oa Comparative and International Law Journal of Southern Africa - A common law for Southern Africa: Roman law or indigenous African law?
|Article Title||A common law for Southern Africa: Roman law or indigenous African law?|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Department of Jurisprudence, UNISA|
|Publication Date||Jul 1998|
|Pages||158 - 173|
|Keyword(s)||Common law, Indigenous African law, Indigenous jurisprudence, Roman Law, Scientific legal framework, South Africa, Theory of justice and Ubuntu|
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 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 of law 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.
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