EXPLORING THE PROSPECTS OF CREATING AN AFRICAN IUS COMMUNE OF THE LAW OF OBLIGATIONS USING ROMAN LAW INTERSECTION

Abstract

The paper is motivated by the thinking that the age of autonomous systems of national law is drawing to a close, and that as a first stage exploration, the African continent should develop an African common law of the law of obligations. Its bold assertion is that the roadmap should come from the intersection Roman law provides the two dominant legal families of the common and civil law system; and that the creation of the ius commune should be structured more along the lines of the civilian tradition of the law of obligations. In suggesting a preference to develop the project along the civil law model, it argues that the common law translational process and mediation between norms and social reality through remedy for the realisation of rights, is less suitable than the civilian (Roman) counterpart for developing a science of law. Accordingly, the paper presses the argument that present efforts on harmonisation of European private law is pointer that an African project is feasible, and that knowledge of Roman law could be the very basis of mediation across the common law and civil law legal systems. In doing so, it argues that though the legal architecture of both families’ shows a degree of dissimilarity; their essential building blocks are the same. From this premise it posits that there is little or no logical chasm between the common and civil law to constitute an obstacle to the project, and that if any does exists, it is more theoretical than real because Roman law provides the necessary intersection to understand and harmonize both, with little irritation. The paper therefore provides conceptual and practical justification for an African law of obligations developed along the lines a Roman civilian science of law, combining a codification system with the dialectics of reasoning. The prescription for an African ‘ius commune’ is limited to only the law of obligations, in the first instance, because the paper is grounded in the normative assumption that it is an area of law propositional in character (regulations, rules and principles) and so is more susceptible to logical outlines or Roman codelike analysis. It therefore urges an African ‘rapprochement’ project built on certain shared values derived from Roman law to create a transnational African law of obligations. This paper begins the African conversation.