Abstract

Conceptualizing legal education in Africa according to western legal thought and theories has been a major setback in the manner that indigenous African law has been theorized in legal scholarship. This affects how it has been interpreted and applied by courts in its exercise of judicial discretion which is a field that is yet to be adequately explored with respect to the application of indigenous law by courts in a pluralistic legal system. This paper presents, based on empirical data, a theoretical basis for the utilization of judicial discretion in the ascertainment and application of indigenous law by formal courts in Nigeria and South Africa and offers an analysis using relevant legal doctrines of centralism, realism and pluralism. At the core of the analysis is Hart’s extrapolation of the conception of law and the place of judicial discretion and how indigenous law fits into it despite its exclusion by Hart.

摘要

根据西方法律思想和理论对非洲的法律教育进行概念化是非洲本土法律在法律学术中的理论化方式的重大挫折。这会影响法院在行使司法自由裁量权时如何解释和适用它，这是一个在多元法律体系中法院适用土著法方面尚待充分探索的领域。本文基于实证数据，提出了尼日利亚和南非正式法院在确定和适用土著法时使用司法自由裁量权的理论基础，并使用集中主义、现实主义和多元主义的相关法律学说进行了分析。