the individual has
become a reasoned process which is sadly devoid of human feeling, emotion
and compassion. Because individual rights are so rigidly conceptualised, the
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focus has been on the conceptual framework in which rights may be

systematically organised and in which there is little concern for possible
individual variations in praCtice.
Otite66 has written that 'Western sodeties took their departure [from the
process ofhumanisation of sodety] through industrialisation' and 'the more
Westernised the African sodeties become, particularly after the exploitation
through colonial aCtivities, the less of this universal humanism remains'.
Individuals not only stand in radical isolation, but human beings are
objectified in western legal thought. 67 The proteCtion of individual human
rights has developed into a formal technical weighing of individual claims
without any sense of ubuntu. Rights are ascribed to individuals as individuals
and without taking into account any relationship with other individuals or
with the community. Rights thus become claims to protect the individual

63Myburgh 'Punishment' in Myburgh(ed) Indigenous criminal law in

Bophuthatswana (1980) at 48 and 49.
~mith n 49 above at 355.
65Smith n 49 above at 354.
660tite n 54 above at 150.
67Smith n 49 above at 359 mentions the holocaust, slavery and the condition of
industrial workers in nineteenth-century England as examples of such
objectification of human beings. Likewise, and in a South African context, the
whole system of apartheid with all its annorures of forced removals, pass la-ws, and
the negation of the law and culture of a people, are but examples of the
objectification of human beings.
 172 XXXI CILSA 1998

against threats presented by others. Primarily, rights become rights against

others. 68
It is in this respect that the new constitutionalism emphasises the divergence
between legal thinking in indigenous African law and in western law. In
indigenous law there is no conception of rights and of the protection of rights,
even fundamental human rights, for the sole benefit of one individual against
other individuals or against the group. It is even difficult to translate the
western conception of ,rights' into an indigenous context by saying that rights
are the claims of groups for the sake or benefit of one group against other
groups. In indigenous law there is another dimension to rights: even if rights
are regarded as the individual claims of constituent groups, the protection of
rights are for the benefit of society as a whole. Disturbed relationships in the
community unsettle relationships with the superhuman and this may cause a
variety of detrimental consequences for all. Therefore, claims must be adhered
to and rights protected for the sake and benefit not of the individual group,
but of society as a whole. Likewise individual interests must be protected to
maintain the equilibrium in the group and in the community as a whole.
But, the supremacy of absolute individual freedom in western law is faltering.
And its protection is countered through the application of the principles of
public policy, public interest, boni mores and equity. Although individualism
is still reflected in these principles, the position of the individual as part of a
larger whole is coming to the fore, thus limiting the absolute primacy of
individual freedom. Could this be regarded as a reversion to the pragmatism,
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or the community-based approach to law of the Romans, or has African

thinking made some incursion into western thought? If the western idea of
freedom is to mean something more than the satisfaction of individual deSires,
it must include solidarity with others through participation. 69
Apart from the important feature of individualism in western legal reasoning,
legalism and conceptualism also give the western legal culture a specific
specialised character which is not, as such, reconcilable with indigenous legal
cultures and thus excludes it as the sole source of a southern African ius
commune. Legalism is reflected in the separation of law and other norms. It
separates law from social values. lbis is in contradistinction to indigenous law
which maintains a close relationship between law and other norms. Intellec-
tualism too, which comprises thematisation, conceptualism and abstraction in
legal reasoning, is not compatible with the non-specialised indigenous legal
reasoning which focuses on the visible, tangible or sensory world and which
is characterised by a lack of differentiation, classification and conceptualism.
There is no doubt that Roman law gave Africa a scientific legal framework and
structure which can fulfil the needs of a changing Africa. Even though judicial
precedent has eroded the direct relevance of this law, its underlying values
still provide an important substratum around which the common law of the

~ee MacIntyre 'Individual and social morality in Japan and the United States: rival
conceptions of the self 1990 Philosophy East and West 489-497 at 495.
69Smith. n 49 above at 352, and see also at 356-365.
 A common law for Southern Africa 173

Southern African countries revolve. These values and the African values
founded in the spirit of ubuntu, are in many respects different, but they are
not irreconcilable. The fact that there are differences in these systems oflaw
does not mean that Roman law should be the exclusive source of the Southern
African ius commune or that ubuntu should be denied for the sake of Roman
law. Western jurisprudence may have a lot to learn from African thought. Both
Roman law and indigenous African law have much to contribute to a common
law for Southern Africa. Just as the European ius commune drew on Roman
law, canon law and the customary Germanic laws of the time, so should our
African ius commune be based on both Roman law and African law. All that
remains is to find open minds to accommodate the ideals of ubuntu in the
same way in which the postulates of justice are accommodated and thus to
create a just and acceptable legal order that suits the unique needs of this part
of Africa.
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