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Traditionalism and Traditional Law*

  • Peter Fitzpatrick


John Berger tells the story of the peasant Lucie Cabrol in terms of her “three lives” because she lived and lived on in three different ways. Readers of the story in Lucie Cabrol's village say she now has four lives. The fourth is in her story. My theme to-day is that representations of knowledge give a life to that knowledge. This life shapes the object of the knowledge. That may appear an intensely academic concern and it is. But I will show that it is, in the same moment, an indispensible practical and political concern.

I start in good company with that body of revisionist scholarship which shows that traditional law or customary law was a creation of the colonial period. For an initial instance, I will depart once only in this lecture from Africa for Oceania. I use this instance because it is compact, irresistible and needs to be better known to legal science. In colonial Fiji, British officials, for the purpose of what the British called good government, sought “to seize … the spirit in which native institutions have been framed”. In the Native Regulations they erected, as one anthropologist put it, “the first code of Fijian custom set down in writing after discussion by representatives from all parts of the Colony and, generally speaking, the great body of custom that it contains has been understood for generations; and so it was not something new and therefore suspect to the Fijians to whom it was applied”.



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1 Staniland, Martin, The Lions of Dagbon: Political Change in Northern Ghana, Cambridge, 1975, 175.

2 Berger, John, Pig Earth, London, 1979, 104192.

3 It is taken from Clammer, J., “Colonialism and the Perception of Tradition in Fiji,” in Asad, Talal, (ed.), Anthropology and the Colonial Encounter, London 1973, 199220. A less compact but highly significant instance beyond Africa that legal science should consider closely is provided by Kahn and refined in debate with the von Benda-Beckmanns. See von Benda-Beckmann, Franz and Benda-Beckmann, Keebet von, “Transformation and Change in Minangkabau Adat”, paper delivered at IUAES-Intercongress, Amsterdam, 04 1981. Kahn, Joel S.Minangkabau Social Formations: Indonesian Peasants and the World-economy, Cambridge, 1980. Kahn, Joel S., Review of Franz von Benda-Beckmann, Property in Social Continuity: Continuity and Change in the Maintenance of Property Relationships through Time in Minangkabau, West Sumatra in 1980 Indonesia Circle, 22, 8188.

4 See text by Clammer, , op. cit., p. 208.

6 Ibid., 218.

7 Ibid., 218–219.

8 Ibid., 204.

9 My examples are confined to those available in English.

10 Twining, William, The Place of Customary Law in the National Legal Systems of East Africa. Chicago, 1964.

11 Staniland, op. cit., vii.

12 Woodman, Gordon R., “How State Courts Create Customary Law in Ghana and Nigeria”, in Finkler, Harold W. (compiler), Papers of the Symposia on Folk Law and Legal Pluralism, Xlth International Congress of Anthropological and Ethnological Sciences, Vancouver, Canada, August 19–23,1983. Ottawa, 1983, 297332.

13 Chanock, Martin, “Agricultural Change and Continuity in Malawi”, in Palmer, Robin and Parsons, Neil, (eds.). The Roots of Rural Poverty in Central and Southern Africa. London, 1977, 396409; Neo-traditionalism and Customary Law in Malawi”, (1978), African Law Studies, 16, 8091.

14 Ibid., 1978, 80.

15 See “Colonialism and Legal Form: The Creation of ‘Customary Law’ in Senegal”, in Sumner, Colin, (ed.), Crime, Justice and Underdevelopment. London, 1981, 90121; Colonialism and Legal Form: The Creation of ‘Customary Law’ in Senegal“, (1981) Journal of Legal Pluralism and Unofficial Law, 19, 4990; Capitalism and Legal Change: An African Transformation. New York, 1981.

16 Traditionalism and Law Reform in Africa. Saarbrücken, 1983.

17 Ibid., 23.

18 Cf. Chanock, Martin, “Making Customary Law: Men, Women, and Courts in Colonial Northern Rhodesia”, in Hay, Margaret Jean and Wright, Marcia, (eds.). African Women and the Law: Historical Perspectives. Boston University, 1982, 53–67, at 5357; and Snyder, , “Colonialism and Legal Form …”, 5051.

19 Fitzpatrick, Peter, Law and State in Papua New Guinea, London and New York, 1980; “The Political Economy of Dispute Settlement in Papua New Guinea”, in Sumner, Colin, (ed.). Crime, Justice and Underdevelopment. London, 1981, 228247.

20 For a more elaborated criticism, see Fitzpatrick, Peter, “Law, Plurality and Underdevelopment,” in Sugarman, David, (ed.), Legality, Ideology and the State, London and New York, 1983, 159181; Marxism and Legal Pluralism”, (1983) Australian journal of Law and Society, 1,2, 4559.

21 Mueller, Susanne, “Barriers to the Further Development of Capitalism in Tanzania: The case of Tobacco”, (1981) Capital and Class, 15, 2354.

22 Ibid., 29

23 “Peasantization and Landholding: A Nigerian Case Study”, in Klein, Martin A., (ed.). Peasants in Africa: Historical and Contemporary Perspectives. Beverly Hills and London, 1980, 177219.

24 See, for example, the collection of Palmer, Robin and Parsons, Neil, The Roots of Rural Poverty in Central and Southern Africa. London, 1977, and the definitive review article by Cooper, FrederickPeasants, Capitalists and Historians: A Review Article”, 1981, Journal of Southern African Studies, 7, 284314.

25 Ranger, Terence, “The Invention of Tradition in Colonial Africa”, in Hobsbawm, Eric and Ranger, Terence, (eds.). The Invention of Tradition. Cambridge, 1983, 211262, at 250.

26 See, Faris, James C., “Pax Britannica and the Sudan: S. F. Nadel”, in Asad, Talal, (ed.). Anthropology and the Colonial Encounter, London, 1973, 153170, at 156.

27 This attribution is somewhat exaggerated but it is sufficiently accurate here.

28 See Faris, , op. cit. at 168.

29 See Ranger, , op. cit. at 251.

31 Ibid., at 258.

32 See Asad, (ed.) op. cit. for example. For women see Sacks, Karen, Sisters and Wives: The Past and Future of Sexual Equality, Urbana, 1982. My criticism does not apply to all anthropology. There has been an opening out to history as evidenced in recent collections: see, for example, Lewis, I. M., (ed.), History and Social Anthropology. London, 1968; and Journal of Southern African Studies (1982) vol. 8: Special issue of revised versions of papers given at the Conference on the Interactions of History and Anthropology in Southern Africa, 09 1980, and in recent legal anthropology: see Francis, Paul, power and Order: A Study of Litigation in a Yoruba Community, Ph.D. Thesis, University of Liverpool, 07 1981; and the work of Snyder cited above. A remarkable approach transcending this criticism has been developed by Comaroff, John L. and Roberts, Simon, Rules and Processes: The Cultural Logic f Dispute in an African Context. Chicago and London, 1981.

33 Cf. Leach, Edmund, Social Anthropology, Glasgow, 1982, 47, 53, 224.

34 Cited above, at p. 248.

35 Marx, to Engels, , 14 06 1853 in Marx, Karl and Engels, FriedrichCorrespondence 1864–1895. London, 1934, at 70.

36 For a summary of this line of argument see, Rawick, George P., From Sundown to Sunup: The Making of the Black Community, Westport, 1972, 128, 134. The term “social mirrors” comes from Jordan, Winthrop D., “First Impressions: Initial English Confrontations with Africans”, in Husband, Charles, (ed.). ‘Race’ in Britain: Continuity and Change. London, 1982, 42–58 at 56.

37 Thiong'o, Ngūgī wa, Petals of Blood. London, 1977, 67.

38 Thiong'o, Ngūgī wa, Writers in Politics, London, 1981, 196.

39 Hart, Keith, The Political Economy of West African Agriculture. Cambridge, 1982, 4.

40 See, for example, Carby, Hazel V., “White Woman Listen! Black Feminism and the Boundaries of Sisterhood”, in Centre for Contemporary Cultural Studies, The Empire Strikes Back: Race and Racism in 70s Britain. London, 1982, 212235.

41 See, for example, White, Luise, “A Colonial State and an African Petty Bourgeoisie: Prostitution, Property and Class Struggle in Nairobi, 1936–1940”, in Cooper, Frederick, (ed.). Struggle for the City: Migrant Labour, Capital and the State in Urban Africa, Beverly Hills, 1983, 167194. Wright, Marcia, “Women in Peril: A Commentary on the Life Stories of Captives in Nineteenth-Century East Central Africa”, (1975) African Social Research, 20, 800819. Marcia, , Wright, , “Bwanikwa: Consciousness and Protest among Slave Women in Central Africa, 1886–1911”, in Robertson, Claire C. and Klein, Martin A. (eds.). Women and Slavery in Africa, Madison and London, 1983, 246267.

42 Quoted in Carby, , op. cit., 224225.

43 Carby, , 225226.

44 See, Cooper, , op. cit., 310.

45 Iliffe, John provides an account of these more straightforward instances: The Emergence of African Capitalism, London and Basingstoke, 1983.

46 See, for example, Poirier, J., “L'Analyse des Espèces juridiques et l'Étude des Droits coutumiers africains”, in Gluckman, Max (ed.). Ideas and Procedures in African Customary Law, Oxford, 1969, 97109.

47 Thiong'o, Ngūgī wa. Detained: A Writer's Prison Diary, London, 1981, 47.

48 Kidd, Ross, “Popular Theatre and Popular Struggle in Kenya: the Story of Kamiriithu”, (1983) Race and Class, 25, 3, 287304, at 303.

49 Ibid., 296–297.

50 Ibid., 301.

51 Berger, , op. cit., at 213.

52 Kundera, Milan, The Book of Laughter and Forgetting, New York, 1980 at 3.

53 At the conference a few participants objected strongly to seeing customary law as a creation of the colonist, arguing that it was something created by the people. A point of the lecture is that customary law has to be seen in both these ways. It has different lives. I wanted to intimate dynamics of identity of its different lives. The lecture is misleading in doing only that. There are integral connections between these lives of customary law in which each takes identity from the other in dialectical relations of opposition and support (cf., Fitzpatrick, , “Law and Societies”, (1984) Osgoode Hall Law Journal, 22). This line is being developed in current work.

* I greatly appreciate the help given while working on this lecture by David Birmingham, Jerry Eades, Lynn Innes, Joel Kahn, Barry Munslow and Luise White

Professor of Law and Social Theory, University of Kent.

Traditionalism and Traditional Law*

  • Peter Fitzpatrick


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