Published online by Cambridge University Press: 28 July 2009
During the past 50 years, the study of African customary law has been enthusiastically pursued. The growing awareness of this subject has, at the same time, stimulated a critical awareness of the problem of its place in the legal system of an African state. With the attitudes of modern African nations, the place of customary law is necessarily an ambiguous one. Because the colonial governments' application of customary law and European law was determined, primarily, by the race of the litigants, this was frequently perceived as discriminatory and, hence, antithetical to the views of African nationalism. On the other hand, it is true that customary law, the law of the African people, reflects the traditional African culture, whereas the imported systems of Western European law reflect European values and attitudes. At an even more fundamental level, customary law is regarded as representing the old social order. As such, it is often perceived to be in opposition to the new social order represented by the European legal systems. The latter are usually more in keeping with the demands of modern society, particularly in the public and commercial sphere, whereas customary law is suited, rather, to the simple, face-to-face societies of the eighteenth and nineteenth centuries.
1 Even prior to the attainment of independence, the general view was expressed at the Judicial Advisers' Conferences at Makerere and Jos in 1953 and 1956 that the African courts should be integrated. Since then, the problems of reconciling customary law with received systems of European law and the part which customary law should play in the modern legal systems, featured at a series of conferences held in London, 1959–60; Dakar, 1962; Dar-es-Salaam, 1963; Venice, 1963; and Ife, 1964.
2 In the sense that the new African states wanted a single system of law, applicable in a unified hierarchy of courts to all people in the nation. See Allott, New Essays in African Law, 11 and 39; Seidman; “Law and economic development in independent, English-speaking, sub-Saharan Africa”, in Hutchinson, ed., Africa & Law, developing legal systems in African Commonwealth nations, 13.
3 For this reason independence gave African nations an opportunity to “Africanise” their law and diminish the influence of the European law received during the colonial era. In an address to the Ghana Law School for instance, Kwame Nkrumah emphasised the legal tradition of (West) Africa and called for the Africanisation of Ghanaian law:  J.A.L. 103 ff. Similarly, the Senegalese codification committee, mindful of President Senghor';s espousal of the doctrine of négritude, was eager to incorporate rules of African customary law in the draft code: Keba M'baye, “L'expérience sénégalaise de la réforme du droit” (1970) 22 Revue Internationale de Droit Comparé 38.
4 Seidman, op. cit., 9.
5 Blanc-Jouvan, “Remarques sur la codification du droit privé a Madagascar”  Revue Juridique du Congo 160.
6 It is notable that, in South Africa, as well, since the passing of the Native Administration Act (No. 38 of 1927), minimal changes have been effected in customary law, either in its content or in its field of application, by the legislature.
7 It must, at this stage, be clarified that by “codification” is meant the legislative process of imposing law on the nation: Gluckman, (ed.), Ideas and Procedures in African Customary Law, 33. For an interesting discussion of legislation in Africa see David, “Critical observations regarding the potentialities and the limitations of legislation in the independent African states” in Integration of Customary and Modern Legal Systems in Africa, 44–56.
8 At the request of certain Homelands (Caprivi, Kavango Venda, Lebowa, Gazankulu, Ciskei, Qwa Qwa, Bophuthatswana and Kwa-Zulu) the Department of Plural Relations and Development established a Committee to undertake the task of restating the system of customary law in these homelands. This committee is operating under the auspices of the Komitee vir Inheemse Reg.
9 Except in the case of Kwa-Zulu where the intention of the Zulu government is to use the findings of the restatement project to correct and up-date the existing Natal Code of Zulu Law.
10 Kerr, “The reception and codification of systems of law in Southern Africa”  J.A.L. 82, citing Salmond, Jurisprudence (10th ed.), 167.
11 , Hahlo, “Here lies the common law. Rest in peace”. (1967) 30 Modern Law Review 244.Google Scholar
13 Seidman, op. cit., David, op. cit.
14 “La refonte du code civil dans les états africaines” (1962) Annales Africaines 160.
15 “A Civil code for Ethiopia: considerations on the codification of the civil law in African countries” (1962–63) 37 Tulane Law Review 188–189.Google Scholar
16 David, op. cit., “La refonte du code civil”, 161.
17 Redden, The Legal System of Ethiopia, 53.
18 David, op. cit., “La refonte du code civil”, 161.
19 Account was taken of African customary law only when it was sufficiently widespread, not repugnant to Ethiopian ideas of justice, not contrary to economic progress and sufficiently clear and articulate to be expressed in civil law terms: Redden, op. cit., 76.
20 Interestingly enough, it has been noted that informed African opinion is often in favour of the revolutionary approach while European experts favour, initially at least, a more sympathetic approach to customary law: Blanc-Jouvan, op. cit., 161 and 173; David, “La refonte du code civil”, 161.
21 Resolution of the Malagassy Legislative Assembly, 2 June, 1959.
22 Of particular interest is the ambivalent attitude of the legislature to the grande famille, the basic unit of traditional African society. On the one hand was the desire to establish the nuclear family as the basic unit of the modern state, freed from its subservience to the larger family group, yet the important functions of the grande famille were not completely ignored: , Pédamon, “Les grandes tendances du droit de la famille à Madagascar” (1965) 2 Annales de l'Université de Madagascar 59–85.Google Scholar
23 Report delivered during the meeting of the International Committee of Comparative Law in Istanbul, September, 1955. U.N.E.S.C.O., Int. Soc. Science Bul., Vol. IX, No. 1, 1957, 7–85. The introduction of the Swiss civil code into Turkey in 1926 provided the law for only a small urban élite and for the legal profession. It remained foreign and incomprehensible for 80 per cent. of the population; cited by Keuning, “Some remarks on law and courts in Africa”, in Integration of Customary and Modern Legal Systems in Africa, 64.Google Scholar
24 Stone, “A primer on codification” (1955) Tulane Law Review 307.
25 Stone, op. cit.
26 Instruction in the law is an important feature of the traditional initiation ceremonies for men: Hammond-Tooke (ed.). Bantu-speaking Peoples of Southern Africa, 230 ff and 285.
27 Which appears to be the purpose for restating the law in the Homelands. See Allott and Cotran, “Restatement of Laws in Africa”, in Integration of Customary and Modern Legal Systems in Africa, especially at 21 and 37 regarding the reasons prompting the London University, School of Oriental and African Studies, Restatement Project.
28 Hahlo, op. cit., 243.
29 See generally, Deschamps, “La première codification africaine” in Gluckman (ed.). Ideas and Procedures in African Customary Law, 169–177.
30 Deschamps, op. cit., 177.
31 To preserve the African legal tradition for succeeding generations.
32 Although, as Keuning, op. cit., 69–70 cautions, a restatement in itself is often treated as a code.
33 Numerous problems attend the codification of any system of law. The code will, necessarily, embody the ideas, philosophies and values of the period in which it was drafted. Accordingly, no sooner has the code been promulgated than it will require revision: Stone, op. cit., 309, Hahlo, op. cit., 250–252, , Boulanger, “Sur une controverse allemande suscitée par la codification napoléonienne” (1955) 29 Tulane Law Review 182, citing Portalis, “un code … n'est pas plutôt achevé que mille questions inattendues viennent s'offrir au magistrat. Car les lois, une fois rédigées, demeurent telles qu'elles one été écrites; les hommes, au contraire, ne se reposent jamais; ils agissent toujours, et ce mouvement qui ne s'arrête pas et dont effects sont diversement modifiés par les circonstances, produit à chaque instant quelque combination nouvelle, quelque fait, quelque résultat nouveau”.Google Scholar
34 Twining, The Place of Customary Law in the National Legal Systems of East Africa, 32.
35 Paton, A Text-book of Jurisprudence, 190.
36 In his work, Ancient Law. As early as 1814, in Germany, of course, Savigny in his essay, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, had promoted the great movement which regarded law as the expression of the common experience and will of the people. Later anthropological jurisprudence, however, derived its inspiration from Maine rather than Savigny.
37 The classic works in this regard were by Malinowski, Crime and Custom in Savage Society; Llewellyn and Hoebel, The Cheyenne Way; and Hoebel, The Law of Primitive Man.
38 There have been three principal schools of thought regarding the definition of law: the sanction theory postulates that a legal norm is any norm of conduct which implies the application of a sanction in the form of physical coercion: Radcliffe-Brown, “Primitive Law” in Structure and Function in Primitive Society, 212; Diamond, Primitive Law, Past and Present, 195; Hoebel, op. cit., 26. The sanction must, nonetheless, be legitimately imposed by a socially authorised agent. A second theory, inspired by the American Realist school of jurisprudence, regards law as any rule of conduct which will be regularly enforced by a court: Llewellyn and Hoebel, op. cit., 23 ff. The third school suggests that “the law of a given community is the bodv of rules which are recognised as obligatory by its members” Elias, The Nature of African Customary Law, 55, Chap. IV, echoed to some extent by Pospisil, “The attributes of law” in Law and Warfare, studies in the anthropology of conflict, 35, For a useful summary of the various schools, refer to Hooker, Legal Pluralism: an introduction to colonial and neo-colonial laws. Chap. 1.
39 In this paper, a clear distinction must be drawn between “custom” and “customary law”. By “custom” is meant those norms of conduct which are not legal norms. (It is not necessary to distinguish custom from other such norms, viz. morality, etiquette, religion, etc.) “Customary law”, on the other hand, means those legal norms which are derived from the socio-political group, as a whole, rather than from fiats of a political superior, professional lawyer, court or other class in the society vested with the power to make law. Care must be taken that “customary law”, in this sense, is not confused with the common law notion as expressed in Van Breda v. Jacobs  A.D. 330.
40 Hamnett, Chieftainship and Legitimacy, 16; Allott, Essays in African Law, 62.
41 See Gluckman, The Judicial Process among the Barotse, 253 ff. for a full discussion of precedent among the Lozi; also Fallers, Law without Precedent, 18–20.
42 A point made by Van Velsen, “Procedural informality, reconciliation and false comparisons” in Gluckman (ed.), Ideas and Procedures in African Customary Law, 137 ff.
43 Justice and Judgment among the Tiv,213.
44 Op. cit., 212, echoed by Alliot, “The role of justice in the application of the law in the Francophone states of Africa”, in Integration of Customary & Modern Legal Systems in Africa, 74 ff.
45 Gluckman, The Judicial Process among the Barotse, Chap. IV, where he discusses the Lozi courts' reluctance to apply law in the face of a socially determined concept of natural justice. Is it this underlying ideal of dispute settlement which makes “law” so difficult to define in customary law? Certainly, Gluckman, The Ideas of Barotse Jurisprudence, Chap. 1, Nadel, The Nuba, 499 ff. and Evans-Pritchard, The Nuer of The Anglo-Egyptian Sudan, 293–296 found the task well-nigh impossible.
46 Bohannan, op. cit., 61–65.
47 Gulliver, Social Control in an African Society: a Study of the Arusha, 241 notes that the concept of “justice” is irrelevant in dispute settlement amongst the Arusha: rather, they will settle the case by agreeing to something which is as near to their claims as possible in the context of the strength and weakness of the two parties to the negotiations. Cf. Keuning, op. cit., 67, although this author recognises that customary law should continue to be administered in the traditional manner in village tribunals.
48 Holleman, Issues in African Law, 78–83; Gluckman, The Judicial Process, 55 ff.
49 , Holleman, “An anthropological approach to Bantu Law (with special reference to Shona law)”, Rhodes-Livingstone Journal, x, 53–54, Bohannan, op. cit., 61–65.Google Scholar
50 As Hamnett, op. cit., 10 remarks, “Although the term ‘customary’ has misleading overtones for English-speaking lawyers, it has the virtue of bringing out a central characteristic of certain forms of legal order. It deflects attention away from those who teach and interpret the law, and directs it instead towards those who live it and use it“.
51 Issues in African law, 13.
52 For this reason, Hamnett, op. cit., 9 suggests that customary law should not be referred to as a legal “system”.
53 Hamnett, op. cit., 14–15; other features which characterise customary law are the following: Africans are inclined to express themselves communally rather than individualistically; concretely rather than abstractly; and thinking is prompted by magico-religious, rather than rational consideration: Holleman, Issues in African Law, 1–15.
54 Smith, “The sociological framework of law” in African Law: adaptation and development, 26–27; Bohannan, “The differing realms of the law” in Law and Warfare: studies in the anthropology of conflict, 50 ff.
55 Allen, Law in the Making, (7th ed.), 92 ff.
57 Kelsen, The Pure Theory of Law, 225 and 228
58 Allen, op. cit., 101–107.
59 Paton, op. cit., 193; cf. Kelsen, op. cit., 225 ff.
60 Schapera, Government and Politics in Tribal Societies, Chap. II for a general description of the governmental structure amongst certain Southern Bantu peoples.
61 See generally, Schapera, op. cit., 40 ff. and 118 ff.
62 Issues in African Law, 22–47.
63 Holleman, op. cit., 3 and 20.
64 Hammond-Tooke, op. cit., 297.
65 Llewellyn, op. cit., 20–40 and Hoebel, op. cit., 35 ff. advocate the “case method” study of law as one of the best methods of eliciting rules of law.
66 A point appreciated by David, “Critical observations regarding the potentialities and limitations of legislation in the independent African states”, cited above, 47.
67 Holleman, Issues in African Law, 13.
68 Holleman, Issues in African Law, 16–17 following from the fact that there is little differentiation between government, legislation and judicial functions in tribal societies. All these functions are performed by the same person or body of persons.
69 Ancient Law, 13.
70 Smith, op. cit., 27 ”In the homogeneous society the state claims legitimacy as the derivative authorized regulatory institution. In the plural society, … the state seeks to constitute a new society within a legal framework which it legitimates independently”.
71 Hoebel, op. cit., 39 ff.
72 See Allott and Cotran, “Restatement of Laws in Africa”, op. cit., especially 26–27 and 33–36; cf. Poulter, “An essay on African customary law research techniques: some experiences from Lesotho” (1975) Journal of Southern African Studies 181 and , Gluckman, “Limitations of the case-method in the study of tribal law” (1972–73) 7 Law and Society Review 618.Google Scholar
73 See , Pospisil, “E. Adamson Hoebel and the anthropology of law” (1972–73) 7 Law and Society Review 537 ff.; Gulliver, Introduction to “Case studies in law in non-Western societies” in Nader (ed.), Law, Culture and Soc, 17–19.Google Scholar
74 Conducted in seven tribal trust lands in Rhodesia.
75 Seidman, op. cit., 31 citing Schiller, Law in the African World: A Survey of Social Research, 178 and Twining, op. cit., 18.
76 Kerr, op. cit., 96 citing 1903 Comm. 20, 486–7, Vol. 3, 192 per Sir Henry Elliott, ex-Chief Magistrate Transkei.
77 David, “La refonte du Code Civil”, 163.
78 Epstein, Juridical Techniques and the Judicial Process: a study of African customary law, 36.
79 Pound, op. cit., 573 ff.
80 David, “Potentialities and limitations of legislation”, cited above, n. 7, 52, “To draft and enact laws and regulations is not an end in itself, even though certain legislators appear to act as if this were so. Laws and regulations are not useful until they are known, and then only to the extent that they are applied”.