Introduction -- The nature of African customary law -- Nature, characteristics, limits -- Praxis of customary law -- The use of customary law in other systems -- Constitutional analysis of customary law -- Genesis and upheavals of customary law -- Quest for integrated system -- Quest for African jurisprudence -- Determining the future -- Critique -- Protagonist in the primitive law -- Summary and conclusion.
Africa is the emerging continent of the twenty-first century and will continue to play a major role in the world politics and trade. At the center of the African experience is customary law, which remains one of the most important and quintessential forms of legal, political, and social organization and regulation in the sub-Saharan landscape. Using qualitative and quantitative data, Casper Njuguna, sets a framework for understanding the hybrid nature of this law and creates an appropriate new moniker for it—Neo-Autogenous Sub-Saharan Law (NAS law). This systematic and empirical analysis addresses philosophical issues like human rights, property rights, women’s rights, individual rights and freedoms, family relations, social structures, and political loyalties, which span beyond Africa and African scholars.
This book promotes discussion and understanding of customary law and explores its continued relevance in sub-Saharan Africa. It considers the characteristics of customary law and efforts to ascertain and codify customary law, and how this body of law differs in content, form and status from legislation and common law.
The 18 papers in this volume, originally published in 1969 in English and French, with summaries in the other language, define and analyze in their wider social contexts the fundamental ideas and procedures to be found in African traditional systems of law. They assess the needs and problems of adaptation to changing conditions. The comprehensive introduction by Allott, Epsteina nd Gluckman provides a framework of analysis. It deals with the search for a common terminology in which to analyse and compare the different systems of customary law proceedings and evidence, codification and recording, reason and the occult, the conception of legal personality, succcession and inheritance, land rights, marriage and affiliation, injuries, liability and responsibility.
Some legal rules are not laid down by a legislator but grow instead from informal social practices. In contract law, for example, the customs of merchants are used by courts to interpret the provisions of business contracts; in tort law, customs of best practice are used by courts to define professional responsibility. Nowhere are customary rules of law more prominent than in international law. The customs defining the obligations of each State to other States and, to some extent, to its own citizens, are often treated as legally binding. However, unlike natural law and positive law, customary law has received very little scholarly analysis. To remedy this neglect, a distinguished group of philosophers, historians and lawyers has been assembled to assess the nature and significance of customary law. The book offers fresh insights on this neglected and misunderstood form of law.
A book on legal philosophy, necessarily, focuses attention on law. In addition to this focus, An Introduction to an African Legal Philosophy focuses attention on philosophy. The link between law and philosophy is brought into relief, which is done through an African context. An attempt is made to spell out what is African about legal philosophy without being cut off of African legal philosophy from non-African legal philosophy. The book draws attention to the view that a basic component of African legal philosophy consists of an investigation of what it is to be an African, and because an African is a human being among other human beings, the investigation is about what it is to be a human being. Ubuntuism is an African-derived word that captures this mode of being human. Moreover, because human beings are cultural beings, African cultural context guides the investigation. Inescapably, it is claimed that, every legal philosophy is embedded in a culture. African legal philosophy is not an exception. It is deeply rooted in African culture –a culture that is today shaped, in part, by a European colonialist culture. One feature that will strike one as one reads the book is that the book approaches African legal philosophy as a means of decolonization of African culture. African legal philosophy can accomplish this intelligently and effectively if it is itself decolonized. In doing this it contrasts sharply with mainstream Western legal philosophy.
Customary law and traditional authorities continue to play highly complex and contested roles in contemporary African states. Reversing the common preoccupation with studying the impact of the post/colonial state on customary regimes, this volume analyses how the interactions between state and non-state normative orders have shaped the everyday practices of the state. It argues that, in their daily work, local officials are confronted with a paradox of customary law: operating under politico-legal pluralism and limited state capacity, bureaucrats must often, paradoxically, deal with custom – even though the form and logic of customary rule is not easily compatible and frequently incommensurable with the form and logic of the state – in order to do their work as a state. Given the self-contradictory nature of this endeavour, officials end up processing, rather than solving, this paradox in multiple, inconsistent and piecemeal ways. Assembling inventive case studies on state-driven land reforms in South Africa and Tanzania, the police in Mozambique, witchcraft in southern Sudan, constitutional reform in South Sudan, Guinea’s long durée of changing state engagements with custom, and hybrid political orders in Somaliland, this volume offers important insights into the divergent strategies used by African officials in handling this paradox of customary law and, somehow, getting their work done.
