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.
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Rebecca Emiene Badejogbin (2022) studied this question.