Abstract
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.
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Notes
- 1.
As Philp describes with regard to republicanism: ‘I take the appeal of republicanism (so understood) to be that it offers a persuasive account of the interconnection between social, material and normative conditions in the polity, and that it recognizes the importance of a high degree of civic virtue in the state.’ (Philp 1996, p. 386)
- 2.
In economic terminology, optimal production of public goods occurs where the collective marginal rates of substitution between public and private goods of all individuals concerned equals the marginal rate of transformation between public and private goods.
- 3.
For the median voter theorem, see Black (1948).
- 4.
In this sense, indirect democracy can be more democratic than direct democracy because it keeps to the ideals of deliberation.
- 5.
The phrase ‘Tammany Hall’ is also used by Weber in his 1919 lecture to refer to ‘powerful political clubs of interested persons’ (Weber 1948, pp. 103, 110).
- 6.
As the sociologist James S. Coleman remarks, ‘Why use English and American common law as a source for identifying elements of social structure from which a theory might be constructed? Why not use French law, or the Code Napoléon on which it is based? Why not Muslim law, or law as it has developed in Eastern Europe and the Soviet Union? The answer is in part that English and American common law, which develops incrementally through precedent, has a stronger claim to reflect the actual structure of social relations in a society than does a formal code, on which European legal systems are based’ (Coleman 1990, p. 146).
- 7.
- 8.
Indeed, the subtitle of Macneil’s first casebook was ‘Instruments for Social Co-operation’.
- 9.
See also the concept of bounded rationality (Simon 1997).
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Burbidge, D. (2014). Connecting African Jurisprudence to Universal Jurisprudence Through a Shared Understanding of Contract. In: Onazi, O. (eds) African Legal Theory and Contemporary Problems. Ius Gentium: Comparative Perspectives on Law and Justice, vol 29. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7537-4_5
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