Decoding Legal Pluralism in Africa

The Journal of Legal Pluralism and Unofficial Law
ISSN: 0732-9113 (Print) 2305-9931 (Online) Journal homepage: http://www.tandfonline.com/loi/rjlp20
Decoding legal pluralism in Africa
Berihun A. Gebeye
To cite this article: Berihun A. Gebeye (2017) Decoding legal pluralism in Africa, The Journal of
Legal Pluralism and Unofficial Law, 49:2, 228-249, DOI: 10.1080/07329113.2017.1351746
To link to this article: https://doi.org/10.1080/07329113.2017.1351746
Published online: 01 Aug 2017.
Submit your article to this journal
Article views: 517
View Crossmark data
Citing articles: 1 View citing articles
Full Terms & Conditions of access and use can be found at

http://www.tandfonline.com/action/journalInformation?journalCode=rjlp20
THE JOURNAL OF LEGAL PLURALISM AND UNOFFICIAL LAW, 2017
VOL. 49, NO. 2, 228–249
https://doi.org/10.1080/07329113.2017.1351746
Decoding legal pluralism in Africa

Berihun A. Gebeye
Comparative Constitutional Law, Department of Legal Studies, Central European University, Budapest,
Hungary
ABSTRACT ARTICLE HISTORY

As legal pluralism has entered the lexicon of policy makers and Received 16 March 2017
development partners in Africa, a clear understanding of the Accepted 4 July 2017
concept is essential. For this purpose, decoding legal pluralism from KEYWORDS
a theoretical, historical and comparative perspective is highly Legal pluralism; law; legal
relevant and reveals that legal pluralism is a unifying device for system; rule of law;
legal systems in Africa. On the one hand, legal pluralism in its classic development; Africa
sense is a device which connects and incorporates pre-colonial laws
into colonial legal systems. In a similar vein, it retains and
transforms colonial laws into post-colonial legal systems. Legal
pluralism neither bifurcates legal systems nor presupposes the
parallel existence of customary legal systems with state legal
systems. Legal pluralism both in its weak and deep sense is a
manifestation of the unity of legal systems and the plurality of laws
in Africa. On the other hand, legal pluralism in its new sense makes
regional and international laws part of state legal systems. This
account of legal pluralism helps the rule of law and development
programs to be aware of the potentials of classic legal pluralism and
the legal systems within which it is operating and encourages a
further study on why deep legal pluralism persists. Moreover, it
opens a space for the incorporation of new legal pluralism with
classic legal pluralism in the rule of law and development programs.
Introduction
Legal pluralism is not only a descriptive framework for the African legal universe, it is also
a “policy field” in the rule of law promotion. The quintessential feature of legal pluralism
in Africa is the existence and application of statutory, customary and religious laws in the
same social field (Woodman 2011). Customary and/or religious laws are applicable in
practice with or without state recognition in many African states (Woodman 1996; Sousa
Santos 2006; Fremont 2009; Rautenbach 2010; Pimentel 2011). Due to the enormous
practical visibility of legal pluralism in the African legal space, much of the scholarship
and policy debate focuses on the positive or negative impacts of this reality for human
rights, democracy and development (Helium 2000; Kuenyehia 2006; Buur and Kyed 2007;
Ndulo 2011). Depending on its impact, there are supporters and opponents of legal plu-
ralism. While the former contend that legal pluralism is reflective of the African sociality
CONTACT Berihun A. Gebeye gebeye_berihun@phd.ceu.edu

© 2017 The Journal of Legal Pluralism and Unofficial Law
THE JOURNAL OF LEGAL PLURALISM AND UNOFFICIAL LAW 229
and therefore should be promoted and accommodated by the state (Woodman 2011), the
latter claim that it is incompatible with the ideals of a democratic constitutional state, in
particular with human rights and democratic principles (Mamdani 1996; Ntsebeza 2006).
In spite of the plethora of literature on legal pluralism in Africa, there is an acute lack of
scholarship on the concept of legal pluralism itself in different time and space, although as
a “policy field” a clear understanding of its notion is required. Despite the huge transfor-
mation of the state and society since colonial times, the concept of legal pluralism and its
underlying assumption remain the same. The application of customary, religious and stat-
utory laws in the same social field, on the one hand, and the assumption of their parallel
application as a member of their own respective legal systems, on the other, is the context
within which legal pluralism is usually discussed. Nonetheless, the installation of constitu-
tional systems since independence and the United Nations led world order have both
transformed this concept of legal pluralism and introduced new legal pluralism in Africa
(Berman 2012). For instance, the existence of coercive regional and international laws in
the field of human rights brings new legal pluralism to African states. As the case else-
where, legal pluralism is a dynamic concept in Africa.
Because of this dynamism, decoding legal pluralism in time and space is vital in Africa
to understand its nature and to appreciate its policy implication on the rule of law and
development (Carothers 1998; Tamanaha 2011b). Important for this purpose is a theoreti-
cal, historical, and comparative purview of legal pluralism. While the theoretical and his-
torical perspective enable us to understand the identity of legal pluralism, the comparative
investigation enables us to draw some useful lessons. To this end, I have employed Joseph
Raz's legal theory to understand the concept of law and legal systems in pre-colonial, colo-
nial and post-colonial Africa with a view to identifying the identity of legal pluralism and
disentangling its notion. Consequently, such investigation aims to inform the currency of
legal pluralism for rule of law and development promotion. Furthermore, I explore the
legal pluralism experience of Western democracies with the objective to show some com-
monalities despite striking differences in legal experience. Thus, a combination of these
perspectives gives a good analytical framework to decode legal pluralism in Africa. The
following caveat should be made from the outset. The reference to legal pluralism in
Africa and Western democracies do not suggest the existence of a uniform African or
Western experience of legal pluralism. It is meant to refer to general trends in Africa and
Western democracies.
After explaining why decoding legal pluralism is important in Africa, this article briefly
discusses legal pluralism as a concept. Then it assesses legal pluralism in Western democ-
racies before the development of the nation-state and in the age of contemporary democ-
racies. By doing so, the objective is to show the existence and transformation of legal
pluralism, on the one hand, and the development of new legal pluralism in Western
democracies, on the other, which Africa shares as a trend despite striking differences in
form and substance. Then it proceeds to examine legal pluralism in Africa through the
investigation of the concept of law and legal system in pre-colonial, colonial and post-
colonial times. This discussion aims to show the identity and nature of legal pluralism in
Africa from a theoretical and historical perspective. Finally, it puts forward the account of
legal pluralism which rule of law and development programs in Africa should take into
consideration.
230 B. A. GEBEYE
Why decoding legal pluralism in Africa is important?

Legal pluralism is no longer a descriptive tool in Africa. It is a “policy field” in the rule of
law promotion and development discourse (Kyed 2011; Faundez 2011; Tamanaha 2011b;
Janse 2013). After the failure of the law and development efforts, International Develop-
ment Agencies and Western donors turned their eyes to non-state justice systems in frag-
ile states and states under democratic transition (Janse 2013; Tamanaha 2015, 2–5). The
law and development programs were state centric and primarily focused on using law for
economic development and social change (Davis and Trebilcock 2008, 899–902). For this
end, legal education and training of lawyers, judges, prosecutors, and police among others,
were considered as vital in the promotion of the rule of law and in bringing social change
and development in much of the developing world. However, after a decade of invest-
ment, International Development Agencies and Western donors learnt that state centric
and legalistic approaches have limitations both in promoting rule of law and bringing
development (Garth 2003; Faundez 2012; Janse 2013; Tamanaha 2015). As a result, they
started looking for alternative and supportive systems. In this endeavour, non-state or
informal justice systems appear to be attractive spaces for rule of law projects and legal
pluralism has become the new grammar of communication (K€otter 2015).
As legal pluralism is a policy field, a clear understanding of it is required if the policy
interventions are to be successful. One of the defects of the law and development pro-
grams is its excessive statist and legalistic approach in promoting rule of law and in bring-
ing development (Tamanaha 2011a). Behind this approach is the assumption that
strengthening the state in the Weberian sense is a necessary condition for rule of law and
development. However, the theory of state in Africa is not based on a Weberian theory.
For Weber, “[a] compulsory political association with continuous organization […] will
be called a 'state’ if and in so far as its administrative staff successfully upholds a claim to
the monopoly of the legitimate use of physical force in the enforcement of its order” (Par-
sons 1947, 154). In contrast, many post-colonial states in Africa have been unable to
broadcast and exercise legitimate use of force in their entire territory (Herbst 2014).
Hence, if states in Africa continue to exist without empirical sovereignty, i.e. without
exercising actual sovereignty in their entire territory, there must be something that scaf-
folds states in areas they cannot reach (Kasfir 1998). And customary laws have been per-
forming this scaffolding role, which the law and development programs forget.
In a similar vein, there is a tendency to assume the existence of parallel legal systems,
i.e. the state legal system and the customary legal systems in the law and society move-
ment (Garth 2003), which gives the theoretical and empirical support to the current rule
of law projects (Baker 2011, 34–38; Harper 2011, 35–36; Kyed 2011, 6–7; Lubkemann,
Isser, and Chapman 2011, 75; Isser 2011, 325–26). Moreover, the state legal system is
positioned against the so-called customary legal systems. Furthermore, the state legal sys-
tem is usually considered illegitimate while the customary legal systems are legitimate.
Because of this, there is an ambition to advocate for a bifurcated theory of law (Tamanaha
2015, 11). According to this view, a theory of law which recognizes the autonomous and
sovereign application of customary legal systems on a par with state legal systems can and
should be adopted (Kyed 2011, 14). This is a society centric approach as opposed to the
state centric approach. This approach marginalizes the role and place of the state in soci-
ety, on the one hand, and forgets the legal, constitutional, regional and international laws
within which society operates, on the other. Like Western democracies as discussed below,
African states as part of the global community of states face new legal pluralism from the
international world order. As a result, for instance, they have to comply with the laws of
the African Union and the United Nations as member states.
While the role of customary or religious laws in the delivery of rule of law and justice
has to be appreciated, for better or worse, they are part of the state legal system. As we
shall see, customary and/or religious laws are parts of the post-colonial legal systems. This
is because (1) states expressly recognize these laws; (2) states tolerate deep legal pluralism
because they do not have the resources to broadcast and implement their laws throughout
their territories, on the one hand, and rule of law has to be served through other means,
on the other. Hence, this has nothing to do with the existence of parallel legal systems
mutually exclusive to the state legal systems. This is due to the fact that the state can
enforce its laws or assert its power anywhere in its territory if it wants to (Ghai 2010). In
addition, as will be discussed, there is no political or legal claim that customary law should
be autonomous from the state legal system and sovereign in its application. The claim is,
and has been, how much the state legal system recognizes customary or religious laws
within the ambit of the constitutional system (Deng 2008; Mutua 2008; An-Na'im 2010b).
Furthermore, despite the differences in degrees, the state legal systems in Western states
have different degrees of penetration and effectiveness between the centre and the periph-
eries (Tamanaha 2015, 13). Due to these theoretical and practical complexities, disentan-
gling and decoding the concept of legal pluralism from a theoretical, historical and
comparative perspective becomes necessary for both policy makers and scholarship.
Legal pluralism: an introduction

“What is legal pluralism?” is a recurring question in the legal and anthropological scholar-
ship. While John Griffiths’ original definition of legal pluralism, as “that state of affairs, for
any social field, in which behaviour pursuant to more than one legal order occurs” (Grif-
fiths 1986, 2), gives a temporary comfort for legal pluralists to adopt his definition (Merry
1988, 870), it is challenged by subsequent scholarship (Teubner 1991; Tamanaha 1993;
Tamanha 2000; Santos 2002). As a result, Griffiths himself revised his definition almost
two decades later. In his own words:
In the intervening years, further reflection on the concept of law has led me to the conclusion
that the words 'law' could better be abandoned altogether for purposes of theory formation in
sociology of law. […] the expression “legal pluralism” can and should be reconceptalized as
“normative pluralism” or “pluralism in social control. (Griffiths 2006, 63–64)
One of the challenges behind defining legal pluralism is the concomitant requirement of
defining law. As HLA Hart reminds as “[f]ew questions concerning human society have
been asked with such persistence and answered by serious thinkers in so many diverse,
strange and even paradoxical ways as the question ‘What is law?’”(Hart 1994, 1). Precisely
because of this, definitions of law and legal pluralism are usually contested; therefore, this
article does not intend to give a general definition for legal pluralism.
However, it is agreed that legal pluralism refers to “a context in which multiple legal
forms coexist” in the same social field (Tamanaha 2011b, 2). Through this lens, every soci-
ety has had a plural legal past and present (Tamanaha 2008). Although legal pluralism is
232 B. A. GEBEYE
originally related to the discovery of “indigenous forms of law” in non-Western societies

(Malinowski 1926; Hoebel 1954; Merry 1988, 869), its presence is also asserted in Western
societies, as it is held that many rooms of justice exist (Galanter 1981). In particular,
Eugen Ehrlich's notion of living law is a seminal one in showing the plural qualities and
ethos of law in Western societies. He describes living law as:
[…] the law which dominates life itself even though it has not been posited in legal proposi-
tions. The source of our knowledge of this law is, first, the modern legal document; secondly,
direct observation of life, of commerce, of customs and usages and of all associations, not
only those that the law has recognized but also of those that it has overlooked and passed by,
indeed even of those that it has disapproved. (Ehrlich 1962, 493)
Furthermore, Sally Falk Moore comes up with a theory of “semi-autonomous social field”,
which explains the plurality of rules and rule making entities in a state. According to
Moore:
[t]he semi-autonomous social field has rule-making capacities, and the means to induce or
coerce compliance; but it is simultaneously set in a larger social matrix which can, and does,
affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own
instance. (Moore 1973, 720; see also Llewellyn 1940)
By taking the Chagga of Tanzania and a New York based dress industry as her social
fields, Moore demonstrates the plurality of laws in all societies. The applicability of legal
pluralism as a descriptive theme of law globally is widely agreed (Berman 2012).
Nonetheless, what is usually called legal pluralism in Africa is somehow different from
the general scholarship in the field of legal pluralism. Much of the legal pluralism scholar-
ship is driven by the quest to formulate a descriptive theory of law (Griffiths 1986).
Because of this, legal pluralism has been advanced against what is called legal centralism.
Legal centralism understands and defines law's normativity and coerciveness in terms of
the state. As Griffiths puts it, for legal centralism, i.e. to the bulk of analytical legal theory:
[l]aw is and should be the law of the state, uniform for all persons, exclusive of all other law,
and administered by a single set of state institutions. To the extent that the other lesser nor-
mative orderings, such as the church, the family, the voluntary association and the economic
organizations exist, they ought to be and in fact are hierarchically subordinate to the law and
institutions of the state. (Griffiths 1986, 3)
In Africa, however, legal pluralism is and has been the application of customary, religious
and statutory laws in the same social field with either state recognition (weak legal plural-
ism) or without it (deep legal pluralism) (Griffiths 1986; Woodman 1996; von Benda-
Beckmann 2002). This is what Sally Merry calls “classic legal pluralism” which refers to
“[…] the intersection of indigenous and European law” in a colonial context (Merry 1988,
872). Needless to say, Europeans consider both customary and religious laws as non-
indigenous law or customary law (Mamdani 1996). Thus, unlike the theoretical debate,
both the scholarship and the policy debate on legal pluralism in Africa have the classic
version in the sense that they write about the intersection of customary and state laws,
and the analysis itself tends towards pitting state law against customary law (Fremont
2009; Pimentel 2011; Woodman 2011).
However, there are two assumptions within which the legal pluralism debate is con-
ducted in Africa. The first is historical; in the sense that state law in Africa is a foreign
imposition, put on the opposite side of the spectrum with customary and religious laws.
This is due to the fact that the formation of the territorial state in Africa (including its
laws and institutions) is the result of colonialism. The second is theoretical cum ideologi-
cal; and related to how the scholarship of legal pluralism is advanced generally. As noted
above, legal pluralism is asserted against the theory and ideology of legal centralism. Due
to these, there is an assumption that parallel legal systems exist; i.e. customary and/or reli-
gious legal systems and state legal systems (Woodman 2011, 52–58).
These assumptions blur the practice of legal pluralism in Africa. Although it is true that
many African states are colonial creations, African customary laws and traditional author-
ities have a role both in the functioning of colonial states and the continuous viability of
post-colonial states. In this process, customary laws have been transformed by the crea-
tion of territorial states, and in turn, they transformed the nature of territorial states, i.e.
African states as we know them. Hence, the parallel and the competing depiction of legal
pluralism in Africa, an assumption that customary legal systems and state legal systems
operate in parallel in their own way, is more a myth than a reality. Furthermore, there is
an apparent paradox in the capability of the African state. As Yash Ghai (2010) observes,
African states are weak internationally but strong locally to coerce different actors or enti-
ties. Given their security, economic and political power, states can coerce and compel tra-
ditional authorities or religious leaders in the way they want. However, given its economic
and infrastructure imperative, on the one hand, and its political advantage, on the other,
prohibiting the application of customary and/or religious laws may not be to their advan-
tage (Englebert 2002). This being the case, the tolerance of African states towards the
application of customary or religious laws rests on their political economy.
Legal pluralism in Western democracies

In this section, I briefly explore legal pluralism in Western democracies in different time
and space to show its development and transformation with the objective to draw some
parallels for Africa as to how legal pluralism emerged and transformed over the years. As
the idea of the state and the international order are the two major factors which influence
and shape the development and transformation of legal pluralism in the West, and these
two factors are applicable to Africa, looking at the experience of Western democracies
offers a useful insight into understanding the history of legal pluralism and its current
trends in Africa. This discussion acknowledges from the outset the huge impact of Euro-
pean colonialism and its influence in the development of state and law in the African
continent.
Before the development of the nation-state

Before the emergence of the nation-state, the legal order in Europe were deeply plural
(Tamanaha 2008, 379). Multiple laws and institutions had been operating in a single social
field. The laws included unwritten customs of various tribes, general Germanic customary
law (written), unwritten feudal law, lex mercatoria, Canon law of the Catholic Church,
and the revived Roman law (Berman 1985, 2006). In a similar vein, there were also various
judicial institutions tasked with the enforcement of these laws. For instance, manorial,
municipal, merchant, guild, church, and royal courts were operating staffed with persons
234 B. A. GEBEYE
related to their respective laws and assuming jurisdiction accordingly (Berman 1985). As
can be imagined from this chaotic legal situation, conflicts arose among the normative
laws and the courts which enforce them. The absence of hierarchy among them made the
legal order deeply plural.
This legal situation is a replica of the society of the time. The institution of the tribe
with or without rulers was the phenomena in Europe as elsewhere (Creveld 1999). Out of,
or as a consequence of, tribal organizations, city-states, empires and states emerged. As
sociologists inform us, a “human social group more than an accidental collection of indi-
viduals,” could not exist without social order (Griffiths 2005, 51). These social orderings
which arise out of custom, religion or both, had played a role in maintaining the social
order albeit at a different scale, time, and place in medieval Europe. In so far as they have
a function to serve, and a capability to survive the test of social forces in time and space,
they played the function of “law” in the positivist sense as observed in colonial and post-
colonial societies.
Due to the emergence of nation-states and the monopolization of violence as a system
of governance, numerous laws had either vanished or gave primacy to state law. As Tama-
naha observes, the fact that law is viewed as “a monopoly of the state is a testimony to the
success of the state-building project and the ideological views which supported it” (Tama-
naha 2008, 379). Law is not only a post-state phenomenon which attains a normative
supremacy over other normative orders, but it also contributes to the emergence of the
nation-state, as the Treaty of Augsburg of 1555 and Treaty of Westphalia of 1648 reveal.
While in Augsburg, the rights of “sovereigns” to decide the religion of people under their
authority was legalized, after almost a century, in Westphalia, separate territorial states
with a sovereign authority were recognized (Spruyt 1996, 191). These treaties established
territoriality and sovereignty within which law operates. Therefore, the centralization of
legal regimes went hand in hand with the emergence of nation-states in Europe.
However, the emergence of the nation-state did not stop the situation of legal plu-
ralism. Corporations which were “fundamental to political life in Europe,” had brought
plural legalities and sovereignties not only in domestic affairs, but also in international
relations (Stern 2013, 26). Corporations were part of the body politic, which included
“cities (like London), towns, churches, learned societies, universities, hospitals, profes-
sional and voluntary associations, and companies,” that generate and enforce norms,
offer some form of citizenship and freedoms, in general assume state-like duties
towards their members (Stern 2013, 21–36). In Moore's words, they are semi-autono-
mous social fields as they had both rule making capacities and mechanisms of enforce-
ment within the state system influencing and influenced by the state. Corporations
played a significant role in the advent of colonialism, more so in the case of the British
Empire. Stern (2013, 27) observes that “English Monarchs did not have the resources
and political will to command trade and colonial life abroad.” Furthermore, they
hardly raised militia or built churches at home. It is corporations which secured “fiscal,
political, and ideological footing” in the colonial enterprises. Similarly, corporations
also played a crucial role in Dutch colonial expansion. For instance, the Dutch East
Indian Company, often considered the first multinational corporation, was capable of
entering into “treaties and alliances, waging just and legitimate war” (Stern 2013, 26).
This is what Hugo Grotius called the “theory of divisible sovereignty” (Keene 2002,
93). As corporate life rose, tribal life had to be transformed into national life, often
times through forceful compulsion and the use of law to this end. In this process, state
law became the supreme and ultimate legal arbiter in the nation-state.
In the age of contemporary democracies

With the end of the Second World War and the triumph of liberalism, however, con-
stitutional democracies faced multi-layered legal regimes from the global, regional, and
supranational socio-economic and political order (Berman 2012). The existence of
coercive international law, for instance, in the field of human rights, trade and eco-
nomic relations, intellectual property, crime, and sports, under the umbrella of the
United Nations or similar international entities, and the development of regional laws
under the European Union (EU) and Council of Europe (CoE), and the Organization
of American States to mention some, forces states to adhere to these laws as a member
(Snyder 1999; Twining 2009; Berman 2012; Mujuzi 2015). The existence of these
multi-layered legal regimes brings a kind of new legal pluralism to states as a commu-
nity of nations. In Europe, in particular, the legal order is plural as a matter of theory
and practice. This is due to the emergence of supra-national constitutionalism under
the EU and the constitutional status of the European Convention on Human Rights
(ECHR) under the CoE (Craig 2001; Sweet 2011 ). As there are national, supra-
national and intergovernmental laws which proclaim supremacy in Europe, there are
multiple legalities and subjectivities in the same social field. In this respect, how courts
at various levels interact and function shows the plurality of the legal orders and their
seemingly inconsistent co-existence as a matter of practice.
In this respect, notable are the cases of Solange I, Solange II, Brunner v. Treaty on Euro-
pean Union, and the decision on the ratification of the Lisbon treaty where the German
Federal Constitutional Court crafted the basis for a harmonious co-existence of Commu-
nity Law (now EU law) and its jurisprudence under the European Court of Justice with
the German law (Dyevre 2011). Also in the context of CoE, the Lautsi v. Italy at the Euro-
pean Court of Human Rights (ECtHR) demonstrates the contradictory legalities between
national law [Italian law] and CoE law [ECHR]. While the ECtHR concludes that a man-
datory display of crucifixes in public school goes against the ECHR in violating the princi-
ple of secularism, the Italian Administrative Court holds that it affirms secularism and is
in line with the ethos of the Italian Constitution (Mancini 2010). These are just some
examples to show how the legal order in Europe is plural not only in theory, but also in
practice. Inherent in these cases is the claim for primacy both in legislative decision and
judicial practice among the seemingly triple sovereigns, i.e. national, supranational, and
intergovernmental, in the European legal space (Harding 2000).
Although there is legal pluralism in the European legal space, the ECtHR holds that
Sharia law is incompatible with the ECHR. In the case of Refah Partisi v Turkey, the
ECtHR decided that the application of Sharia law, even with the consent of the parties, is
incompatible with the convention system. The court reasoned that Sharia as a system of
law is normatively incompatible and procedurally inflexible with rule of law, human rights
and democracy. Nonetheless, given its margin of appreciation doctrine, the possible con-
sideration of similar [religious] or other normative orders is possible and the case for legal
pluralism may be considered (Quane 2013, 687–89).
236 B. A. GEBEYE
Despite this, there is an ongoing debate on the recognition of sharia law in the United
Kingdom. While there where local Imams and Sharia courts which do not have legal back-
ing for the enforcement of their decisions (Pearl and Menski 1998), the establishment of
the Muslim Arbitration Tribunal in 2007 galvanized the sharia debate. Within the prism
of the Arbitration Act of 1996, the Muslim Arbitration Tribunal aims to solve disputes
related to family, marriage, divorce, inheritance, commercial and civil arbitration, and
mosque disputes among Muslims in line with Sharia law, for which it has legal backing
for the enforcement of its decisions. Regardless of the nomenclature, that is whether it is a
Sharia court with a Qadhi or an arbitration tribunal with an arbitrator, there seems to be
openness to accommodate the demands of the Muslim community in the United
Kingdom.
By the same token, within the framework of the 1991 Arbitration Act of Canada and
the establishment of the Islamic Institute of Civil Justice in 2003, some room is open for
sharia law in arbitration in Ontario subject to conformity with Canadian law (Sisson
2015). Unlike Sharia law, ecclesiastical law has been applicable in civil arbitration in West-
ern democracies (William 2010). The point here is not to show why there is a difference in
treatment between sharia and ecclesiastical laws, rather it is to show that there is room for
or recognition of religious law in some limited circumstances in Western democracies
which makes their legal system plural.
Such legal pluralism features are more apparent in democracies where there are indige-
nous and/or minority peoples. Special laws applicable to Native Americans in the United
States (Duthu 2013), indigenous peoples in Canada (Borrows 2005), aboriginals in Aus-
tralia (Nettelbeck et al. 2016), and indigenous minorities including Roma in Europe (Hoe-
kema 2005), are examples for the existence of legal pluralism in Western constitutional
democracies. What follows from this is that, all or a combination of these laws, will apply
within a single social field and make the legal order plural. The grounds for their recogni-
tion or consideration of recognition are related to accommodation of diversity, cultural
rights, religious rights, and the consequent multicultural reality, which is a growing fea-
ture of societies in Western democracies (Raz 1986; Kymlicka 1995). Of course, all these
legal orders are subordinate to the constitutional system and limited in their scope of
application.
Legal pluralism in Africa

A clear understanding of legal pluralism in Africa presupposes a clear concept of law and
legal system. As discussed above, the scholarship on legal pluralism does not have an
agreed conception or definition of law. At the same time, the bulk of theories in the school
of legal positivism, i.e. legal centralism, consider the existence of the state as a necessary
condition for the existence of law. Precisely because of this, I employ Raz's legal theory to
understand the concept of law and legal system in Africa as his theory neither presupposes
the essential existence of state for a theory of law nor grapples with the definition of law as
such. A clear picture of the concept of law and legal system in pre-colonial, colonial and
post-colonial Africa helps us to appreciate the identity, nature and notion of legal plural-
ism. In particular, it will be crucial to respond to (1) whether legal pluralism is a unifying
or bifurcating device and (2) whether parallel legal systems exist in post-colonial states in
Africa.
Law and legal system in pre-colonial Africa

The existence of law in pre-colonial Africa is the genesis for legal pluralism. Without this,
the notion of legal pluralism would have been irrelevant. This is due to the fact that the
legal in legal pluralism pre-supposes the existence of law before European colonization of
Africa. It is widely agreed that pre-colonial African societies had laws in the form of cus-
tomary law (Elias 1956). And much of the ground work for this comes originally from
anthropologists and later supported and developed by legal pluralists (Evans-Pritchard
and Institute 1940; Fenrich, Galizzi, and Higgins 2011). Nonetheless, analytic legal theory
has been rarely used to show the existence of law and legal system in pre-colonial Africa,
most of the time for the right reasons. However, Joseph Raz's legal theory offers a fine per-
spective to look at the African legal universe in different time and space.
Raz addresses the theory of law and legal system in combination (Raz 1980). On the
one hand, Raz identifies three general features of law within which a theory of legal system
rests. These are the normativity, institutionalized and coercive nature of law (Raz 1980, 3).
On the other hand, he conditions the identification and existence of law in its membership
to a legal system. For instance, for Raz, “[…] a particular law is only a law only if it is part
of American law or French law or some other legal system” (Raz 1971, 795). As a result, a
theory of legal system is essential in understanding the concept of law. For this end, Raz
asks four questions to formulate a theory of legal system. These are:
The problem of existence: What are the criteria for the existence of a legal system?
The problem of identity: What are the criteria which determine the system to which
a given law belongs?
The problem of structure: Is there a structure common to all legal systems or to cer-
tain types of legal systems?
The problem of content: Are there any laws which in one form or another recur in all
legal systems or in types of systems? (Raz 1980, 1–2)
According to Raz, a complete theory of legal system must answer the first two
problems, while the last two are not mandatory, as there is no common and singular
structure and content for every legal system. Accordingly, he employs two tests to
address the problem of existence; the preliminary test and the test of exclusion. The
preliminary test is “a test of the general efficacy of legal systems” and there may be
more than one legal system in a society as far as they have efficacy (Raz 1980, 206). If
more than one legal system has efficacy in a society, the test of exclusion will be oper-
ational to identify the efficacious legal system in that society. However, in order to
apply this test, the legal systems should be mutually exclusive (Raz 1980, 207). For
instance, the legal systems of states are mutually exclusive to each other, while the
existence of religious and state legal systems are not. By addressing the problem of
existence and identity, Raz holds that there are multiple legal systems such as the state,
the church, and the tribe. What follows from this is that there are non-state laws and
non-state legal systems. Because of this, Raz liberates the concept of law and legal sys-
tem from the theory of the state (Austin 1832; Kelsen 1945; Hart 1994).
The application of Raz's legal theory in pre-colonial Africa helps us to identify the exis-
tence of pre-colonial legal systems and pre-colonial laws. Central to the application of this
238 B. A. GEBEYE
theory is the idea of custom. Custom in pre-colonial Africa as a matter of fact is norma-
tive, as it guides human behaviour, institutional, as traditional authorities or similar pre-
colonial institutions are in charge of its enforcement, and coercive, as there is a punish-
ment for its violation (Evans-Pritchard and Institute 1940; Elias 1956; Bennett 2004;
Woodman 2011). Thus, custom fulfils the three general features of law identified by Raz.
However, this by itself is not enough as custom exists as part of a certain customary sys-
tem. Therefore, the existence of a customary system is a necessary condition for the exis-
tence of a specific custom.
To this end, we should address the twin problems of a theory of legal system, i.e. the
problem of existence and the problem of identity in pre-colonial Africa. In concrete terms,
the problem of existence is related to whether a customary system (legal system) exists in
the Ashanti, Yoruba or Buganda. The answer is in the affirmative as each of them had
their own customary system in pre-colonial Africa. Precisely because of this, the custom-
ary systems of the Ashanti are mutually exclusive with that of the Yoruba and the
Buganda or vice versa. However, the relative homogeneity of pre-colonial societies makes
the test of exclusion irrelevant within themselves as a single customary system, i.e. legal
system, existed in each pre-colonial society.
Assessing the pre-colonial African legal experience through Raz's legal theory has at
least three advantages. The first is it solves the recurring question in the discussion of cus-
tomary law in Africa; i.e. where to draw a line between custom as a social convention and
custom as a law. By adopting the three features of law, Raz offers a better explanation to
identify which custom is a law. For instance, the overriding values of cieng of the Dinka
and Ubuntu of Southern Africa are human relations guided by humanity, compassion
and community (Makgoro 1998; Middleton 2004). Nonetheless, these are ideals of human
relations, the violation of which may not lead to a legal consequence. However, if one kills
another human being, mistreats ones wife, or takes others’ property, this person will face
legal sanctions (Evans-Pritchard and Institute 1940; Ayisi 1992; Mutua 1995, 347). Sec-
ondly, it makes the identity of pre-colonial African legal systems and laws more intelligi-
ble as it offers the analytical tool to understand each pre-colonial customary system in
itself as a unit of legal analysis. Finally, it makes the pre-colonial African legal universe
palatable to standard legal theory and accordingly subject legal evolution or transforma-
tion into rigorous theoretical exposition, as the idea of the state is also an African phe-
nomenon as elsewhere. Hence, after establishing the existence of law and legal system in
pre-colonial Africa, the next section examines the imposition of European law as a supe-
rior legal order in colonial Africa and explores the status and role of pre-colonial legal sys-
tems and laws.
Law and legal system in colonial Africa

The importation of European laws into the African continent in the nineteenth century is
the classic expression of legal pluralism. The Berlin Conference of 1884–1885 established
the legal basis for the scramble for Africa and the sovereignty of Europeans in the territo-
ries they occupied (Gates and Appiah 2010). Accordingly, English common law, French
civil law, and Roman–Dutch law among others were set in motion as superior legal orders
in colonial Africa. This raises a fundamental question in legal theory, i.e. whether the pre-
colonial legal systems were abolished or ended by the imposition of European laws. I
argue that answering this is fundamental for African constitutional, political and develop-
ment discourse. In this part, I explore and examine how colonialism ended the pre-colo-
nial legal systems, and how the colonial legal systems incorporated some pre-colonial
laws through the device of legal pluralism.
The (dis)continuity of a legal system is one of the fundamental questions in analytic
jurisprudence. In spite of the differences as to when and how a legal system ceases to exist,
it is agreed that a revolution is the main factor (Halperin 2014; Brunkhorst 2014). For
Austin, a legal system ceases to exist whenever there is a change of the supreme legislator.
As he sees law as a command of the sovereign, the change in the sovereign brings a new
legal system (Austin 1832). However, by putting the basic norm in lieu of the sovereign,
for Kelsen, the legal system ceases to exist if there is a change in the basic norm (Kelsen
1996, 195). According to him, what matters most is not the change of the sovereign, but
the change of the power conferring norms (Kelsen 1945, 111). For both Austin and Kel-
sen, revolution and/or unconstitutional change of rules brings the end of a legal system.
Although Raz agrees with them in the sense that revolution can discontinue a legal sys-
tem, he posits two conditions for such materialization. First “… continuity depends on
the interaction of legal and non-legal norms, and the extent and manner of their change;
and second, that among the legal norms concerned some are more relevant than others”
(Raz 1971, 814). By differentiating the theory of law from the theory of the state, Raz sug-
gests that revolutions or other political changes in a state may not necessarily bring a new
legal system. However, the end of the state for sure brings the end of its legal system (Raz
1971, 812).
The suspect ground for the discontinuity or end of pre-colonial legal systems in Africa
is colonialism. Colonialism had re-imagined socio-economic, political and legal life in
Africa. It put a new order in which socio-economic and political life was exercised within
in bounded polities called states. For this purpose, different pre-colonial communities
were forced to come together and at the same time separated from their original commu-
nal and ethnic affiliation to form colonial states. In short, it distorted the pre-colonial pop-
ulation and territory (Brownlie and Burns 1979). Furthermore, the colonial penetration
changed the notion of pre-colonial government and sovereignty (Young 1994). Tradi-
tional authority and its conception of power as a system of government, which claims
finality in pre-colonial African societies, were abolished (Crowder 1964). Custom had
ceased to be the basis for the organization of traditional authority and the exercise of
power (Afigbo 1972). Its central ethos was abrogated and substituted by new rules and
practices of the colonial state (Snyder 1981; Moore 1986; Chanock 1989). The colonized
people had lost control of their laws and institutions. In other words, they lost their sover-
eignty. As a result, colonialism ended the pre-colonial legal system and established a new
colonial legal system.
It should be made clear from the outset that there were no single or uniform colonial
legal system in British colonial Africa, let alone in the whole of the continent. For instance,
the colonial legal systems in much of British West and Southern Africa were composed of
(1) Orders in Council of the Crown, which set the general framework for colonial gover-
nance and the application of “common law, the doctrines of equity and statutes of general
application in force in England,” and (2) Imperial legislation of the parliament of West-
minster and local legislation from the colonies either from the governor or governor in
council or a law making body (Anderson 1959, 433–435; Eybers 1969). While in much of
240 B. A. GEBEYE
Eastern Africa, they were comprised of (1) Orders in Council of the Crown, Civil and Pro-
cedure Codes of India and the other Indian Acts in force in the Colony – which included,
for instance, written laws on criminal, evidence, contract, and property issues – and “com-
mon law, the doctrines of equity and statutes of general application in force in England,”
and (2) Imperial legislation of the parliament of Westminster and local legislation from
the colonies (Anderson 1959, 434–435). In French colonial Africa too, the laws were com-
posed of metropolitan legislation and local enactments of the governor of the colony
(Hooker 1975, 221–222).
Through the device of legal pluralism, some parts of pre-colonial laws, in particular in
the field of private and personal law, were incorporated into the body of the colonial legal
systems. There were at least two requirements for the recognition and application of cus-
tomary law in colonial Africa. First, customary law should not contravene any written or
common law. Second, the application of customary law should not be contrary to the
principle of natural justice, morality, public order, equity, and good conscience – which is
usually called the repugnancy test (Moore 1992; Mamdani 1996, 115). Thus, customary
law was a law because it was part of the colonial legal system . As a result, both its substan-
tive and procedural content and legality depended on the colonial legal system. Obviously,
this is the weak form of legal pluralism in colonial Africa.
However, one might argue that deep legal pluralism was extensively the case in colo-
nial Africa. And accordingly, the pre-colonial legal system existed in parallel with the
colonial legal system. While this argument looks attractive and is tempting, a serious
consideration reveals that the argument is unsustainable. First, the pre-colonial legal
system and the colonial legal system were mutually exclusive. As noted in the previous
part, the pre-colonial legal systems were final in their own respective pre-colonial com-
munities as there were no external standard or power which gave them validity. In other
words, they stood in their own as manifestations of sovereign legal systems. However,
they lost their status as a final system of legal arbiter with the advent of the colonial legal
system. Both as a matter of fact and law, the colonial legal system exercised and claimed
final power in the domain of the colonial state while the pre-colonial legal systems could
not. Second, the existence of deep legal pluralism in colonial Africa is related to its polit-
ical economy. As Mamdani (1996, 109) observes, the importation of European laws into
the colonies in Africa were neither simply to use them as dispute settlement sites nor an
apparatus of control. European colonizers neither had the interest to build states and
establish institutions to deliver rule of law and justice, nor had the desire and resources
to broadcast their laws throughout their colonies (Herbst 2014). They were primarily
applicable to Europeans and non-Africans (Mamdani 2012). Furthermore, unlike the
case in Europe, the colonial legal systems were enforced by a single institution run by a
colonial governor (Mamdani 1996; Hussain 2003). Hence, the legislative, executive and
judicial functions of government resided in this person. Thus, so long as deep legal plu-
ralism ensured governability of the large African mass and enabled the colonial state to
advance its colonial interest, deep legal pluralism was more of an asset than a liability
(Seidman and Seidman 1984).
Law and legal system in post-colonial Africa

The installation of a constitutional system as a condition for independence is one of the
defining features in understanding law and legal system in post-colonial Africa (Seidman
1969; Le Vine 1997). Despite the numerous constitution making, unmaking and remaking
processes, the idea of having a constitution as a supreme law of the land stands out as a
common denominator for constitution builders in Africa (Ogendo 1993; Fombad 2014).
At the same time, however, it is a common practice that laws from the ancien r egime are
retained subject to further legislative repeal on a case by case basis (Prempeh 2007, 502).
Hence, the introduction of written constitutions with the attainment of sovereign state-
hood have tranformed the colonial legal system into a post-colonial legal system. Unlike
the colonial legal system, the post-colonial legal system is based on a written constitution.
In this part, I explore what the post-colonial legal system looks like, and examine how
legal pluralism figures in the system, and assess why deep legal pluralism still persists.
The foundation and the continuous viability of post-colonial states in Africa are usually
tied to the existence of constitutions as such, even without their practice. There is a com-
mitment to have a constitution as a source of legitimacy and a means for constituting the
polity without which, in the African political elite's mind, the polity have no “legitimate
and sovereign existence” (Ogendo 1993, 67). This is the African political paradox Ogen-
deo describes as “Constitutions without Constitutionalism.” Civilian dictators and mili-
tary generals alike adopt a constitution and claim to rule accordingly. Despite the flagrant
violation and disregard of the constitutional rights and limitations, African states and
their leaders have been loyal to the idea of having a written constitution. It is no surprise
then that constitutions are adopted in Africa within a short time without paying much
attention to the process and substance (Ndulo 2001). Regardless of this, in principle, a
written constitution is at the top of the legal system in the post-colonial states in Africa.
The constitutions of every African state contains a supremacy clause which declares
that any legal or normative order is invalid if it contravens the constituiton. For instance,
section 1.2 of the Ghanian Constitution reads as follows: “This Constitution shall be the
supreme law of Ghana and any other law found to be inconsistent with any provision of
this Constitution shall to the extent of the inconsistency, be void.” This is a typical
supremacy clause found in every African constitution. Thus, the post-colonial legal sys-
tems in Africa are structured hierarchically, resembling Kelsen's hierarchy of Norms
(1996, 221). This is due to the fact that while the constitution is at the top, statutes,
decrees, orders, and practices in their order form the pyramid of the legal system.
Supreme courts or specialized constitutional courts or similar institutions are given the
power of constitutional review to keep the supremacy of the constitution intact, both in
spirit and content in the pyramid of the legal system.
As with the colonial legal system, the post-colonial legal system recognizes customary
laws in limited circumstances subject to constitutional conformity. In order to clearly
appreciate how customary laws have been treated in constitutions and constitutional
reforms in Africa, it is helpful to look at them in terms of the sequence of these constitu-
tions and reforms. Helpful for this endeavour is the constitution making wave metaphor
(Elster 1995). There are four waves of constitution making processes in post-colonial
Africa (Hessebon 2014). Throughout Africa's four constitution-making waves, customary
laws have been recognized despite their brief suppression in the second wave. The first
242 B. A. GEBEYE
wave is the 1950s and 1960s independence constitutions, which were necessary for the
juristic and empirical existence of new states. In this wave, three approaches were followed
concerning customary laws (Banda 2005, 20). These were:
(i) maintaining the colonial legal system which allows the application of customary
laws - this approach was followed mainly by Anglophone Africa;
(ii) avoiding the customary or native courts and establishment of a general court sys-
tem which also applies customary laws- this was followed largely by francophone
and lusuphone Africa; and
(iii) setting an integrated court system where customary courts can handle first instance
customary law claims and higher courts review through a system of appeal.
The second wave refers to the constitutions of the 1960s to 1980s that abrogated or
seriously altered independence constitutions on claims of nation building, development
and transformation. As a result, the application of customary laws was either abolished or
seriously limited. For example, some parts of customary laws in Tunisia and Ethiopia
were abolished, and chieftaincy in Ghana, Mozambique, and Zimbabwe were seriously
altered, and some of the traditional powers were abolished (Banda 2005, 21; Buur and
Kyed 2007).
The third wave comprises post-cold war constitutions which were adopted in the
1990s. Unlike the second wave, the third wave was more favourable to customary laws
and they figure much in the constitutions of numerous African countries (Kuenyehia
2006; Cuskelly 2011; Ndulo 2011). Moreover, the right to culture is recognized in consti-
tutions, which is argued in theory and utilized in practice (to some extent) to include the
application of customary laws and traditional authority (Bennett 2004). Similarly, Islamic
law has been recognized in many African countries where there is a significant Muslim
population (An-Na'im 2010). The fourth wave, which is underway, has been accommoda-
tive of customary and/or Islamic laws. For instance, in the recent constitutions of Angola,
Kenya, Zambia, Zimbabwe, and South Sudan, customary and/or Islamic laws are recog-
nized (Green 2013). Hence, this is the constitutional framework within which legal plural-
ism has been applicable in post-colonial Africa. In other words, customary laws (including
Islamic law) are applicable precisely because they are part of the post-colonial legal
system.
Although the constitutions in Africa provide grounds for the application of legal plu-
ralism, it is a common practice that deep legal pluralism exists, in particular in rural areas.
This being the case, one might ask what is the source of this deep legal pluralism if not
the customary legal system rooted in the pre-colonial legal universe. As partly stated in
the previous part, the claim that deep legal pluralism exists as part of the customary legal
system is more a myth than a reality. This is mainly a myth for the following two reasons.
First, the post-colonial state as a sovereign entity is accepted by the political elite who
inherited the colonial state, legitimated by the Organization of African Unity (the now
African Union), and accepted by the majority of its inhabitants (Touval 1967; Englebert
2009; Young 2012). Although the post-colonial African state lacks the empirical sover-
eignty to broadcast its power and laws throughout its territory, its numerous ethnic
groups neither have the ambition to secede, nor defy the sovereign power of the state
(Jackson and Rosberg 1982; Jackson 1992; Englebert 2009; Young 2012). This avoids the
existence of a parallel legal system, as the state is accepted as a sovereign entity.
Second, during state collapse or failure, customary laws and traditional authorities play
a scaffolding role in maintaining law and order in the state. During state reconstruction,
customary laws and traditional authorities are recognized in limited circumstances. For
instance, this is the case in Mozambique,), Angola, ), Sierra Leone ) and Somalia (Buur
and Kyed 2007). Therefore, in the post-colonial state, the state legal system is accepted
both in principle and in practice, and the outstanding question has been how much the
state legal system should accommodate customary and/or religious laws. The existence of
deep legal pluralism is, therefore, related to a limited state capacity and its political econ-
omy. Thus, deep legal pluralism persists neither as part of a parallel customary and/or reli-
gious legal system as a matter of fact, nor as a political, legal or moral claim that
customary and/or religious legal systems should exist as mutually exclusive systems with
the state legal system. This is a practical manifestation of limited state capacity, on the
one hand, and its political economy in the governance and political systems of the post-
colonial African state, on the other. Therefore, the policy interventions on legal pluralism
should at least consider the issue of limited state capacity and the political economy of
deep legal pluralism.
Restating legal pluralism for rule of law and development policy

Both as a result of the accident of history and subsequent conscious efforts, the concept of
legal system in Africa is the syncretized result of state laws and customary and/or religious
laws. In this syncretized process, legal pluralism has been a unifying rather than a bifur-
cating tool for the legal systems in Africa. This is due to the fact that legal pluralism brings
different laws which drive their substantive and procedural content from extra-state sour-
ces into the state legal system. In spite of its unifying factor, both a comparative preview
of legal pluralism in Western societies and the African own experience suggest that legal
pluralism is neither essentially good, nor inherently bad.
The persistence of customary or religious laws depends not primarily on a legislative or
state support but mainly on their political economy in society. Of course, this should be
distinguished from claims by a specific group of people, for instance, indigenous peoples,
ethnic and religious minorities, who want their special laws to be recognized under the
state legal system. In the majority of cases, however, living under customary law is a fac-
tual reality. If states manage to reform their laws according to the needs of their respective
societies and make their laws accessible and build a capacity to execute these laws, there
seems to be no reason why people still opt for a customary law or any other law, at least
in principle. As can be seen from the Western experience, state laws reflect and incorpo-
rate the socio-economic and cultural contexts of their societies, and accordingly the need
for customary laws and their political economy vanished. As the state is a universal phe-
nomenon, useful lessons with proper contextualization can be drawn from the legal plu-
ralism experience of Western states both in rule of law promotion and development to
Africa.
Furthermore, the rule of law and development support from International Develop-
ment Agencies and Western donors should ultimately enable African states to
244 B. A. GEBEYE
consolidate their constitutional system and build their capacity to perform their
regional and international obligations as a community of states. It is known that
behind state collapse, failure or instability, is a government and political crises which
arise from absolute or unlimited exercise of power, violation of human rights and bla-
tant disregard of constitutional limitations (Zartman 1995; John 2010). It is in this
time of crises that non-state justice systems are more visible (Buur and Kyed 2007).
However, the fact that non-state justice systems are more visible in the event of state
collapse or failure does not suggest that they can and should be visible in state recon-
struction. While their contribution should not be ignored in state reconstruction, they
should be approached as part of the state building effort. In addition, states have
regional and international obligations, in particular, in the field of human rights and
democracy, which rule of law projects should take into consideration. Hence, the rule
of law and development policy interventions should strike a balance between classic
legal pluralism, where customary and religious laws are the main pillars, and new legal
pluralism, where human rights, democratic and constitutional principles are its domi-
nant themes. In concrete terms, deploying non-state justice systems as an alternative
or complementary avenues for the provision of rule of law and development in Africa
should take into account the human rights, and the democratic and constitutional
commitments of states. This account of legal pluralism, i.e. being a unifying device for
legal systems and incorporating plural laws, brings unity of purpose and harmony in
the provision of rule of law and development in Africa.
Conclusion
Decoding legal pluralism from theoretical, historical and comparative perspectives
shows that legal pluralism is a unifying, rather than a bifurcating device for legal sys-
tems in Africa. It connects and transforms the pre-colonial laws with the colonial legal
systems. In a similar vein, it retains and transforms the colonial laws into post-colonial
legal systems. Hence, legal pluralism describes unity of legal systems and plurality of
laws. While weak legal pluralism is the manifestation of the unity of legal systems,
deep legal pluralism shows the practical limitations of states to broadcast and enforce
their laws throughout their territories, on the one hand, and its political economy, on
the other. However, deep legal pluralism is not a testimony that a legal system parallel
to the state exists.
This account of legal pluralism is helpful in designing and implementing rule of law
and development projects. First, engagement with non-state justice systems should be
seen as part of state building and practically foster state capacity. Second, the political
economy of deep legal pluralism should be studied in each context. As evidenced from
the experiences of Western democracies, legal pluralism is neither essentially good, nor
inherently bad. Therefore, there is no essentially compelling reason to conserve customary
laws or something inherently bad in recognizing and channelling rule of law through
them. In addition, rule of law and development projects should consider the implications
of classic legal pluralism to new legal pluralism and vice versa. Lastly, legal pluralism and
rule of law projects should advance and consolidate the constitutional systems established
in African states.
Acknowledgements
The author is gratful for Professor Mathias Moschel for his invaluable comments, suggestions and
encouragement. He also would like to thank the two anonymous reviewers for their helpful and
constructive comments and suggestions. However, the author is solely responsible for any errors or
shortcomings.
Disclosure statement
No potential conflict of interest was reported by the author.
References
Afigbo, Adiele E. 1972. The Warrant Chiefs: Indirect Rule in Southeastern Nigeria, 1891–1929,
London, Longman.
Anderson, J. N. D. 1959. “Colonial Law in Tropical Africa: The Conflict Between English, Islamic
and Customary Law.” Indiana Law Journal 35: 433.
An-Na'im, Abdullahi A. 2010. African Constitutionalism and the Role of Islam. Philadelphia: Uni-
versity of Pennsylvania Press.
Austin, John. 1832. The Province of Jurisprudence Determined. London: J. Murray.
Ayisi, Eric O. 1992. An Introduction to the Study of African Culture. Nairobi.Kampala: East African
Publishers.
Baker, Bruce. 2011. “Justice and Security Architecture in Africa: The Plans, the Bricks, the Purse
and the Builder.” The Journal of Legal Pluralism and Unofficial Law 43(63): 25–47.
Banda, Fareda. 2005. Women, Law and Human Rights: An African Perspective. Oxford: Hart.
von Benda-Beckmann, Franz. 2002. “Who’s Afraid of Legal Pluralism?” The Journal of Legal Plu-
ralism and Unofficial Law 34(47): 37–82.
Bennett, T. W. 2004. Customary Law in South Africa. Lansdowne: Juta.
Berman, Harold J. 1985. Law and Revolution, the Formation of the Western Legal Tradition. Cam-
bridge: Harvard University Press.
Berman, Harold J. 2006. Law and Revolution, II: The Impact of the Protestant Reformations on the
Western Legal Tradition. Cambridge: Harvard University Press.
Berman, Paul S. 2012. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cambridge:
Cambridge University Press.
Borrows, John. 2005. “Indigenous Legal Traditions in Canada.” Washington University Journal of
Law & Policy 19(1): 167–223.
Brownlie, Ian, and Ian R. Burns. 1979. African Boundaries: A Legal and Diplomatic Encyclopaedia.
London: C. Hurst & Co. Publishers.
Brunkhorst, Hauke. 2014. Critical Theory of Legal Revolutions: Evolutionary Perspectives. London:
Bloomsbury Publishing.
Buur, Lars, and Kyed, eds. 2007, State Recognition and Democratization in Sub-Saharan Africa: A
New Dawn for Traditional Authorities, Maria, New York: Palgrave Macmillan.
Carothers, Thomas. 1998. “The Rule of Law Revival.” Foreign Affairs 77(2): 95–106.
Chanock, Martin. 1989. “Neither Customary Nor Legal: African Customary Law in an Era of Fam-
ily Law Reform.” International Journal of Law, Policy and the Family 3(1): 72–88.
Craig, Paul. 2001. “Constitutions, Constitutionalism, and the European Union.” European Law
Journal 7(2): 125–150.
Creveld, Martin van. 1999. The Rise and Decline of the State. Cambridge: Cambridge University Press.
Crowder, Michael. 1964. “Indirect Rule: French and British Style.” Africa: Journal of the Interna-
tional African Institute 34(3): 197–205.
Cuskelly, Katrina. 2011. “Customs and Constitutions: State Recognition of Customary Law around
the World.” International Union for Conservation of Nature and Natural Resources. https://por
tals.iucn.org/library/efiles/documents/2011-101.pdf.
246 B. A. GEBEYE
Davis, Kevin , and Trebilcock, Michael, 2008. “The Relationship Between Law and Development:
Optimists Versus Skeptics.” The American Journal of Comparative Law 56(4): 895–946.
Deng, Francis. 2008. Identity, Diversity, and Constitutionalism in Africa. Washington: US Institute
of Peace Press.
Duthu, Bruce. 2013. Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism. New
York: Oxford University Press.
Dyevre, Arthur. 2011. “The German Federal Constitutional Court and European Judicial Politics.”
West European Politics 34(2): 346–361.
Ehrlich, Eugen. 1962. Fundamental Principles of the Sociology of Law. New Brunswick and London:
Transaction Publishers.
Elias, T. Olawale. 1956. The Nature of African Customary Law. Manchester: Manchester University
Press.
Elster, Jon. 1995. “Forces and Mechanisms in the Constitution-Making Process.” Duke Law Journal
45(2): 364–396.
Englebert, Pierre. 2002. “Patterns and Theories of Traditional Resurgence in Tropical Africa.”
Mondes en D eveloppement 118(2): 51–64.
Englebert, Pierre. 2009. Africa: Unity, Sovereignty and Sorrow. Boulder: Lynne Rienner Publishers .
Evans-Pritchard, Edward Evan, and International African Institute. 1940. African Political Systems.
New York: Oxford University Press.
Eybers, George von Welfling. 1969. Select Constitutional Documents Illustrating South African His-
tory, 1795–1910. London: Routledge and Sons.
Faundez, Julio. 2011. “Legal Pluralism and International Development Agencies: State Building or
Legal Reform?” Hague Journal on the Rule of Law 3(1): 18–38.
Faundez, Julio. 2012. “Legal Pluralism and International Development Agencies: State Building or
Legal Reform.” In Legal Pluralism and Developemnt: Scholars and Practitioners in Dialogue,
edited by Tamanaha Brian, Sage Caroline, and Woolcock Michael, 177–196. Cambridge : Cam-
bridge University Press.
Fenrich, Jeanmarie, Paolo Galizzi, and Tracy E. Higgins. 2011. The Future of African Customary
Law. Cambridge: Cambridge University Press.
Fombad, Charles Manga. 2014. “Constitution-Building in Africa: The Never-Ending Story of the
Making, Unmaking and Remaking of Constitutions.” African and Asian Studies 13(4): 429–451.
Fremont, Jacques. 2009. “Legal Pluralism, Customary Law and Human Rights in Francophone Afri-
can Countries.” Victoria University of Wellington Law Review . 40: 149.
Galanter, Mark. 1981. “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law.”
The Journal of Legal Pluralism and Unofficial Law 13: 1–47.
Garth, Bryant G. 2003. “Law and Society as Law and Development.” Law & Society Review 37(2):
305–314.
Gates, Louis, and Appiah, Kwame Anthony. 2010. Encyclopedia of Africa. Oxford: Oxford Univer-
sity Press.
Ghai, Yash, 2010. “Chimera of Constitutionalism: State, Economy, and Society in Africa, .” In Law
and (In) Equalities: Contemporary Perspectives edited by , Swati Deva Eastern Book Company,
New Delhi, 230–343.
Green, M. Christian. 2013. “Religious and Legal Pluralism in Recent African Constitutional
Reform.” Journal of Law and Religion 28(2): 401–439.
Griffiths, John. 1986. “What Is Legal Pluralism?” The Journal of Legal Pluralism and Unofficial Law
18: 1–55.
Griffiths, John. 2006. “The Idea of Sociology of Law and its Relation to Law and Sociology.” In Law
and Sociology: Current Legal Issues, Volume 8, edited by Freedman Michael, 49–68. New York:
Oxford University Press.
Halperin, Jean-Louis. 2014. Five Legal Revolutions Since the 17th Century: An Analysis of a Global
Legal History. New York: Springer.
Harding, Christopher. 2000. “The Identity of European Law: Mapping Out the European Legal
Space.” European Law Journal 6(2): 128–147.
Harper, Erica. 2011. Customary Justice: From Program Design to Impact Evaluation . Rome: Inter-
national Development Law Organization.
Hart, H. L. A. 1994. The Concept of Law. Oxford: Oxford University Press.
Helium, Anne. 2000. “Human Rights and Gender Relations in Postcolonial Africa: Options and
Limits for the Subjects of Legal Pluralism.” Law & Social Inquiry 25(2): 635–655.
Herbst, Jeffrey. 2014. States and Power in Africa: Comparative Lessons in Authority and Control.
Princeton: Princeton University Press.
Hessebon, Gedion T. 2014. “Fourth Constitution-Making Wave of Africa: Constitutions 4.0?”
Temple International & Comparative Law Journal 28(2): 185–214.
Hoebel, E. Adamson. 1954. The Law of Primitive Man: A Study in Comparative Legal Dynamics.
Cambridge: Harvard University Press.
Hoekema, Andre J. 2005. “European Legal Encounters between Minority and Majority Cultures:
Cases of Interlegality.” The Journal of Legal Pluralism and Unofficial Law 37(51): 1–28.
Hooker, M. B. 1975. Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws. Oxford:
Clarendon Press.
Hussain, Nasser. 2003. The Jurisprudence of Emergency: Colonialism and the Rule of Law. Michi-
gan: University of Michigan Press.
H.W.O, Okoth-Ogendo. 1993. “Constitutions without Constitutionalism: Reflections on an African
Political Paradox.” In Constitutionalism and Democracy: Transitions in the Contemporary
World, edited by, Douglas Greenberg,, Stanley, Katz, Melanie, Oliviero, and Steven, Wheatley,
65–84. Oxford University Press, Oxford.
Isser, Deborah. 2011. Customary Justice and the Rule of Law in War-Torn Societies. Washington:
US Institute of Peace Press.
Jackson, Robert H. 1992. “Juridical Statehood in Sub-Saharan Africa.” Journal of International
Affairs 46(1): 1–16.
Janse, Ronald. 2013. “A Turn to Legal Pluralism in the Rule of Law Promotion.” Erasmus Law
Review 6: 181.
John, Jonathan. 2010. “The Concept, Causes and Consqunces of Failed States: A Critical Review of
the Literature with Specific Reference to Sub-Saharan Africa.” European Journal of Develop-
ment Research 22(1): 10–30.
Kasfir, Nelson. 1998. “The Conventional Notion of Civil Society: A Critique.” Commonwealth &
Comparative Politics 36(2): 1–20.
Keene, Edward. 2002. Beyond the Anarchical Society: Grotius, Colonialism and Order in World Pol-
itics. Cambridge: Cambridge University Press.
Kelsen, Hans. 1945. General Theory of Law and State. Cambridge: Harvard University Press.
Kelsen, Hans. 1996. Introduction to the Problems of Legal Theory: A Translation of the First Edition
of the Reine Rechtslehre or Pure Theory of Law. Oxford: Clarendon Press.
K€otter, Matthias. 2015. “Non-State Justice Institutions: A Matter of Fact and a Matter of Legisla-
tion.” In Non-state Justice Institutions and the Law edited by Matthias K€otter, Tilmann J. R€oder,
Gunnar Folke Schuppert, and R€ udiger Wolfrum, 155–187. Palgrave Macmillan UK.
Kyed, Helene. 2011. “Introduction to the Special Issue: Legal Pluralism and International Develop-
ment Interventions.” The Journal of Legal Pluralism and Unofficial Law 43(63): 1–23.
Kuenyehia, Akua. 2006. “Women, Marriage, and Intestate Succession in the Context of Legal Plu-
ralism in Africa.” UC Davis Law Review 40: 385.
Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. New York:
Clarendon Press.
Le vine, Victor. 1997. “The Fall and Rise of Constitutionalism in West Africa.” The Journal of Mod-
ern African Studies 35(2): 181–206.
Llewellyn, K.N. 1940. “The Normative, the Legal and the Law Jobs: The Problem of Juristic
Method.” The Yale Law Journal 49(8): 1355–1400.
Lubkemann, Stephen, Deborah Isser, and Peter Chapman. 2011. “Neither State Nor Custom – Just
Naked Power: The Consequences of Ideals-Oriented Rule of Law Policy-Making in Liberia.”
The Journal of Legal Pluralism and Unofficial Law 43(63): 73–109.
248 B. A. GEBEYE
Makgoro, Y. 1998. “Ubuntu and the Law in South Africa.” Potchefstroom Electronic Law Journal/
Potchefstroomse Elektroniese Regsblad 1(1, 1–11).
Malinowski, Bronislaw. 1926. Crime and Custom in Savage Society. Totowa, New Jersey: Rowman
& Littlefield.
Mamdani, Mahmood. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colo-
nialism. Princeton: Princeton University Press.
Mamdani, Mahmood. 2012. Define and Rule: Native as Political Identity. Cambridge: Harvard Uni-
versity Press.
Mancini, Susanna. 2010. “The Crucifix Rage: Supranational Constitutionalism Bumps Against the
Counter-Majoritarian Difficulty.” European Constitutional Law Review 6(1): 6–27.
Merry, Sally E. 1988. “Legal Pluralism.” Law & Society Review 22(5): 869–896.
Middleton, John. 2004. Tribes Without Rulers: Studies in African Segmentary Systems. London and
New York: Routledge.
Moore, Sally F. 1973. “Law and Social Change: The Semi-Autonomous Social Field as an Appropri-
ate Subject of Study.” Law & Society Review 7(4): 719–746.
Moore, Sally F. 1986. Social Facts and Fabrications: “Customary” Law on Kilimanjaro, 1880–1980.
Cambridge: Cambridge University Press.
Moore, Sally Falk. 1992. “Treating Law as Knowledge: Telling Colonial Officers What to Say to
Africans about Running ‘Their Own’ Native Courts.” Law & Society Review 26(1): 11–46.
Mujuzi, Jamil Ddamulira. 2015. “Legal Pluralism and the Convention on the Transfer of Sentenced
Persons in Practice: Highlighting the Jurisprudence of the European Court of Human Rights on
the Transfer of Sentenced Persons Within and to Europe.” The Journal of Legal Pluralism and
Unofficial Law 47(2): 324–346.
Mutua, Makau. 1995. “The Banjul Charter and the African Cultural Fingerprint: An Evaluation of
the Language of Duties.” Virginia Journal of International Law 35(2): 339–380.
Mutua, Makau. 2008. Kenya's Quest for Democracy: Taming Leviathan. Boulder: Lynne Rienner
Publishers.
Ndulo, Muna. 2001. “Constitution-Making in Africa: Assessing Both the Process and the Content.”
Public Administration & Development 21(2): 101–117.
Ndulo, Muna. 2011. “African Customary Law, Customs, and Women's Rights.” Indiana Journal of
Global Legal Studies 18(1): 87–120.
Nettelbeck, Amanda, Russell Smandych, Louis A. Knafla, and Robert Foster. 2016. Fragile Settle-
ments: Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada.
Vancouver: UBC Press.
Ntsebeza, Lungisile. 2006. Democracy Compromised: Chiefs and the Politics of the Land in South
Africa. Leiden: Brill.
Parsons, Talcott. 1947. Max Weber: The Theory of Social and Economic Organization.: The Free
Press .
Pearl, David, and Werner Menski. 1998. Muslim Family Law. London: Sweet & Maxwell.
Pimentel, David. 2011. “Legal Pluralism in Post-Colonial Africa: Linking Statutory and Customary
Adjudication in Mozambique.” Yale Human Rights & Development Law Journal 14: 59.
Prempeh, H. Kwasi. 2007. “Africa's "constitutional revival": False Start or New Down.” Interna-
tioanl Journal of Constitutional Law 5(3): 469–506.
Quane, Helen. 2013. “Legal Pluralism and International Human Rights Law: Inherently Incompati-
ble, Mutually Reinforcing or Something in Between?” Oxford Journal of Legal Studies 33(4):
675–702.
Rautenbach, Christa. 2010. “Deep Legal Pluralism in South Africa: Judicial Accommodation of
Non-state Law.” The Journal of Legal Pluralism and Unofficial Law 42(60): 143–177.
Raz, Joseph. 1971. “The Identity of Legal Systems.” California Law Review 59: 795.
Raz, Joseph. 1980. The Concept of a Legal System: An Introduction to the Theory of Legal System.
Oxford: Clarendon Press.
Raz, Joseph. 1986. The Morality of Freedom. Oxford: Clarendon Press.
Santos, Boaventura de Sousa. 2002. Toward a New Legal Common Sense: Law, Globalization, and
Emancipation. Cambridge: Cambridge University Press.
Sousa Santos, Boaventura de Sousa. 2006. “The Heterogeneous State and Legal Pluralism in
Mozambique.” Law & Society Review 40(1): 39–76.
Seidman, Ann, and Robert B. Seidman. 1984. “The Political Economy of Customary Law in the For-
mer British Territories of Africa.” Journal of African Law 28(1/2): 44–55.
Seidman, Robert. 1969. “Constitutions in Independent, Anglophonic, Sub-Saharan Africa: Form
and Legitimacy.” Wisconsin Law Review 1969(83): 83–127.
Sisson, Erin. 2015. “The Future of Sharia Law in AmeTamanaha, Brian Z. 2011a. “The Primacy of
Society and the Failures of Law and Development.” Cornell International Law Journal 44: 209.
rican Arbitration.” Vanderbilt Journal of Transnational Law 48: 891.
Snyder, Francis. 1981. “Colonialism and Legal Form: The Creation of ‘Customary Law’ in Senegal.”
The Journal of Legal Pluralism and Unofficial Law 13(19): 49–90.
Snyder, Francis. 1999. “Governing Economic Globalisation: Global Legal Pluralism and European
Law.” European Law Journal 5(4): 334–374.
Spruyt, Hendrik. 1996. The Sovereign State and Its Competitors: An Analysis of Systems Change.
Princeton: Princeton University Press.
Stern, Philip. 2013. “Bundles of Hyphens: Corporations as Legal Communities in the Earily Modern
British Empire.” In Legal Pluralism and Empires, 1500-1850, edited by Benton Lauren and Ross
Richard, 21–48. New York/London: New York University Press.
Sweet, Alec Stone. 2011. “The European Convention on Human Rights and National Constitutional
Reordering.” Cardozo Law Review 33: 1859.
Tamanaha, Brian Z. 1993. “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism.” Journal
of Law and Society 20(2): 192–217.
Tamanaha, Brian Z. 2008. “Understanding Legal Pluralism: Past to Present, Local to Global.” Syd-
ney Law Review 30: 375.
Tamanaha, Brian Z. 2011a. “The Primacy of Society and the Failures of Law and Development.”
Cornell International Law Journal 44: 209.
Tamanaha, Brian Z. 2011b. “The Rule of Law and Legal Pluralism in Development.” Hague Journal
on the Rule of Law 3(1): 1–17.
Tamanaha, Brian Z. 2015. “Introduction: A Bifurcated Theory of Law in Hybrid Societies.” In Non-
state Justice Institutions and the Law, edited by Matthias K€otter, Tilmann J. R€oder, Gunnar
Folke Schuppert, and R€ udiger Wolfrum, 1–21. Palgrave Macmillan UK.
Tamanha, Brian Z. 2000. “A Non-Essentialist Version of Legal Pluralism.” Journal of Law and Soci-
ety 27(2): 296–321.
Teubner, Gunther. 1991. “The Two Faces of Janus: Rethinking Legal Pluralism Closed Systems and
Open Justice: The Legal Sociology of Niklas Shumann.” Cardozo Law Review 13: 1443–1462.
Touval, Saadia. 1967. “The Organization of African Unity and African Borders.” International
Organization 21(1): 102–127.
Twining, William. 2009. “Normative and Legal Pluralism: A Global Perspective.” Duke Journal of
Comparative & International Law 20: 473.
William, Arsani. 2010. “An Unjust Doctrines of Civil Arbitration: Sharia Courts in Canada and
England.” Stanford Journal of International Relations XI(2): 40–47.
Woodman, Gordon. 1996. “Legal Pluralism and the Search for Justice.” Journal of African Law 40
(2): 152–167.
Woodman, Gordon. 2011. “Legal Pluralism in Africa: The Implications of State Recognition of Cus-
tomary Laws Illustrated from the Field of Land Law.” Acta Juridica 2011: 35–58.
Young, Crawford. 1994. The African Colonial State in Comparative Perspective. New Haven and
London: Yale University Press.
Young, Crawford. 2012. The Postcolonial State in Africa: Fifty Years of Independence, 1960-2010.
Madison, Wisconsin: The University of Wisconsin Press.
Zartman, William. ed. 1995. Collapsed States: The Disintegration and Restoration of Legitimate
Authority. London: Lynne Rienner Publishers.

Decoding Legal Pluralism in Africa

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Decoding Legal Pluralism in Africa

Uploaded by

Copyright:

Available Formats

The Journal of Legal Pluralism and Unofficial Law

ISSN: 0732-9113 (Print) 2305-9931 (Online) Journal homepage: http://www.tandfonline.com/loi/rjlp20

Decoding legal pluralism in Africa

To link to this article: https://doi.org/10.1080/07329113.2017.1351746

Published online: 01 Aug 2017.

Submit your article to this journal

Article views: 517

View Crossmark data

Citing articles: 1 View citing articles

Full Terms & Conditions of access and use can be found at

Decoding legal pluralism in Africa

ABSTRACT ARTICLE HISTORY

CONTACT Berihun A. Gebeye gebeye_berihun@phd.ceu.edu

Why decoding legal pluralism in Africa is important?

Legal pluralism: an introduction

originally related to the discovery of “indigenous forms of law” in non-Western societies

Legal pluralism in Western democracies

Before the development of the nation-state

In the age of contemporary democracies

Legal pluralism in Africa

Law and legal system in pre-colonial Africa

Law and legal system in colonial Africa

Law and legal system in post-colonial Africa

Restating legal pluralism for rule of law and development policy

You might also like