Published online by Cambridge University Press: 28 July 2009
Twenty-four years ago Henry Morris and Jim Read, in Indirect Rule and the Search for Justice, provided a wealth of illuminating information about the history of the legal systems of the East African colonial states. But an even greater merit of their book than its detailed data is its coherence and depth of analysis. These result from their adherence to a constant reference point, the “search for justice”. This concept may still be useful in the study of law in Africa today.
1 Morris, H. F. and Read, J. S., Indirect Rule and the Search for Justice: Essays in East African Legal History, Oxford, 1972.Google Scholar
3 There is little illumination to be gained from current references to notions of “good governance”, since the term appears never to have been defined with sufficient precision to assist in theoretical understanding. This vagueness is apt to conceal the ideological character of programmes initiated or recommended in its name. An instructive comment on the “good governance” discussion is F. von Benda-Beckmann, “Good governance, recht en sociale werkelijkheid: problematische verhouding”, paper delivered at the Dutch Ministry of Foreign Affairs, 25 May, 1993, quoted to E. A. B. van Rouveroy van Nieuwaal, “States and chiefs: are chiefs mere puppets?” in (1996) 37/38 J. Leg. Pluralism (Special Issue on “The New Relevance of Traditional Authority to Africa's Future”, forthcoming).
4 Also relevant is the preamble to the Constitution of the Republic of Ghana, 1992, which refers to other ideals which will be mentioned below: “We the People of Ghana … IN SOLEMN declaration and affirmation of our commitment to; Freedom, Justice, Probity and Accountability; The Principle that all powers of Government spring from the Sovereign Will of the People; The Principle of Universal Adult Suffrage; The Rule of Law; The protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation …”.
5 There is some investigation of the concept, op. cit, 292–94. This passage is referred to again below.
6 Rawls, op. cit.
10 Raz, J., Ethics in the Public Domain: Essays in the Morality of Law and Politics, Oxford, 1994, 173.Google Scholar
11 Rawls, op. cit., 302. The omitted words refer to the just savings principle (explained at 284–293). It seems unnecessary to discuss this here, although I believe it could also be used to illustrate the distance between Rawls' theory and the principles of justice which might emerge from basis of African legal theory and practice.
12 Some critics of Rawls have drawn further attention to his lack of attention to the world outside the West. See e.g. Barry, B., The Liberal Theory of Justice, Oxford, 1973.Google Scholar For a trenchant general critique of the limitations of Western jurisprudence, see Chiba, M., Legal Pluralism: Toward a General Theory through Japanese Legal Culture, Tokyo, 1989Google Scholar, ch. 3. This is further discussed in G. R. Woodman, “Le droit comparé d'ensemble”, (1996) Droit et Société, forthcoming. The possibility and features of a specifically African jurisprudence are discussed in Obilade, A. O. and Woodman, G. R. (eds.), African Law and Legal Theory, Ajdershot, 1995, “Introduction”.Google Scholar
13 Morris and Read, op. cit, vii.
14 It could be objected that this basis for Morris and Read's inquiry is weakened by the colonizers' imperative need to establish, maintain and strengthen their dominance over the African societies they had subjugated, since this clearly took precedence over the demands of justice. Morris and Read are of course not so naive as to ignore this. Their response is that the search for justice was generally pursued when the imperial imperative was not seriously in issue, and that not infrequendy the achievement of a fair degree of justice was seen as a condition for the maintenance of colonial domination (op. cit., 290–91). The latter in particular would seem to be supported by more recent research. See e.g. Groff, D., “The dynamics of collaboration and the rule of law in French West Africa: the case of Kwame Kangah of Assikasso (Côte d'Ivoire), 1898–1922”, in Mann, K. and Roberts, R. (eds.), Law in Colonial Africa, Portsmouth, New Hampshire and London, 1991, 146.Google Scholar
15 Denning, A., The Road to Justice, London, 1955, 4Google Scholar, quoted Morris and Read, op. cit., 292.
16 Morris and Read, op. cit., 292.
19 This argument has been developed also in Woodman, G. R., “European influence on land law and land use in colonial Ghana and Nigeria”, in de Moor, J. and Rothermund, D. (eds.), Our Laws, Their Lands: Land Laws and Land Use in Modern Colonial Societies, Münster & Hamburg, 1995, 5.Google Scholar
20 A discussion of these two perspectives appears in Vanderlinden, J., “Return to legal pluralism: twenty years later”, (1989) 28 J. Leg. Pluralism, 149.CrossRefGoogle Scholar The leading discussion of the nature of deep legal pluralism is Griffiths, J., “What is legal pluralism?” (1986) 24 J. Leg. Pluralism 1.Google Scholar I discuss the theoretical issues in Woodman, G. R., “Ideological combat and social observation: recent debate about legal pluralism”, (1996) 30, 7. Leg. Pluralism, forthcoming.Google Scholar
21 See especially Griffiths, op. cit.
22 E.g. High Court Acts of the Nigerian states; Kenya Judicature Act, s. 3(2); Zambia Subordinate Courts Act (Cap. 45, Laws of Zambia), s. 16.
23 Ghana Constitution, 1992, art. 11(1), (2), (3). In clause (2) after the quoted “rules of customary law” follow the words “including those determined by the Supreme Court of Judicature”. These have a bearing on the argument which is put below regarding “lawyers' customary law”. They do not seem to affect the present argument, since they imply only that the superior courts may by their determinations conclusively declare, or at most alter the customary law, which existed as law before the declaration.
24 It is hoped to develop the argument of this paragraph further in the future. It was stated briefly in Woodman, G.R., “Non-state, unbounded, unsystematic, non-western law”, in Chiba, M. (ed.), Sociology of Law in Non-Western Countries, (1993) 15 Oñati Proceedings, 103Google Scholar, reprinted in Japanese in Chiba, M. (ed.), Ajia-Ho no Kantyo, Tokyo, 1994, 149Google Scholar, and in (1994) 1(1) Sierra Leone Law Journal, 74.Google Scholar
25 This analysis has been developed in Woodman, G. R., “Unification or continuing pluralism in family law in Anglophone Africa: past experience, present realities, and future possibilities”, (1988) 4(2) Lesotho Law Journal 33.Google Scholar
26 Woodman, G. R., “Some realism about customary law—the West African experience”, (1969) Wisconsin Law Review 128Google Scholar; “How state courts create customary law in Ghana and Nigeria”, in Morse, B. W. and Woodman, G. R. (eds.), Indigenous Law and the State, Dordrecht, 1988, 181. In these works I refer to the customary law of deep legal pluralism as “sociologists' customary law”. The intention is to suggest that these are the forms of customary law which have been and would be formulated by social scientists investigating general social practices in African societies, and to suggest moreover that such formulations are also representations from the viewpoints of particular observers, not the customary laws existing “objectively” and operating upon their subjects. In the present discussion I wish to refer to the popular experience of customary laws, while hoping in a future discussion to debate the ontological issue raised by the claim that such phenomena exist.Google Scholar
27 Morris and Read, op. cit, 293.
28 A trenchant presentation of this viewpoint is Josselin de Jong, J. P. B., “Customary law: a confusing fiction”, in Renteln, A. D. and Dundes, A., Folk Law: Essays in the Theory and Practice of lex non scripta, New York and London, 1994, 111.Google Scholar For an equally powerful, more recent statement, see Tamanaha, B. Z., “The folly of the ‘social scientific’ concept of legal pluralism”, (1993) 20 J. Law & Soc. 192.CrossRefGoogle Scholar
29 Griffiths, op. cit., 13–14. The answer to this particular objection (which is not the only objection put by Griffiths in the cited pages, but all that needs mention here) is that there is no reason why we should not characterize extensive diversity in any law as legal pluralism. It is instructive to identify on this basis cases of legal pluralism in Western state laws and to compare them widi cases in African state laws.
30 Shaw, G. B., Man and Superman: A Comedy and a Philosophy, London, 1930Google Scholar, Appendix, “Maxims for revolutionists”.
31 This has been so often observed that the literature on the subject is almost limitless. Two classic texts may be cited: Holleman, J. F., “An anthropological approach to Bantu law (with special reference to Shona law)”, (1949) 10 Rhodes-Livingstone J. 51Google Scholar, reprinted in Obilade and Woodman, op. cit., 5; Gulliver, P. H., (1963) Social Control in an African Society: A Study of the Arusha, Agricultural Masai of Northern Tanganyika, London, 1963.Google Scholar
32 See e.g. the contributions to (1990-1991) 30/31J. Leg. PluralismGoogle Scholar (Special Issue on “The Sociolegal Position of Women in Changing Society”), especially those by K.O. Adinkrah and E.A. Baerends.
33 It does not seem necessary to devote space to the argument that the application of customary law is unjust because its content is obscure. Customary law is by its nature well known to those who are subject to it. The problem of lack of access to knowledge of customary law–and especially lack of access to written information about it–is a problem of the administrator from outside the community.
34 Cf. Read's observation on an earlier period that colonial officers “did not see themselves as subject to the system they operated …” (Morris and Read, op. cit., 292).
35 An example found in recent research is reported in U. Wanitzek, “Bulsa marriage law and practice: women as social actors in a patriarchal society”, forthcoming.
36 Sustained debate with this objective has not been common. An important instance, which perhaps significantly seems not to have been followed, is University of Ife, Integration of Customary and Modem legal Systems in Africa, Ile-Ife, 1971.Google Scholar
37 Examples of this type of development already in force are the Tanzania Law of Marriage Act, 1971 (No. 5), and the Ghana Intestate Succession Law, 1985 (P.N.D.C.L. 111).Google Scholar
38 There are many recorded instances of popular customary law continuing to be effective during periods when the state followed policies of non-recognition. A recently published example is to be found in Bussani, M., “Tort law and development: insights into the case of Ethiopia and Eritrea”,  J.A.L. 43 at 47.Google Scholar
40 The article is usefully discussed in Thornberry, P., International Law and the Rights of Minorities, Oxford, 1991Google Scholar, where it is stated: “It is the only expression of the right to an identity [of minority groups] in modern human rights conventions intended for universal application” (op. cit, 141). Thornberry's discussion supports the definition of the right suggested above, stating that “… what is at stake is the ability of ethnic minorities to preserve their cultural identity and their cultural inheritance, their own culture” (op. cit, 187, emphasis in original).
41 See especially among more recent studies those in: (1987) 25/26J. Leg. Pluralism (Special Issue on “Chieftaincy and the State in Africa”)Google Scholar; (1996) 37/38J. Leg. PluralismGoogle Scholar; Zips, W. and van Rouveroy van Nieuwaal, E. A. B. (eds.), Sovereignty, Legitimacy and Power in West African Societies, Minister and London, 1997 (forthcoming).Google Scholar
42 A good modern discussion of this is Currie, I., “The future of customary law: lessons from the lobolo debate”, in Bennett, T. W. et al. (eds.), Gender and the new South African Legal Order, Cape Town, 1994, 146.Google Scholar An older, classic demonstration of the point is the Bohannans' investigation of how the prohibition by the colonial authorities of bride-exchange among the Tiv had resulted in the new emergence of a practice of bridewealth payments for the purchase of rights in genetricem to women in a society which had not previously known them, and also resulted in variation and uncertainty in the customary law: L. and Bohannan, P., The Tiv of Central Nigeria, London, 1953, 69–73.Google Scholar