Introduction: Some Notes on "African Customary Law"

Author(s): Simon Roberts

Source: Journal of African Law, Vol. 28, No. 1/2, The Construction and Transformation of
African Customary Law (1984), pp. 1-5
Published by: Cambridge University Press on behalf of the School of Oriental and African Studies
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 INTRODUCTION
SOME NOTES ON "AFRICAN CUSTOMARY LAW"

SIMON ROBERTS*

The papers collected here can safely be left to speak for themselves. Ranging
from Abel's map of some ideal types, conceived at a level of abstraction
comparable to Weber's typology of authority, to Sachs' account of a day's
work in a Mozambique popular tribunal, they representvery fairly the diverse
perspectives from which "customary law" is presently being written about.
They show that we are dealing here with a number of different phenomena,
and that people have seen these phenomena in sometimes radically opposed
ways.
The very label "African Customary Law" has a flavour of the 1950s and 60s
about it, recalling that new and exciting area of study which Allott marked out
single handed and then enthusiastically encouraged others to join him in
developing. The assumption was then that we were dealing with a living,
specifically African repertoire of norms and procedures which could be put to
work in helping to shape some African "future". Since then the nature and
provenance of this repertoire and the merits of that ambition have been the
subject of a lively re-examination; and that discussion was at the heart of the
Lisbon conference where these papers originated.
The profitable continuation of that discussion requires that we are clear
about the range of meanings which "African customary law" may carry. My
own, subjective, marking-out of the field would be along the following lines.
Much writing about African customary law takes for granted that a base-line
can be located in terms of the normative commitments which differentgroups
of Africans entertained, and of the governmental arrangements to which those
Africans were subject, prior to European contact and penetration. So one
conceivable focus of attention must be upon ascertaining the truth about the
pre-colonial, African "past". Second, we may think in terms of the survival,
transformation or displacement of those commitments and governmental
forms during the colonial period. What were the normative commitments of
Africans and what were the governmental realities, under colonial rule?Third,
there was that "customary law", arguably a very different phenomenon,
which was "applied" in the system of courts established in the colonial period,
and which had a life in legislation, government reports, and in the heads of
expatriate administrators and Africans caught up in "indirect rule". The
relationships between these second and third meanings is certainly complex
and problematic; I come back to that. Fourth, there was that "customary law"
which was retrieved and written down, sometimes by Africans themselves
(e.g. Sanbah in Ghana, Matthews in Botswana), but more often by
European observers, typically anthropologists and lawyers. Then there is that
"customary law" which "survives" today, which forms part of the lifeworld of
contemporary Africans. Last, and arguably different yet again, is the law
which is presently administered in "local", "traditional" or "customary"
courts, or in tribunals of "popularjustice". While there may be links between
these phenomena, there are at the least important differences between them
and it is crucial to be be clear which we have in mind when we speak of
"customary law".
* Reader in
Law, London School of Economics and Political Science, University of London.
1

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2 Introduction [1984] J.A.L.
In trying to elucidate these different meanings, I begin with the
African "past". The truth is that we know sadly little about the governmental
arrangements prevailing in different regions of Africa prior to the colonial
period, and less still about the cognitive and normative "maps" which
Africans entertained. Most of this is now, of course, irrecoverable. But, from
what little survives, how far can we now generalise along the grand lines
confidently attempted by Maine, Marx, T6nnies, Durkheim and Weber? All
of these scholars seem to have held recognisably similar conception of
"traditional" societies. These were essentially kin-based groups, in which
"order" was a matter of compliance with a shared repertoire of norms, and in
which the "individual" actor was rather more submerged in the community
than was his European counterpart in the second half of the nineteenth
century. But the differences are important. For Maine, Marx and Weber, this
was a history of government; for Durkheim and perhaps T6nnies too, it was
more a history of different forms of solidarity, a story of "order" rather than
"domination". There are differences too as to how far they were talking of
external constraint, as against internal commitment; about conscious
compliance with rule, as against the habitual and the automatic. For all five,
the "past" was also a construct, a largely unexamined foil against which the
more interesting "present" could be brought into sharp focus. The past was
not being looked to for its own sake. These exercises, while in part constituting
attempts to isolate the definitive qualities of traditional as against modern
societies, also revealed the varied forms of "solidarity" and "domination"
which any society might exhibit.
Overall, the result is that our inheritance of preconceptions about "custom"
and "tradition" from these classical theorists is something of a jumble. We link
custom with the past, and yet it is still with us. We see traditional solidarity in
terms of unthinking, habitual routine and of attentive compliance with rule.
"Tribal" societies may be stable acephalous groups or groups ruled by
despotic patriarchs. Customary law represents at once an affair of norms and
affair of government. Behind all this, there is the transition from the said and
the remembered to the written record, from an oral to a literate culture.
What of all this seems correct today? First, the undisputed shift from an oral
to a literate culture-a transition which is still in progress. Clearly, this was
important-but how important? In what ways does literacy make people think
differently about their world; in what ways does the availability of writing and
print make a difference to government? These questions are widely debated,
but there is not yet general agreement as to how they should be answered.
What is amply clear, however, is that lower level courts in Africa, and
elsewhere in the third world, today provide a unique meeting point of cultures,
and the modes of discourse found in them deserve detailed study.
Many African "societies" of the pre-colonial period certainly WVeresmall,
kin-based groups in which most relationships tended to be multiplex. But no
generic label such as "archaic", "tribal" or "traditional" could hope to bear
the load imposed by the very diverse forms of social and political organisation
now known to have been present in pre-colonial Africa. The presence of tiny,
fiercely egalitarian nomadic bands, as well as large centralised kingdoms,
indicates that Maine was incorrect to see the history of"society" as the history
of "government". Similarly, even in the narrow sphere of the normative we
now know that there was wide variation; that the clarity and detail in which
commitments were articulated and the manner in which they were treated
varied considerably.
Again, these classical theorists all lived in the pre-Malinowskian world.

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Vol. 28, Nos. 1 & 2 Introduction 3

Even if we regard Malinowski as guilty of exaggeration, a vision of mechanical

solidarity, of unrelenting normative constraint, can never by reimposed on
non-western societies. The implications of reciprocal obligation, of inter-
dependence, were just as important as they are today, even if in some cases
specialisation was far less pronounced. However different cognitive and
normative maps may have been drawn, people in pre-colonial Africa actively
navigated their ways around their worlds, just as people do today.
One other aspect of the overall picture has now come to be revised. On the
whole, the classic vision of a customary order was of a rather static condition, a
long-standing equilibrium, in which the rate of change was slow, probably
scarcely perceptible to those involved. Africa in the nineteenth century does
not fit such a picture. In many areas, the period prior to European penetration
was characterised by upheaval, migration and war. In East and Central
Africa, for example, the establishment of British and German rule took place
against a background of chaos brought about by the intrusion of warlike
migrants from the south and slave-traders from the north-east. So, however
we see the establishment of European rule, it was not superimposed upon
existing conditions of tranquil continuity.
When we come to consider the fate of African communities under colonial
rule, radically different views of what happened are now available. In general,
older accounts offer a picture of order and continuity, later ones of abrupt
transformation. The earlier view showed colonial rule being imposed upon a
stable egalitarian consensus. Life in most encapsulated communities was said
to have altered little: at first, because the colonial power lacked the resources to
bring about rapid, ameliorating change; later, because survival and continuity
of "traditional" life was deliberately fostered under the policies of "indirect
rule".
Present accounts (in this volume by Fitzpatrick, p. 20 below, and Snyder,
p. 34 below; elsewhere by Chanock,1 Ranger,2 and Woodman3) tend to
contradict this picture sharply. The revision tells a story of discontinuities,
abrupt transition and coercive domination, which left members of
encapsulated communities exposed to the arbitrary rule of neo-traditional
authorities and drawn to their disadvantage into new forms of economic
relations. Colonial local government is presented as having scanty links with
the past: authorities had to be "found" and placed in charge of formerly
acephalous groups; or, at best, holders of existing office were made to perform
roles quite different to their accustomed ones. The "customary law" which
was recognised in colonial legislation, and developed and "applied" in the
newly established "native" courts was a tendentious montage with slender
links to the past, supportive of the project of colonial rule, and entrenching the
position of elders over juniors, men over women. It has even been given by
some the vivid label of an "invented tradition".4
Overall, this revision is a valuable one, a necessary antidote to earlier
accounts which had postulated a deceptively harmonious and egalitarian
pre-colonial context, and which had over-emphasised the extent to which
long-standing indigenous institutions had been there in the first place and then
survived. There is no doubt, either, of the coercive nature of "indirect rule", or
Martin Chanock, Law, CustomandSocialOrder,(Cambridge, 1985).
2 Hobsbawm and T. O. Ranger (eds.), TheInventionof Tradition(Cambridge, 1983).
3 E.J.
"How State Courts Create Customary Law in Ghana and Nigeria", in Harold W. Finkler
(compiler), Papersof the Symposiaon Folk Law and Legal Pluralism,Xlth InternationalCongressof
Anthropological and EthnologicalSciences,Vancouver,Canada,August 19-23, 1983. Ottawa, 1983,
297-332.
4 See title cited in footnote 2 above.

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4 Introduction [1984] J.A.L.
about the disruption of the lives of Africans through their association, often
involuntary, with European economic operations.
Nevertheless, the new picture is still arguably an incomplete one, and care
must now be taken to avoid distortions of an opposite kind to those present in
earlier sentimental accounts. There are real difficulties in seeing "customary
law" solely in terms of domination. Similarly there are problems in seeing it as
being of entirely recent manufacture. Lastly, there must be doubts as to how
far "colonial customary law" was successfully transmitted to, and assimilated
in, the lifeworlds of most Africans.
First, while the extent and nature of colonial domination needed to be
revealed in view of the degree of consensus implied in earlier writings about
customary law, "domination" cannot be allowed to appear as the total
account. Even if we freely concede the coercive nature of local government in
the colonial period, and the ideological quality of what passed for "customary
law", an exclusively one-way, top-down view of the colonial encounter must
mislead. There is no need to repeat here the now well-articulated and
generally accepted worries about placing too literal a reliance upon a
conception of"sovereign" power.5 "Power" resides at differentlevels, takes on
diverse forms, and runs in all directions.6 So, while "customary law" in the
sense of the repertoire of rules applied in the colonial courts did provide an
instrument of rule, it also offeredavenues of escape and resistence for the ruled.
Similarly, "customary law" in the different sense of the meanings and
commitments which furnished the lifeworlds of Africans, while subject to
covert penetration and co-option,7 also provided the means of qualified
autonomy.
The insistence of scholars like Chanock, Snyder and Ranger that
"customary law" is of recent manufacture, a creature of the colonial period
rather than the pre-colonial past, is helpful in a number of ways. It is essential
that we be prepared to recognise the relationship between contemporary and
past forms as at the very least problematic. Also the association between
"custom" and a supposedly egalitarian context must be questioned. Further,
the specific idea of "invention" restores and ensures prominence for a
conception of agency, the essential notion that custom is linked to the goings
on of living men and women, that it is both at the root of action and the product
of it. But there are difficulties in pressing this view of customary law too far. In
the first place, it risks conflating two separate, if interlinked, spheres; the
"customary law" of the colonial and post-colonial courts, and that which
furnishes the everyday lifeworldof Africans. Second, the flavour of novelty, the
clean break, which "invention" carries, draws attention away from crucial
aspects of what seems to me to be happening. The very strength of customary
law, the source of its supposedly coercive power, lies in the links it can claim
with a past, established, approved state of affairs. Foreign novelties do not lay
claim through existing commitments; yet that is what custom does if it does
anything. So rather than novelty we should be looking for the exploitation of
an existing repertoire, or the artificial sustaining of ancient forms, with
detrimental, constraining effects upon the ruled.
The idea of the invented tradition seems to me to imply an impoverished

5 E.g. the account by M. Foucault in TheHistoryof Sexuality,Vol. 1 (Harmondsworth, 1979).

6 See, specially, A. Giddens, The Constitution
of Society(London, 1984).
7 For a discussion of this process, see, e.g. B. de Sousa Santos, 'Law and Community: the
Changing Nature of State Power in Late Capitalism', in R. L. Abel (ed.) ThePoliticsof Informal
Justice,Vol. 1 (London and New York, 1982), pp. 249-266.

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Vol. 28, Nos. 1 & 2 Introduction 5

and grossly simplistic understanding of the operation of ideology. It calls up a

vision of the manufacture, transmission and assimilation, intact, of some new
world view, and the corresponding destruction of existing cognitive and
normative foundations of the lifeworld. Much more persuasive is an account of
ideology as working with what is already to hand, covertly upon and within an
existing lifeworld, transforming without eradicating. Such an account seems
to me essentially that suggested by Althusser8 and in the specific context of
customary law, by de Sousa Santos.9 But even here we must not neglect the
very significant extent to which some cultures are resistant to transformation
through co-option. Empirical observations reveal wide and interesting
variations in the response of encapsulated groups to the experience of colonial
rule.10
The matter of successful transmission and assimilation raises a final worry
over recent revisions. How far, in fact, wereAfricans affected in their everyday
lives by colonial "customary law"? It would be foolish to minimize the
consequences which economic changes had for Africans during and following
the colonial period, and the operation of colonial customary law was
undoubtedly in some respects supportive of those changes. But it does seem
important that we keep an open mind as to the extent which the world views of
those in power came to the attention of the ruled; and even where they did so,
as to the extent to which they ever came to be shared. In EconomyandSociety,
Weber indicated that he saw the importance of ideology more in its supportive
effect upon the agents of those in power than in commitments which it may
engender among the ruled. More recent writings, including those with a direct
focus upon the colonial period, offer confirmation of that view. 1

8
L. Althusser, 'Ideology and the ideological state apparatuses' in LeninandPhilosophy
andOther
Essays (London, 1977).
9 See title cited in footnote 7 above.
lOSee the example provided by A. Sutherland in "Local Level Dispute Processes in Botswana:
The Yeyi Moot Encapsulated", in (1981) J.A.L. 94-114.
" See, e.g.J. G. Merquior, TheVeilandtheMask(London, 1978), p. 29 and essays in title cited in
footnote 2 above.

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