Exam (elaborations)
Exam (elaborations) Legal philosophy (LJU4801)
- Course
- Legal philosophy (LJU4801)
- Institution
- University Of South Africa (Unisa)
Exam (elaborations) Legal philosophy (LJU4801) 70% pass rate
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LJU4801 Final portfolio3
Eugene Fumani Maluleke
56325924
!" Legal Philosophy
## 25 October 2023
, $"
1.1 is a concept that is not easy to define.1 This is partly because it is difficult to
translate.2 As Tutu postulates, ` is very difficult to render into a Western language. It
speaks of the very essence of being human.` 3 Moreover, many elements go into making a
person humane, which also makes it hard to define this concept. 4 in the South
African context is derived from Nguni and SeSotho languages, 5 expressed as
and , respectively. These
expressions articulate that a human being is a human being through interactions with other
humans.6 As described by the court in ,
Generally, ubuntu translates as humaneness. In its most fundamental sense, it translate as
personhood and morality. Metaphorically, it expresses itself in ,
describing the significance of a group solidarity on survival issues so central to the survival
of communities. While it envelopes the key value of group solidarity, compassion, respect,
human dignity, conformity to basic norms and collective unity, in its fundamental sense it
denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a
shift from confrontation to conciliation.7
echoes the African understanding of humanity. can be characterised as
comprehensive African worldview based on the humaneness, compassion, caring, sharing,
respect, and associated values, promoting a happy and qualitative human community life
in a spirit of family. 8 Some of these values are reflected in theories of communitarianism
and reconciliation, which are both central to African legal philosophy. In the former theory
lies the idea that `the reality of the communal world take precedence over the reality of the
individual life.`9
This notion is based on the importance of the family (viewed from the communal sense) in
African societies.10 The community is considered as more important than the individual.
The emphasises is on the needs and goals of the community as opposed to those of the
individual. Accordingly, the success of the individual cannot come at the expense of the
community. “The belief is that `the welfare of the individual and the community is
inextricably linked- the one cannot exist without the other.` Our interconnectedness means
that the individual suffers, the community suffer too. Thus, when a dispute arises between
individuals, the community would get involved in resolving it. This is because the conflict
between individual automatically affects the community. 11
Since social discord is destructive and group solidarity is considered important, law is seen
as `a conciliatory instrument for the restoration of social equilibrium.` 12 This conciliatory
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