African Customary Law - Lecture Notes PDF

AFRICAN CUSTOMARY LAW PVL3003S University of Cape Town Lecture Notes By Jamie-Lou Ross 2024 OVERVIEW OF VALUES AND FEATURES WHAT IS AFRICAN CUSTOMARY LAW? The terms indigenous law, ACL & customary law refer to the same thing & are used interchangeab...

AFRICAN CUSTOMARY LAW PVL3003S University of Cape Town Lecture Notes By Jamie-Lou Ross 2024 OVERVIEW OF VALUES AND FEATURES WHAT IS AFRICAN CUSTOMARY LAW? The terms indigenous law, ACL & customary law refer to the same thing & are used interchangeably in this course. Const doesn’t define ACL - definition comes from statute: Customs and practices of the indigenous people of SA & which form part of the culture of people. Issues in future will concern notion of “indigenous” & “culture”. You may ask who is “indigenous” to SA? E.g. a few yrs ago, afrikaners claimed they were indigenous as they had been here since 1652 & wanted recognition from the UN because indigenous people are entitled to certain rights. At this stage, UN wouldn’t recognise colonialists as indigenous. Another perspective comes from the Khoi San who may say we determine who is “indigenous” too late ? They were here first? Thus, notion of ‘indigenous’ becomes an issue as it is increasingly hard to draw lines. Last year HC case involved African man married to coloured woman: - One of the claims was that a coloured woman can’t use ACL. - Court brushed this to the side & said they must look at the system of law not the people. If you can show a reason why you are using CL, court seems keen to use it. 2nd part of the definition asks “Does it form part of culture?” This part of definition hasn’t come under much scrutiny yet. If something is CL it has force of law - can be applied in courts. Most literature & case law suggests indigenous people are represented by the 9 indigenous languages of SA & each has its own system – so we can see there is not just 1 system of CL in SA. We are learning the general principles - underlying values & features. When you litigate you talk to specific community as nobody knows CL better than the community. CL is represented by culture & practices of indigenous people of SA & it isn’t religious law. Thus, CL is broad but doesn’t include everything. Religious marriages aren’t recognised in SA under ACL. An issue has been islamic marriages but courts have been clear that it isn’t CL. Recognition act applies only to indigenous people. E.g. Mandla Mandela married wife in accordance with CL (1 party under CL and one not) – HC has said yes, we look at the system of law and if it is an indigenous system, we give recognition to it. WHERE DOES CUSTOMARY LAW APPLY? Urban areas? Rural areas? Misconception is that it applies only in rural. CL is a personal system of law – it is personal and follows the person wherever they are. If you marry in a village under CL, you are married in SA. If you get married in a rural area & comply with customs, you are regarded as married & can claim from estate etc E.g. MTN case & Zuma’s daughter’s case. Colonialism & apartheid didn’t recognise ACL, but in new Constitutional era there is a personal system of law and ACL follows people no matter where they are in SA & regulates their life. RELEVANCE? Can courts apply ACL? What matters are governed by CL?  S 211(3) Const: courts must apply CL, when applicable subject to legislation dealing therewith & the Constitution. Not “can” or “may” but “MUST”. Courts MUST. This is a constitutional obligation. This is a significant step. Const doesn’t say when it applies. You just apply when applicable. Const creates clear hierarchy. You must apply CL subject to legislation that deals with it & subject to the Const. So check CL against leg & const. E.g. a patriarchal practice tested against Const may not be applied. This was major point in negotiation of Const - traditional leaders wanted to ring fence ACL. ANC women's movement opposed ring fencing ACL – wanted it subject to Const. ANC youth league didn’t want any recognition of ACL. We have recently seen several problematic pieces of legislation that started replacing CL with comm law. KEY FEATURES (1) Dynamic system of law It changes - misconceptions that it is outdated etc. It changed in response to colonialism etc and it can change again. (2) Not fixed rules but a set of values MN case: - 1 issue was whether consent of 1st wife is required for subsequent customary marriage. - Does man need 1st women’s consent? No customary law rule fixed here. - Rules are responses to circumstances. Sometimes consent required & others not See this in actual cases & contestation seen due to there being no fixed rules. Rather, there is a set of underlying values – communitarian aspects, Ubuntu & family kinship etc. (3) Ubuntu An underlying value. Person through other people/community centred/we know it when we see it. Been Qs if it should play role in contract law. Ubuntu was recognised in Interim Const as a value but not in final Const – but recognised by courts as a value. What it means is still not defined. (4) Unwritten oral system of law CL tends to be an unwritten system of law. People know it because they practise it. E.g. people know if you are married because you live it - see cattle passed & celebration etc. Generally not codified but doesn’t mean it can’t be. Distinguish official CL & living CL: - Official: written down. - Living: what people actually do. Role of precedent? There are 2 approaches: 1. Cases binding unless court overturns; or 2. Define CL each time – precedent may be a source of law, but equally possible somebody brings something different and you weigh it accordingly. The 2 above approaches usually come to the same position.  A caveat: a Constitutional matter probably is binding. E.g. MN case was on consent: - CC says they are developing law to say consent is required from first wife. - Would say this is binding as it was C’al reasoning and about protecting Rs such as dignity etc. - Will deal with this case in marriage section. Above diagram shows the general conception of CL But originally CL looked like the diagram below. DISPUTE RESOLUTION MECHANISMS Started with family, but as dispute went further, could get community/chiefs involved. Chiefs communicated with ancestors but weren’t necessarily involved in every day life - that happened at family level. But today is different. Chiefs didn’t have concentration of power - power was dispersed and lay predominantly with fam. TAKE AWAY 1. Customary law is meant to be applied by courts with equal force as common law. - You must feel the same way about asserting CL as comm law. - If community own land under CL, they own it under SA law. - Fishing Rs under CL are have Rs under SA law. - Marriage under CL is marriage under SA law. - CL can push back: conflict of CL & comm law? Don't just default to comm as they are equally valid. 2. It is a system of values rather than fixed rules and there is flexibility and variation in the application. 3. Power was often diffused and the family is an important social institution. - Chiefs don’t have concentrated power - not supposed to be seen as ruling kings - family has power. PRE-COLONIAL HISTORY OF AFRICAN CUSTOMARY LAW INTRODUCTION: SOME DISCLAIMERS Denialism of African law - Not a lot of research on law in Africa prior to colonialism - Most research starts after colonialism and is based on Africa’s interactions with colonialists and other empires. - Part of this is to do with discrimination against African people and their way of life etc.  - Idea of “dark continent” – pushing back against that assumption. - Authors argue there is an African law and complex systems have existed in terms of political & government systems. - Definition of ACL prior to colonialism is NB to note. - Early scholars were missionaries and after that archeologists and historians etc. - Many were westerners, so literature from that time filtered through that lens. - Be critical about: who was writing about CL; what are there biases; where are they getting info from; and what are the interests of people giving them this info. African law filtered through early, western social anthropologists and historians Be suspicious of broad generalisations, but understand that similarities do exist. It is very difficult due to vastness of continent to make broad generalisations about laws & customs etc. But there are some similarities across the continent that scholars have been able to glean from interdisciplinary methods such as philosophy, anthropology etc. Questions to think about: What is "customary" or “indigenous” any way? What can we replace it with? Precolonial societies didn’t think of law as customary or indigenous - they thought of themselves as who they were. Interesting to think of the word itself – what do the words connote? What are the implications of using that terminology. Questioning what is “African”. Vernacular? "Traditional"? Invention of Africa as a concept. People didn't think of themselves as “African” prior to colonialism. Different or similar at all to Roman Dutch law? Or other types of law? What are the implications for other forms of law? As you will see, contact between Africans and colonial regimes resulted in different forms of law. In what ways can we see both African and European law being transformed by each other? DIFFERENT SCHOLARS THAT HAVE THOUGHT OF QUESTION OF ACL PRIOR TO COLONIALISM T.O Elias early work on the Nature of Customary Law African scholar. He has early work on nature of CL. Work emphasises similarities between African laws across continent – see similarities despite differences. Notes differences between European law & African legal systems - says there is overlap between moral & legal rules – NB as African law gets its authority through connection to moral and ethical beliefs. Many follow it because of threat of sanction, but he argues its also the belief in this moral code that provides the law with its legitimacy in these pre colonial societies. Individuals NB as main subjects of law in European legal systems. But ACL? Subjects of law: groups and individuals (kings, chiefs, women, infants, slaves, aliens, castes). These are key actors within micro societies but as societies became larger, it became less about group as whole and rather about individuals and their rights.  He says ACL includes individuals and groups as subjects – as groups grew in size and diversity, individuals became more NB – when groups were smaller the group was a more unitary subject. There was distinction between civil and criminal law. He argues imprisonment was not as ubiquitously used as in European law, but instead there was an approach that balanced punishment of the offender and a corresponding satisfaction - e.g. blood money paid to surviving relatives of victim – caveat: this was not practised across continent. Often seen as just in criminal law to settle ruptured relationships between communities etc rather than simply imprisoning someone. In some cases this was preferred to banishing (societies moved around alot so difficult to survive alone as people were very interdependent and needed to be part of group to thrive). There was also legislation: by royal decree, through council and even by case law. Objective of law was mainly peace and order in society and this was the main thrust of the core of the nature of CL prior to colonialism. Max Gluckman's theory on Natural Justice in Africa G uses anthropological approach to observe African court disputes. He uses word ‘tribe’ – but word has negative connotations – rather use term ‘ethnic group’. He does analysis of court disputes and through this analysis he sees that there was a system of laws that existed in African societies that bound kings and subjects alike. What media might suggest of old African societies is a portrayal of king as tyrannical figure or someone who ruled by decree, but this wasn’t the case as there was law that bound and ruled kings and subjects. Checks and balances included rebellion in the case of abuse of power and non compliance with the established rule of law. People would overthrow leader if felt they were ruling unfairly G emphasises similarities ACL has with European jurisprudence and RDL principles – unlike Elias. He says men lived up to the law in Africa as they did elsewhere, and just as much. Main thrust of G’s argument is that there was not much difference when we get to core concepts & objectives of law in Africa prior to colonialism and even arguably post colonialism. In this society, kinship is central to organising society. This is a repeated point made by all scholars. Communities themselves were relatively small, thus creating interdependence. Any breach of rules provoked disturbance in entire group. This links back to what Elias talks about regarding groups being subject of law. One transgression against an individual can be a transgression against community and an obligation to one person was an obligation to community/group. The role of courts: repairing social relations - Repairing/settling ruptures in social relations instead of simply deciding who is right or wrong. - There was a clearly defined rule of law and a set of certain values which were guiding decisions of the judges. - Even though decisions would result in a wide range of awards and sanctions, they were rooted in a definite set of values. Heart of the moral code was reconciliation – the heart of natural justice. African theology and spirituality influenced this moral code, like christian theology has influenced European and American systems.  NB: It was not a utopia! Didn’t result in just outcomes for all, especially those who found themselves at bottom of society. People who were vulnerable, such as woman or slaves, were mistreated and there was abuse of poor/powerless – non-idealised view of precolonial society. Judgments by courts didn’t always result in fair judgments but this is the case in any legal system. So NB to understand those similarities G is trying to point to between African & European legal systems. M'Baye's Concept of African Law M’Baye kind of continues Elias’ work and relies on it alot. Beginning of her piece is part of early work on African law and she explains how it works and operates and she explains connections between African philosophy and African law. M was one of first scholars to argue for an African legal theory and that it does exist. Says African law is to live under protection of community of men and spirits. Old CL ‘developed in response to demands of traditional societies which set themselves up everywhere from desert to forrest and anarchy and chiefdoms, both sides of equator and moulded law to needs of respective civilisations they supported’. This is setting out exactly what CL is and from perspective of looking at the object of ACL. M says it was orientated towards preservation of the group – main objective prior to colonialism. Kinship is the central organising institution from which flows legislative, judicial and administrative powers all the way down to individual and private family units and issues they deal with at micro levels. The source of law: gods, genii and ancestors. Makes connection between legal & moral and African cosmology – beliefs about ancestors and afterlife and connection it has with current times and how those are customs too. Law as legal and moral. Individual placed within a wider social group. Obligations (private and public): obligations connected to group and often invoke communal responsibility even for private legal interactions – but usually applied to micro societies, families, lineages tribes & clans – were often in closed units and with limited contact with other groups. Proof of obligation in form of acts performed as opposed to written proof. As emphasised by Elias - source or legitimacy of law is that it comes from the people. Citizens both legislators & subjects of the law. Justice defined as what is in accordance with the will of god and ancestors. Ownership rights were flexible and obligations are connected to the group. Because of the roaming nature of many these groups, ownership rights were flexible as some objects of land belonged to everyone and many societies believed communal objects belonged only to god & ancestors and were to be used and enjoyed by those to come. Again we see a connection between ‘generations before us’, ‘current generation’ and ‘future generation’ – see how this cycle of life, wrapped up in almost spiritual beliefs and wrapped in law. Morality and law wrapped up in 1 which arguably is not unlike western systems of law. Though writing existed in some civilisation on continent, for the most part law was handed down through memories of elders, songs, idioms, spoken word etc. ACL was ssentially oral.  Not the case across the continent, but this was the primary method of transmission of African law from generation to generation. And even then it was adaptable and this is what has allowed it to be, arguably, so easily influenced by colonialism. Other opinions exist that say ACL has endured quite a lot given how dramatic the effect could have been. It was able to adjust so much after colonialism, contact with Christianity, Islam & globalisation etc, and all this was made possible because ACL is adaptable and even in these societies they were contacting with merchants and other travelling communities and all of this impacted African law. Anthony Allott Allot gives succinct breakdown of what ACL was prior to colonialism & notes key components including: Pre-eminence of arbitration and conciliation Also emphasised by M’Baye and Gluckman. Integration of law and society Weaving in of religion, spirituality and culture into law are all features of African law prior to colonialism. Still see this today. Relative conservatism i.e. not quick to change Relative conservatism but still adaptable and has exceptions Can see he qualifies it as relative as it was quite adaptable. There were enduring values and it was able to last through generations and even when we look at practices about family & marriage etc, you can think about how many years they have been continued through families and communities. Kinship basis All scholars mention kinship ties as central organising feature of African societies. Status differentiation Difference in peoples Rs and obligations depending on what their status in society was e.g. king, woman, elder, child, slave, peasant. These statuses would all determine their Rs and obligations in legal sense. HISTORICAL TREATMENT OF CUSTOMARY LAW DURING COLONIAL AND APARTHEID ERA OBJECTIVES Understand the historical treatment of customary law in South Africa. Understand how the history has impacted on customary law today. Compare & contrast the historical treatment of customary law with the current treatment of customary law. WHY DO WE LOOK AT THE HISTORY? Cannot understand the status of CL today without appreciating the history of recognition of CL during colonial and apartheid era. The colonialist and apartheid period shaped ACL today. See the laws in political context. Laws furthered a political agenda. WHIRLWIND HISTORY TOUR 1652: DEIC arrive at the Cape: - At this point no evidence that they take into account any of the customs of indigenous people.  - They apply RDL and simply ignore any other system of law. 1814: British colonisation: - Britain’s policy was to implement the local laws of the colony provided it is suitably civilised. - So they find RDL in operation and apply it. - They adopted a policy of non-interference with the customs of indigenous people provided the principles were not repugnant to the principles of public policy and natural justice. - This policy is called the repugnancy proviso/clause. - Repugnancy clause comes up time and time again and is still in our law today – roots of it started here. Who decided what was public policy and natural justice? Colonial government decided – colonists had problem with polygamy, for example. ACL seen as something inferior & subordinate. See against background of colonialism – colonisers trying to get land so want to ignore anything that gets in their way. As history progresses we see the policy of non-recognition come into force. Khoisan engaged in wars and were driven out of their land which resulted in the disintegration of their political and social institutions. So they became easier to ignore. Where do the Khoisan fit into this? - Collective term to refer to Khoi & Aan – 2 groups generally grouped together. - Generally regarded as 1st people of SA – 1st indigenous people. - SA state labelled people according to colour of skin – labelled as coloured along with Malay slaves, people of mixed race, even change in religion could change colour – a catch all group for the State. - State kept coloured individuals in coloured areas but ‘coloured’ was a mixed group – State never recognised there were traditional leadership institutions. - Never recognised Khoisan practised CL or had claims to land etc. - Khoi kept within white SA but were dispersed. - Classified dark Khoisan as black – lifted out of SA & relocated to homelands. - Used CL to control population. - Khoisan & black groups treated very different. - Chiefs etc tended to be associated with black indigenous groups. - Had legislation that recognised Khoisan leadership under guise that it was necessary to protect the group – but treats them differently and denies they have any land claims. The 4 colonies developed different policies of recognition towards ACL. The 4 colonies had discretion how they treated CL – we will look at Cape & Natal as illustrations. There was direct rule in the Cape and indirect rule in Natal. Cape Official policy of non-recognition of ACL. Only applied RDL and not ACL. Took away all powers from chiefs. Magistrates were given the sole responsibility for administering justice. (NB Concept – will ask Q on.) Cape had an assimilation policy or direct rule as indigenous people were brought into the common law system. Direct rule meant no different laws for different people. Cape ruled its people directly through state law. Contrast to indirect rule (This will be tested in true & false).  But applying this official policy of non-recognition was difficult. How do you tell people what to do when you are in the minority? Doesn’t work in reality. Becomes too difficult to apply official policy of non-recognition as there is lack of personnel and resources. Became a pragmatic concern as people married according to the same laws, dissolved estates etc and state had little control over that. Consequently, we see a softening of the approach of direct rule. State says colonial courts can apply CL but keeps repugnancy proviso. Highlighted in Transkei territory where you had a large indigenous population not completely controlled by colonial rule & which was at a distance from the colonialist state. Lack of personnel and resources made it hard to enforce the policy of direct rule. Simply could not control the fact that people continued to live and apply their own laws. White colonial state judges were overseeing CL in courts but they don't understand the features & values. They change & apply law when they apply it as they find it foreign etc. They introduce their own principles – the way Eng law is introduced into our law. CL not written down so judge had to ask somebody what law was and whoever told it shaped the law. So they allowed colonial courts to apply ACL subject to it being compatible with the general principles of humanity observed throughout the civilised world. Implication is that colonialists will decide suitability of the law based on their own values. ACL is undermined & subordinate to colonialist values. ACL may be ‘uncivilised’. Typically customary marriages and lobolo were considered uncivilised & denied effect Colonialists were not qualified to apply the law. They did not know the law, so had to be told it and people could manipulate what they told them to suit their own needs. Judges imposed their own interpretations on the law and thus changed the law. The state then implemented legislation on CL. CL was going to be checked against principles of civilisation that colonialists will determine – “Civilisation mission”. Lobolo was being translated as ‘bride price’ – commodification of CL. This period starts to change the law. How does it change the law today? Who is applying the law today. Natal Started with direct rule but quickly became obvious it wouldn’t work. Colonial state were a minority trying to impose their will on the majority. Initially Natal also had a policy of assimilation & non- recognition of ACL. But there was a large population and colonialists lacked the personnel to impose RDL on the population. Theophilus Shepstone is credited with radical idea of using traditional leaders to control the population. Shepstone says they need to increase personnel and must do this by including traditional leaders in the state and they will control population on their behalf – not being recognised because they think there is value but to control population. Incorporated traditional leaders into the colonial administration and used them to control the population. Suddenly, colonialists had more personnel. Chiefs could hear cases and apply ACL but always subject to appeal to white magistrates – oversight. The appeal to white magistrates shaped decisions of Traditional leaders as they wouldn’t give a decision that they thought a white magistrate would simply overturn.  They start changing law as don’t want matter to go on appeal. Not many cases went on appeal to magistrates. It created the perception of autonomy and independence which was easier to implement and reduced the risk of revolt and gave legitimacy to the law. Authority changes as law cloaked as being customary so more people are likely to follow it. They break up majority into small minority tribes – creates tribes and arranges people generally according to language – state never has to deal with population as a whole and breaks up groups strategically and often arbitrarily. Today almost every traditional leader position is disputed. Indirect rule: Traditional leaders, who were controlled by the colonialists, were used to control indigenous people through the application of CL. Implemented in 3 parts: 1. Recognition of traditional leaders as administrators ❖ Not colonialists that rule people. ❖ E.g. traditional leaders enforced pass laws and thus became face of apartheid. 2. Establishment of separate courts 3. Establishment of taxes and ‘native coffers’ to fund native administration Indirect rule: indigenous population controlled through traditional leader & CL. State enforces rules indirectly. Policy of recognising CL also reflected the racist ideology of the time that English law was too progressive to apply to indigenous people. ACL was recognised but it was for control. So they were not recognising CL as an independent and worthy system of law, but rather recognising it for the purposes of controlling the population. State wants access to land and resources and labour supply and so want to bring black population in and out when it suits them and thus manipulate law to get access to land & labour. CL at this point never recognised for purpose of being a valid legal system. ACL always checked against general principles of humanity, so we see it had a subordinate status during this time. This system is being perpetuated today and people living in areas where chiefdoms are etc are forced to be under that jurisdiction and do not get to choose. There are 11 kingdoms in SA & 1 Queendom. Strength lies in Kingship – King in SA very powerful – but as powerful as Kingship was, it was always subordinate to the state. King could control population on behalf of the state. Codification of customary law Also during this time, colonialists reduced customary to written code. Thought it would make it easier & more certain and have more predictability. Claimed it would provide greater uniformity & certainty. But problematic as code was treated as an authoritative text that you could simply apply and was now unnecessary to get input from chiefs & headmen. People lost input into their own law and were told the law by white magistrates who now controlled it Ossified the law: white colonialists telling you what CL was – indig people started losing any input into what their own version was of the law. Values, terminology and features started to be lost and this was caused by codification. Code was written in English so obvious problems with translating into English and accurately capturing indigenous principles in English language. Many practices under ACL were e.g. patriarchal, discriminatory etc – but almost every system was in the past?  Other law developed, but CL didn’t develop as colonialists said the codified law is the law. Suited them to apply a law that was discriminatory to prop up certain people and discriminate others. Critiques of CL are valid but you must also understand the role that the state played. Note there are some CL systems better than democratic systems we work with. Translation problem takes us to 1910. 1910 Union of SA There is a need for a uniform policy towards customary law. Want one single policy. State facing threat to its rule as population mobilising etc. This is when tribalisation starts to happen. State facing threat from growing African population who were forming political associations & threatening white rule. Q was how was a minority white population going to control the majority black population? Answer was to fragment population into tribes so that they never dealt with a dominant population but rather small tribes. So aimed to re-tribalise the population because a segregated & separated population was easier to control. Motivation for this was control & maintaining white rule. Why was control so NB? About land and resources at this time. Passed a series of legislation aimed at separating the population. Natives Land Act: - Precluded black people from buying land except within certain areas. - (Initially this was limited to 7% of the country’s territory and later this was increased to 13%). - Majority population limited to 13% of land – created land issue - now people restricted. - State said women don’t own land in CL so if husband dies, land must be redistributed. - State starts making up CL – saying CL doesn’t allow you to own land was manipulation of law. Black Administration Act: - Gave the colonialists far reaching powers which they used to control the population. - Governor General became the supreme chief and had the power to appoint and depose of chiefs, prescribe powers at whim, change tribal boundaries (shuffle, amalgamate, constitute new tribes) at will. - Made up law! Created the rule that a woman in customary union was deemed to be a minor & her husband her guardian. - Also for a tribe to be bound by a contract, it had to be adopted by the majority of adult male members of the tribe. - The rule of women being minors comes from this BAA rule. - These rules marginalise women & children. Bear this in mind ACL often gets criticised for this but rules were created by colonialists and ossified in legislation. - Created separate specialised lower courts (commissioner & chief courts) that could apply ACL but always subject to white administrative control / appeal. - ACL only applied to black individuals with the proviso that it should not go against public policy or natural justice but you could not declare lobolo / bogadi repugnant to such principles. - It was a racialised system. Not a system you want to go back to – in Const era we removed this but Q = has it gone far enough? Does it only apply to certain areas of population? - Magistrate courts and Supreme courts had jurisdiction over both race groups but didn’t treat ACL as a matter of law. It was treated as a fact that had to be proven like foreign law or common law custom. - Apartheid is a continuation of the system of indirect rule & gives rise to fully-fledged indirect rule by formally legislating for the segregation & separation of colonised majority into tribalised minorities.  Black Authorities Act 68 of 1951: - Confers wide discretionary powers on state to manipulate the establishment of tribes and ACL. - Could confer wide powers on Traditional leaders who in turn assisted with administering tribes, collection of taxes and removals from land. - Why would Traditional leaders do this? No real recognition of ACL, chiefs were given power but were always subject to the control of the state. Policies aimed at controlling resources and maximising revenue. S1 Law of Evidence Amendment Act 1988 – CF later section on ascertainment of customary law. At the end of this section you must be able to: Define & explain direct rule and indirect rule. How was indirect rule implemented? Explain why indirect rule was favoured and given effect to. Explain with examples how colonialism and apartheid distorted customary law. Discuss the effect the colonial and apartheid treatment of ACL has had on ACL as a system of law. (Previous exam question). This foreshadows upcoming work, keep in mind as you go through content. Compare and contrast the treatment of customary law during the colonial and apartheid era with the treatment of customary law under the Constitutional era. (Previous exam Q). Classify the policies towards ACL in the various time periods in terms of the legal theories. Exam technique: 10 marks = write for 20 minutes & try have 12 points. CONSTITUTIONAL RECOGNITION OF CUSTOMARY LAW CUSTOMARY LAW IN THE CONSTITUTIONAL ERA Approaches to the recognition of ACL? - Non-recognition - Recognise but subject to Const - Recognise & exempt from Const People recognise CL according to one of these approaches. Most countries recognise CL in some way or another. Some certain African countries exempted CL from Const scrutiny for non-discrimination – idea was that if you check it all the time it would lead to striking all CL down – but risk is that it perpetuates discriminatory practices. Spain recognises custom in terms of water courts – how farmers use water – so can recognise specific areas of CL. We have one of most progressive Consts in terms of CL. Canada Const problematic – limited recognition – but seen some progression. What approach do you think we should have adopted? And why? Think about what kind of issues each approach raises. RECOGNITION OF ACL IN THE CONSTITUTION Interim Constitution Politics and negotiated settlement Constitutional principles [which the Final Constitution had to conform to and which were part of the Interim Constitution] provided that the Final Constitution had to recognise indigenous law like common law and guarantee the application of customary law in courts, subject to the Constitution and legislation dealing specifically therewith.  ANC Youth League & Women’s Movement didn’t want inclusion of CL in Const. Const changed the way the courts determined public policy. Values of equality, prohibition on discrimination & protection of culture prompted the court to say that you had to take into account the values of all right-thinking people in society and not only a segment of the population (Ryland v Edros). Important change: CL no longer evaluated against Eurocentric interpretation of public policy. Courts made clear that public policy now informed by views of whole of SA. Epilogue contained a reference to ubuntu. (That the pursuit of national unity and well-being of SA could be achieved through amongst others UBUNTU.) Ubuntu dropped in Final Const but affirmed as a Const value. Can you move articulation of Ubuntu into the legal sphere? E.g. companies negotiating? How does Ubuntu look? Was not defined in the IC and in fact epilogue and reference to ubuntu removed in final Const. But CC in Makwanyane affirmed it as a constitutional value. Ubuntu comes from traditional African jurisprudence and translated to mean ‘a human being is a human being because of other human beings’. Authors often refer to is as being a sense of fairness, justice, respect for human dignity, humaneness, social justice, etc. No precise definition but permeates a considerable area of SA legal order so it is important concept. So in Makwanyane court used it to define human dignity and was used to abolish the death penalty. CC has referred to ubuntu as being important in developing the rules of contract and defamation. Final Constitution Small changes happened. Reference to indigenous law was replaced with customary law. Culture & customary law protected in various provisions in the Constitution. Identify relevant constitutional provisions from the legislation and how they deal with CL. Highlight some NB Provisions: - S 30 R to participate in culture of choice but may not exercise Rs in manner inconsistent with provisions in BOR. - S 31 group R to participate in cultural activities may not be exercised in manner inconsistent with provisions in BOR. These (above) are individual & group Rs to culture. Worry that R to culture would lead to claim to separate statehood – e.g. Afrikaners tried. Thats why included internal limitation i.e. would always be subject to BORs. Side note: You must cite case law in answers. Cite cases. Need authority in terms of statute – just need statute names not specific provisions. Never given legislation. E.g. cite RCMA etc. Don’t worry about section numbers. Bhe case : - CC said CL has place in our legal system - Constitution envisages a place for CL in our legal system. CL should be accommodated, not merely tolerated, as part of SA law, provided it is not in conflict with the Constitution. Note Bhe is one of earliest cases on CL. Three provisions below show how CL recognised. 1. s 39(2) specifically requires court interpreting CL to promote the spirit, purport and objects of the Bill of Rights. 2. s 39(3) states that the BORs does not deny the existence of any other Rs or freedoms that are recognised or conferred by CL as long as they are consistent with BORs. 3. s 211 protects those institutions that are unique to CL. It is protected by and subject to the Constitution in its own right. Alexkor :  - This case is authority for idea we have distinct legal system – forms part of legal system but shouldn’t be seen through lens of Common law. - ‘Previously indig law was seen through comm law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. - Its validity must now be determined by reference not to common law, but to the Constitution. - The courts are obliged by s 211(3) Constitution to apply CL when it is applicable, subject to the Constitution and any legislation that deals with CL. - In doing so the courts must have regard to the spirit, purport and objects of the Bill of Rights. - Our Const acknowledges originality and distinctiveness of indig law as an independent source of norms within legal system. - At the same time Constitution, while giving force to indigenous law, makes it clear that such law is subject to the Constitution and has to be interpreted in the light of its values. - Furthermore, like the common law, indigenous law is subject to any legislation, consistent with the Constitution, that specifically deals with it. - In the result, indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of SA law.’ Shilubana : confirms CL as an important & independent system of law but that like any other law it must accord with Constitution. CC been clear CL must be recognised. But compare what is said to what is being done. RECOGNITION OF CUSTOMARY LAW SUBJECT TO THE CONSTITUTION See the CC rhetoric in respect of ACL. How they refer to it as being an independent system of law with the same status as common law. How does this compare to actual treatment of ACL in judgments? You must bear this in mind for later. 2 forms of ACL 1. Official (OCL): Statutes & judgments, textbooks, articles etc. 2. Living (LCL): Actual practices of people. Which form of ACL is recognised by the SA Constitution? Certification judgment: : ensure the survival of an evolving customary law. - This was 1st CC judgment & recognises CL is evolving. - ‘The CA cannot be constitutionally faulted for leaving the complicated, varied and ever-developing specifics of how such leadership should function in the wider democratic society, and how customary law should develop and be interpreted, to future social evolution, legislative deliberation and judicial interpretation.’ Alexkor [52-53]: - ‘Indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its nature it evolves as the people who live by it change their norms and patterns. Unlike common law, it is not written. It is a system of law that is known to the community and passed on from generation to generation. It has its own values and norms & has historically evolved to meet the changing needs of the community & will continue to evolve within the context of its values and norms within the Constitution.’ So recognition in Const is of LCL. Const recognises law that doesn’t come from state but from communities. CC said that is the system recognised by Const and that we have to apply.  What form of law does this sound like? LCL. So what does that mean for statute? Does it mean customary law statutes not recognised? Const creates hierarchy. LCL subject to legislation but also on top of CL. Const creates hierarchy. What does it mean for case law? Depends on how you will apply for precedent purposes – but will come back to this later. Side note: Cite cases when building an argument & know content of s 211(3). S 211(3) The courts must apply CL when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. (Will be T/F Q on if this section is permissive) - Must apply: Constitutional obligation to apply CL. We don’t just recognise ACL but courts are obliged to apply it. - When is ACL applicable? Constitution doesn’t answer. See discussion later on conflict of laws in tutorial. - Subject to the Constitution: Hierarchy created by Const. If LCL conflicts with legislation, you apply legislation. Doesn’t matter if LCL is better. - And any legislation that specifically deals with customary law. Class exercise 1. Under LCL, a boy who has undergone initiation is eligible to marry. Under the RCMA only majors (over 18) can marry without consent. A is a 17 year old and has undergone initiation. A marries without the consent of his guardian. Is the marriage valid? Why? No. It conflicts with legislation & Const says you must apply legislation and not LCL. Must say in answer you know LCL is recognised but it is subject to legislation. Cite Const & RCMA. 2. The Reform of Customary Law of Succession a Act regulates the devolution of customary intestate estates. Assume that LCL has evolved to better protect rights of women than the Reform Act. Which system of law would the courts apply? Why? Legislation would apply as Const subjects LCL to the legislation. 3. Under LCL, families can negotiate a divorce. Under the RCMA only a court can grant a divorce for a customary marriage. A couple marry under LCL, for which you do not need to go to court, and then negotiate a divorce. The couple have no idea about the RCMA. They divorce according to customary law. Are they divorced? Apply the Act. This will be Q in test/exam. Cite authority i.e. Const forces you to apply legislation. What does it mean to be subject to the Constitution? Customary law must be brought into line with the Constitution. Direct application: Strike down ACL. Indirect application: Develop ACL to bring into line with the Constitution. Example of this? Lehnert offers an explanation of what it means to develop customary law. HOW YOU CAN DEVELOP ACL: ACTIVE V PASSIVE APPROACH This comes from Lehnert’s reading. ACTIVE DEVELOPMENT OF THE LAW Here you create a new rule: either by re-formulating existing customary law rule or formulating altogether new rule. This should not be done in the abstract but in response to a case. But Lehnert cautions that you bear in mind underlying values/norms of CL so you don’t cause a complete conceptual change of CL. However, this may not reflect LCL which is what is protected by the Constitution.  The creation of new rules not fully observed by the community may be more like OCL. PASSIVE DEVELOPMENT OF THE LAW Look at current practices of people. Recognise current customary law observed by people as rules binding for courts. It’s a development in as far as the court applies the rule now. The court however doesn’t do anything or change the law but simply recognises the current practices of people. Can only recognise the rule to the extent that it conforms to the BORs. Cannot recognise rule contrary to BORs. This gives effect to LCL NOTES Lehnert says that in reality development may be combination of both. Recognise evolving ACL rule that is not fully established but that gives effect to the BOR. So maybe the practice is only observed by a minority of people and does not constitute customary law yet. Perhaps the court can support and promote the development of law in a particular direction. But it assumes that the court decision affects the practices of people and LCL. Direct v indirect application & distinguish active v passive development – find in Lehnert reading. Must be able to discuss: What are the advantages of developing CL rather than simply striking it down when it conflicts with the Constitution? What are the difficulties in courts developing customary law? Any suggestions for improvement? What kind of development of ACL do we see in the courts? Bhe: official rule of male primogeniture (males inherit to exclusion of females) comes before the court. - Majority in response to the question of whether it should develop customary law held that it would first have to determine the true content of CL today to give effect to it. - Court held that it did not have enough evidence and material. - Struck down the customary rule of male primogeniture and applied the civil statute instead. - What kind of application of the Constitution is this? This is direct application of Const. - Minority said we should do something different: reformulated the rule of male primogeniture. Said change it to eldest child rather than eldest male child – this is indirect & active. Shilubana: - Q = did the community have the right to appoint Ms Shilubana as a hosi, did a traditional leadership have the right to restore chieftainship to a house from which it had been removed because of gender discrimination? - The court held that the community had a right to develop its own laws and recognised the appointment of Ms Shilubana as hosi. - CC said not pronouncing on C’ality of issue of traditional leadership, said would give effect to what community did – judgment explicit about fact that court wasn’t making ruling on whether it was C’al or not. - This was passive development. Court went with what family said. At the end of this section you must be able to Explain the implications of the current constitutional recognition of CL. Explain the status of customary law today. Explain direct, indirect, active or passive development of law. Classify the type of development of the law (direct, indirect, active or passive) you see in the cases going forward.  Discuss the reasons why the development of customary law may be problematic. Critically analyse the development of CL by the courts, is there an evolution in the court’s jurisprudence, can you engage with what the courts are doing? NATURE OF CUSTOMARY LAW NATURE AND CONCEPT OF CUSTOMARY LAW There has been shift in nature of CL. Historically was defined by race – besides about 1, all references to race have been removed. Not defined in Const so we find definitions in Acts. Customary law emerges from what people do, or more accurately from what people believe they ought to do – the ultimate test is what do the participants in the law regard as the rights and duties that apply to them? Does the law define ‘African Customary Law’? Law of Evidence Amendment Act 1988 uses the term ‘indigenous law’ and defines it as the law or customs as applied by Black tribes in RSA. See the focus on race – sign of the times. Not defined in the Constitution. RCMA and the Reform of Customary Law of Succession Act (post Constitutional legislation) define CL as the customs and usages traditionally observed among the indigenous African peoples of SA & which form part of the culture of these peoples. Who are indigenous African people? Does it recognise the customary law of Muslims/Hindus, etc in South Africa? NB: doesn’t include religious marriages/law. Some countries do but not us. Religious law does not fall under CL. Could Afrikaners be recognised as indigenous? At what point in time do you consider whether someone is indigenous? What about the KhoiSan? Today the terms CL, ACL and indigenous law are (generally) used interchangeably in the literature. When does a custom form part of culture? When does habit/custom cross over into being law? Theorists say you have custom (habit) but in order to be law you must think of it as law – Hart says it is a critical reflective attitude – they think if they don’t do it their will be a sanction. This is what makes it CL. Not a lot of evidence of people talking about whether they think the law is binding (critical reflective attitude). Courts seems to side step this issue – asks if custom is in accordance with BOR. So NB to consider if you subject CL to Const – as soon as aligns with Const court will usually recognise it. Custom is regular, convergent, habitual behaviour. People act in the same way. Hart: social rule has internal & external aspect. External behaviour is the custom, the regular, convergent behaviour, when people act in the same way, what an outsider can observe. Internal aspect is a critical reflective attitude towards certain patterns of behaviour as common standards. Critical reflective attitude: people consider the behaviour a general standard to be followed by the group as a whole. With habits you don’t need to think about it, it’s sufficient that you act.  Accordingly, deviations from the common standard of behaviour are open to criticism & threatened deviations met with pressure to conform. Criticism of non-conformity thus regarded as being legitimate/justified. DOES THIS ACCORD WITH CASE LAW? Not really. Courts seem to refrain from a examination of whether custom constitutes customary law Decisions to apply rules are often driven by the protection of constitutional rights Understandable given the variation in conduct and what a community considers binding Promotes the development of law in accordance with the Constitution Does it distort customary law? DOES THIS ACCORD WITH HOW PEOPLE DISTINGUISH BETWEEN CUSTOM AND CUSTOMARY LAW? From the case law, no. What is the nature of customary law? MN case para 24: - ‘This Court has, in a number of decisions, explained what this resurrection of customary law to its rightful place as one of the primary sources of law under the Constitution means. This includes that: a) customary law must be understood in its own terms, and not through the lens of the common law; b) so understood, CL is nevertheless subject to the Const and has to be interpreted in the light of its values; c) CL is a system of law that is practised in the community, has its own values and norms, is practised from generation to generation and evolves and develops to meet the changing needs of the community; d) CL is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life; e) CL will continue to evolve within the context of its values and norms consistently, with the Constitution; f) the inherent flexibility of CL provides room for consensus-seeking and the prevention and resolution, in family and clan meetings, of disputes and disagreements; & g) these aspects provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility and belonging in its members, as well as the nurturing of healthy communitarian traditions like ubuntu. Distinguish between living & official and state the features. To answer this you must distinguish between OCL & LCL. Living customary law: - Actual practices or customs of the indigenous community. - Flexible & dynamic: evolves to meet the changing needs of the community (Alexkor [52-3]; Bhe [45, 153]). This is seen as one of the defining characteristics of CL. Host of CC cases affirms this. Doesn’t necessarily mean that it is going to evolve in accordance with the Constitution and LCL must still be checked against the Constitution. Change may be rapid i.e Shilubana case. But in reality change is often more gradual and slow. And so it’s not that the law is changing so quickly that it is uncertain and we do not know it. The ossification of CL during colonisation and apartheid prevented the evolution of CL and so must bear in mind that LCL by its nature responds to social change. Informal system which tends not to have clear definition and boundaries.  Flexible set of practices, processes & ethical principles. Not rigid rules. Focus on consensus seeking and dispute resolution. No mechanical operation of rules to the facts, the focus is on resolving the dispute and finding the best outcome for all parties. (Bhe ). Unwritten oral tradition (Alexkor ) Historically there would be stylistic & social controls i.e alliteration, rhymes, mnemonics, proverbs, objects, places and topographical features. It is not a completely uncertain system of law. (Q: CL not inherently uncertain as has its own system of controls for people living according to it). It is up to date – rules not used are forgotten and not passed down Ascertainment for outsiders is problematic, as seen in Bhe, Mayelane, etc. (We discuss problem of ascertainment later.) May have conflicting accounts of customary law point in question. Mayelane CC Dealt with issue of first wife’s consent for husband’s second marriage. -: Majority stated that diversity of responses may seem to present a problem but it does not. We do not think the further evidence should be viewed as presenting a difficulty in deciding the case. The perspective we gain is not one of contradiction, but of nuance and accommodation. Majority develops customary law to require consent. [117-123]: Minority (Zondo J): There is a material dispute of fact; is consent required? Goes through witnesses statements to show how they contradict. [133-139] (Jafta J): Don’t need to develop CL to require consent of first wife, custom already requires the consent of the first wife for a subsequent marriage. It is the conflicting accounts of the law which give rise to the minority judgment. Nature of official customary law Found in codes of customary law, legislation and precedent. Also may include textbooks and other literature. By its nature it is formal and codified. Ordered set of rules, classified according to marriage, succession, etc It is an ossified version of the law and needs to go through a process to change. Does not just change in response to social circumstances. Easy to ascertain. While there may be slight differences in interpretation, don’t have huge differences in accounts of the law. May have accorded with the actual practices of people at one time but not necessarily so. Real danger is that it doesn’t accord with actual practice What is the relationship between official and living customary law? OCL may overlap with & influence the application of LCL. (Exam Q) OCL may at some point accord with LCL. Woodman argues that when LCL is applied by the court it is transformed and changed. This is because of the different nature and underlying values of common law courts. OCL influences LCL to the extent that it changes the actual practices of people. LCL influences OCL, the way it is interpreted and implemented. How is customary law made? People’s behaviour: When people behave regularly in a particular way.  During the dispute settlement process: The outcome may modify a norm or the behaviour of people in a certain way. So for example if a chief were to decide that a woman can inherit this may change the inheritance practices. What does this depend on? Legislative pronouncement/case law. What’s the difference between common law custom & customary law? Shilubana : - Custom is regarded as an immemorial practice that fills in gaps in the common law. Not an original source of law capable of independent development but rather useful accessory to common law. Validity of custom depends on unbroken practice. Van Breda test for custom: long established, reasonable, uniformly observed and certain. Notion of custom in common law – ancillary to common law. CL is not custom it is completely different they just sound the same. CL is an original source of law, it’s adaptive and change is intrinsic to customary law. So we expect CL to change and it would be completely acceptable if it did. But change in respect of custom means it wouldn’t exist anymore. So be careful about applying the common law test for custom to customary law. If you require that a rule be consistently applied in the past before it is recognised as a CL rule, you will prevent the development and change in CL At the end of this section, you must be able to Compare and contrast official and living customary law. Explain how Hart distinguishes between habits and rules. Explain the relationship between official and living customary law. Distinguish between custom and customary law. Analyse case law to identify defining characteristics of LCL and OCL. Explain how cases determine whether conduct constitutes customary law. CONCEPTION OF ACL AFRICAN CONCEPTION OF LAW What precisely do we aim to achieve when we attempt to deliver a conception of law in African thought? There are 2 parts to the answer Part 1: - We aim to answer a set of interrelated questions about law itself. - What is the essence of law? What is the principle nature of law? What makes some rule law and not merely etiquette? What, if any, is the relationship between law and morality? What is the scope and limit of law? What is the purpose of law? Part 2: - We also want to eliminate these questions from the perspective of people who are positioned as epistemic agents in a given place – Africa. - So on the other hand, our aim is to explain precisely the sense in which law is African. - What makes some conception of law African and not Western, for example, or Asian?  - This is complicated by the fact that the term African is potentially problematic. Is the term purely geographical? - Is a concept of law then African because it exists in this geographical area? Is the conception of law African because it is unique to Africa? Is it African because it draws an aspect of African culture and world views? - Is it African because it is propounded by an African, someone who identifies an African, perhaps a black person. - Can a conception of law be regarded as African if it is adopted and adapted by people on the continent, although it comes from Europe or elsewhere? Clarifying the meaning of the terms ‘law’ and ‘African’ is a great way to prepare the ground to explain what makes a conception of law African. But that's not all. We also must not lose sight of the fact that for centuries, Africa and Africans were routinely depicted as the 0 points of knowledge production in general, and legal knowledge in particular. In other words, they were deemed incapable of producing knowledge, including legal knowledge. The result has been a widespread belief, even among prominent thinkers, that African law does not exist or that African societies, traditional African societies, lacked a system of law. So therefore, a final part of our aim is to challenge this myth and to thereby reclaim Africa as a legitimate site of knowledge production, including legal knowledge. We will begin in the first half of this lecture with this third aim in mind, and thereafter we will interrogate the term African and then articulate the most plausible conception of African law. MYTH THAT AFRICAN LAW DOES NOT EXIST OR THAT AFRICAN SOCIETIES LACKED A SYSTEM OF LAW Lecture will proceed to set out a number of reasons why some thinkers have held that there was no law in traditional African societies or that African thought lacked a conception of law. Describes these reasons as myths and there's a reason for that. The reason is that he goes on to give us other reasons why we might doubt them. Following this strategy allows you to consider both sides of the matter and to make an informed or considered judgment. Myth 1: There can be no African conception of law because Africa lacked a recorded history There are two parts to that claim. One part of it purports to be factual. - It says, African societies were predominantly non literate. - In other words, there wasn't a widespread culture of writing in these societies, and so no recorded history. - And if you lack a recorded history about legal norms, you cannot have a conception of law. The other part of the claim is an assumption that there is a fundamental connection between an established literate culture and having a conception of law. - This is because a conception of law is essentially a development of a history of ideas related to legal norms. Now here's a very simple way to express that argument in the form of premises and a conclusion. Premise 1: A theory of law is fundamentally a history of ideas related to legal norms. Premise 2: There is no history of ideas related to legal norms that is legitimately African. Conclusion: Therefore, there can be no African conception of law. The argument articulated is probably the most troubling for the view that there is a conception of African law. The reason is that we have no set of texts or some similar evidence that proves that there was a sustained legal discourse around the conception of law held by traditional Africans.  Even so, it is important to keep 2 aspects of that objection to African law separate. One aspect of the objection concerns whether there is evidence, specifically written evidence, that there is a history of ideas related to legal norms. The other aspect concerns whether there is an African conception of law at all, whether any ever existed. 1 is an epistemological issue, whether there is evidence to know. The other is an existence question, whether something like that ever existed. Important to keep them apart because it is quite possible for someone to insist that a people possess a conception of law even if there was no written record. After all, such record may have been destroyed or lost. So, it is quite possible to establish that there was a conception of law in traditional African societies, even if we have no written record for it. To put the point differently, it is one thing to ask whether people had a conception of law, and quite another to ask why they did not write it down. So here's the first response. - One might argue that the existence of a history of ideas related to legal norms is not the only or most reliable way to determine whether a people possessed the conception of law. - This position can be inferred from the writings of well known African scholar of law, Elias. - He argued that wherever there has been interest in the preservation of personal freedom and the protection of private property, there has been a conception of law since these are the two functions of law in any society. - In other words, if you want to know whether African, traditional African people held the conception of law, you have to ask whether they've been confronted by need to protect personal freedom and to protect private property? - If the answer is yes, then you can infer and you can attribute a conception of law to them. - In a similar vein, Dlamini argues that we can unproblematically attribute a conception of law to a people irrespective of race and nationality, in so far as they have been plagued with such challenge as the settlement of disputes and the maintenance of peace and order in society. - Again, seen from Dlamini's perspective, it is not unreasonable to attribute a conception of law to a people even if there was no written record of ideas related to legal norms. - Keep in mind that the objection says the way to know whether Africans held a conception of law is to look for some kind of written record. Our response is that there are alternative ways to know that may not rely on a written record. Now, notice that the response so far targeted premise 1 of the argument in the previous slide, but we can also say something about premise 2 in that argument. And it is really that Africa does not necessarily lack a history of ideas related to legal norms. You can only make that claim if you focus on a written record. And the way we can challenge that premise is to simply point out that the claim relies on a narrow understanding of what it means to have a history of ideas. Thinking more broadly, one finds that a history of ideas can be preserved and or transmitted through oral and artistic modes of transmitting ideas. In addition, it is well known that many pre colonial institutions survive the onslaught of colonialism, and can be reliable carriers of a people's history of ideas. Lacking a written record of history, Africans can turn to other sources, such as their oral history in making sense of the conception of law held by their forebears.  All this means that we need not be persuaded by the first myth. Myth 2 concerns the absence of legal symbols The claim being that wherever a system of law exists and a people had a conception of it, there are appropriate legal symbols such as courts, judges, police, prisons, and so forth. Put differently, the existence of symbols of legal authority is a characteristic of a society where there is an established system of law and where the people have a conception of law. Some have claimed actually that African traditional societies lack this feature. They lack these legal symbols, and on this basis, they have concluded that there was no conception of law in these societies. For example, Driberg held that the the possession of law is a characteristic of a very restricted group. In other words, not all societies possess a concept a conception of law, and traditional African societies seem to fall within that category for Driberg. If Driberg is right, then African traditional societies lacked a conception of law. Let's follow the argument in terms of premises and a conclusion. Premise 1: a conception of law entails appropriate legal symbols. Premise 2: appropriate legal symbols are not characteristic of traditional African societies. Therefore, a conception of law is not characteristic of traditional African societies. We can easily rebut the first premise of the argument by simply noting that although legal symbols might constitute evidence for the existence of a legal system or that a people held a conception of law, it is by no means essential to law. If that is right, the first premise, is false and the argument breaks down at that point. But even if we grant that legal symbols are essential to law, it isn’t true at all, as premise 2 claims, that these legal symbols were entirely absent in traditional African societies, or that they weren’t characteristic of traditional African societies. What one finds instead is that traditional courts were a feature of these societies, and there were various kinds of instruments for enforcing the law. And sometimes, specimens are designated to function in the role of settling disputes, which we might equate to judges in our modern day. E.g. use of the traditional Gacaca courts in Rwanda as part of that country's efforts to deal with the genocidal past. In addition, in the article by Idowu, reference is made to certain groups in Southern Africa, and what one finds is that among them, there is an established legal system in their pre colonial history. All of these point to the fact that legal symbols were a feature of traditional African societies, even if they did not look exactly like we have them today, or as they were in other societies. Myth 3 denies a conception of African law on the basis that it fails to countenance sanctions or punishment for offenders In short, it says if your conception of law lacks sanctions then it is not really a conception of law. Let's take that a bit more carefully. It says a conception of law has one of its fundamental element, the idea of punishment, in other words, it is necessarily punitive. The accusation, however, is that African conception of law isn't punitive, it lacks the punitive aspects of law, therefore, it falls short of being a robust conception of law. To put it differently, a conception of law is both positive and negative. It is positive in that, it directs people on what to do and stipulates punishment for them, when they fail to do so.  That last part is the negative aspect of law. In other words, it stipulates punishment, when people fail to adhere to the law. Traffic laws, for example, do not only direct road users to drive at a certain maximum speed, but they also fine, and in some cases criminally prosecute offenders for violations. Claim here is that African customary rules merely direct people on what to do, but does not punish them, or lacks a punitive aspect. As such, they do not count as legal norms because what makes legal norms legal is precisely because they are characterised by the punitive aspects of law. Let's see the argument in full. Premise 1: a robust conception of law is necessarily both punitive and negative. Traditional African societies exhibit positive, but not negative features of law. Therefore, traditional African societies lack a robust conception of law. The first step to responding to the objection is to note that it exaggerates an aspect of African law, namely, that it aims to be reconciliatory and restorative, rather than being merely punitive. Because in these societies, the primary function of law is to restore harmony and order, effort is usually directed to restore a situation that has been disturbed. E.g. when crime has been committed, goal is usually to restore things to original state or to reconcile the affected parties. It is plain false to say that these African societies were not characterised by rules that punished offenders for wrongdoing. A careful and charitable interrogation of these societies revealed that, the legal rules in them were characterised by aspects of punishment. When one considers practices such as expulsion from community, withdrawal of economic cooperation, seizure of property, ostracisation, public ridicule, and even capital punishment, which were deeply woven into the social life of these societies. One has to conclude that application of sanctions, sometimes very severe, was prominent feature of law in these societies. One more point needs to be made: The restorative and reconciliatory aspects of African law are not opposed to the punitive aspects of African law, or need not be seen as opposed to each other. For it is quite possible for a people to adopt punitive measures as part of a broader set of interventions to attain reconciliation and restoration. Myth 4: There is no African law because African traditional societies did not manifest distinctively legal rules Although there were many different norms and and rules of conduct in these societies, they were strictly speaking customs, habits, perhaps moral and religious rules. But, there was no clear attempt to distinguish which ones are legal rules. However, what is essential to a conception of law is that it explains what distinguishes legal rules from non legal rules. Instead, according to some commentators, traditional Africans comprehended customs only and did not distinguish legal rules from moral or religious rules or even customs. Thus, to the extent that they failed, that they conflated or lumped together legal and non legal rules, they failed to possess a distinctive conception of law. Here's the full argument for the view in the form of premises and a conclusion. Premise 1: A conception of law should distinguish clearly between law and other norms, e.g. customs. Premise 2: Traditional African thought does not distinguish between law and other norms. Conclusion: Therefore, traditional African thought lacks a distinctive conception of law.  One difficulty with the claim that African law lumps together legal and non legal rules, or that it fails to distinguish them clearly, is that it seems to place an unfair burden on the African to settle once and for all the philosophical question of what law essentially is. And it is unfair because there is no such demand on Western scholars to settle the question once and for all, or to draw a sharp line between law and morality. On the contrary, legal scholars in the West remain divided on the meaning and nature of law, and especially on the relationship between law and a non legal rule such as a moral rule. Whereas some of them insist that we must divorce legal rules from moral ones entirely, others characterise law by reference to morality. Indeed, there is a respectable tradition within Western legal jurisprudence. It goes by the name of naturalism, according to which, whether or not some rule counts as a legal rule depends in part on whether it passes a moral test. So here is the first reply: - If the meaning and nature of law in Western thought, and thought in general, remains unresolved, and if there is a respectable conception of law that says legal rules must pass some moral test, hence combining legal and moral rules in some way, why should we reject an African conception of law simply because it makes reference to non legal rules such as customs or morality? - To do so seems to me to express a bias against the African conception of law. The point just made targets premise 1 of the argument. But there's something to be said about premise 2 of that argument as well, and that is that it is partly false. But even if it were true, it need not be an obstacle to an African conception of law. And what we want to point out is that it is quite possible to make linguistic and conceptual distinctions between law and non law, between legal and non legal rules. Africans had the terms to distinguish between them. Okafor writes, laws as such, as opposed to mere customary rules, are called Iwu and Ofing by the Igbo and Yoruba tribes of Nigeria, and a tribe of Ghana has a name for it too. The word ‘tribe’ is Okafor’s, not mine. I don't like it. But here is the point – it is possible to make these conceptual and linguistic distinctions between law and non law. In other words, the people were able to make these distinctions. But as a practical matter, all laws, all rules, all norms serve the same purpose of advancing collective harmony, and this is why it made little difference to distinguish them in practice. So, the requirement that there must be a sharp distinction between legal and non legal norms can be met by an African conception of law, even though in practice all rules serve one final aim: advancing collective harmony. Myth 5: says roughly, if there is no plausible basis for obedience to law, there can be no conception of law Now we can explain that a bit more carefully. A conception of law typically includes some rationale for why one ought to obey the law. In some cases, the possibility of sanctions by an authoritative entity is treated as the basis of obligation to law. In other cases, one may be obliged to obey the law because the law is in conformity with natural justice or because it is morally sound. Now, the accusation here is that law in African thought is outsourced to some supernatural entity, such that it is fear of these mysterious entities that compel people to adhere to legal rules.  An African conception of law falls short, the accusation goes, because it lacks psychological or moral motivation for adherence to legal rules and this is a crucial element in a conception of law. Moreover, in outsourcing the basis of obligation to supernatural forces, it betrays itself as a set of religious rather than legal rules. Since the origin of these laws and the basis for obligation are all linked to some spiritual entities, it appears that we are not dealing with a conception of law, but a set of religious rules. As with the previous cases, we can express this accusation in the form of premises and a conclusion. - Premise 1: The basis for obedience to law in African thought is belief in or fear of supernatural powers. - Premise 2: Belief in or fear of supernatural powers, is an implausible basis for obedience to law. - Conclusion: Therefore, traditional African thought lacks a robust conception of law. How might one respond to this accusation? One might point out that it is based on a false anthropology of traditional African societies. But what does that mean? It means that those who have studied these societies have tended to exaggerate the influence of belief or fear of supernatural forces and even extended their influence to domains where they usually are not applicable. It is true that traditional African societies exhibited fear of supernatural entities and this is sometimes the basis for adhering to certain rules. However, what is false is that belief and fear of supernatural entities pervades all aspects of their lives. On the contrary, belief in or fear of supernatural entities is restricted to areas of breach of sacred rules of rituals and religion. They are applicable only in the context of the religious and the sacred. That conception of law does not ground obligation to obey the law in belief or fear of supernatural forces. AFRICAN LEGAL THEORY In previous lecture, we analysed & rejected considerations against the possibility of an African conception of law. But we are yet to explain what exactly an African conception of law consists in. Having dealt with those myths, we are now in a better place to articulate a conception of law that is African and plausible in a certain sense. I say ‘a certain sense’ because, as we noted, there is no one way and no easy way of deploying the term African, and that the term African can be potentially problematic. This means that some ways of deploying the term can be more plausible than others. After articulating an African conception of law, we shall take some time to explain sense in which it is plausibly African. The conception of law we'll be setting out here is due to Okafor. Whereas, this part of the lecture focuses on Okafor’s text, in the first part of the lecture, we relied heavily on the work of William Idowu. We begin with the claim that a conception of law, whether African or Asian or Western, aims to do 2 things First, it aims to set out the conditions of legal validity, and second, it aims to account for the normativity of law. What do we mean by set out the conditions of legal validity? We mean that we are going to define the general conditions under which some putative norm counts as law or is legally valid. So we are going to set out conditions that enable us to tell that among a set of rules or norms, some of them are legal and others are not. Some kind of criteria for deciding whether a certain norm is a legal norm or not.  More specifically, what we are interested in is in the source/s of those norms, and in particular, whether those sources are the appropriate sources of such norms? We are also going to be interested in the content of the norms as far as an African conception of law is concerned. In other words, what those norms direct us to do. So we're not just interested in the sources of the norms, who makes them, and whether they have the authority to do so, but we are also interested in what those norms tell us to do. We are indirectly also interested in whether the source of a norm alone is sufficient to make that norm legal, or whether, in addition to the source of the norm, we should also look at the content of the norm. And as we shall see, Okafor offers us a picture of African law that requires both criteria to be met. Now that we are clear on what it means to set out the conditions of legal validity, let us consider what it means to set out an account of the normativity of law. That means we are going to offer a philosophical explanation, some kind of justification, why we have to obey the law? Why ought you obey the law? What about these legal norms make them such that you ought to obey them? A conception of law should give us an explanation of that. Recall earlier on when we talked about the basis of obligation. Now looking at Okafor’s explanation for why legal norms in African thought are such that we are obligated to obey them. And what we will learn is that the justification is not based on fear of supernatural forces. It is grounded elsewhere. Let us dwell a little more on the conditions of legal validity. We want to explain the criterion for deciding what makes a particular norm counts as law. There are 2 things we are interested in: The first is the source of the norm, and then later we will consider the content of the norm. These two conditions set the bar really high for us. The conception of law we want to put forward must meet these conditions we have just listed, if it is going to count as an African conception of law. And this is what Okafor sets out for himself, and this is what we are going to look over. Okafor says, in practice, the Afrikans are fully aware that the laws that regulate their lives are not of the same nature. They are obviously conscious of the fact that all laws are not of equal importance. Implicit therefore in the African conception of law is the conviction that law is of various categories. The first thing we take from this idea is that there are at least two sources of law and these are the two sources that Okafor goes on to elaborate in the text. The first one is divine laws, and the second one is human laws. Divine laws involve norms that derive the authority from some supernatural agent, say God or an ancestor. Human laws derive the authority from natural agents such as a monarch, a chief, or council of elders. What are the characteristics of rules that are classified as divine, that have their source in the divine? - There are four characteristics according to Okafor. - The first characteristic is that they are not enacted by men, which is the most obvious one. - The second is that their violation carries grave sanction and sometimes may involve the penalty of death. - In addition to the above, he says some ritual must be performed when those norms are violated. - Lastly, it is believed that supernatural wrath has been provoked when when someone violates one of those norms, and sometimes the wrath of the supernatural will sweep across the entire community of the offender.  Examples of norms that may be broken that is classified within the domain of the divine: incest, homicide, patricide, and violation of certain taboos. What's crucial for us is that whatever rules derive their from human agents will not have these characteristics. What about human law, human sources of law? - These are rules, according to Okafor, that have their origin and authority from human agents such as a monarch, a chief, or a council of elders. - So what are the characteristics of such rules? Okafor provides 3. - He says all such rules are usually connected to the economic, social, and political life of the community. So they are not concerned with the religious and the sacred. - The second characteristic is that when you break those rules, there is some kind of sanction, but it's not as grave as those associated with the divine norms. - Lastly, for such offences, the sanctions are usually commensurate with the nature of the offence committed. These are the ways that divine and human sources of law differ according to Okafor. What lesson do we glean from this? I think there are 2 lessons. The first is that divine laws go beyond the scope of what counts as legal and so, properly speaking, norms that have their source and authority in a divine / supernatural entity are not strictly speaking legal norms. The second lesson is that legal are those norms that derive their source and authority from natural agents, such as a monarch, a chief, or council of elders. So essentially, what we are looking for when we want to identify a particular norm as a legal norm we are looking for a particular source of the norm & specifically for an authoritative human agent. Again, this tells us very clearly that Africans draw a sharp line between the domain of the sacred and the religious on the one hand and the domain of the human, where the category of legal essentially applies. What we have now established is that norms that count as law must have an authoritative human source. Why is that significant? Because it rules out a range of putative rules or norms as legal. E.g. rules in the domain of the sacred and the religious are not, strictly speaking, legal norms because they do not have their source as an authoritative human source. 2nd, cultural habits and customs or other rules of society that do not originate from an appropriate authoritative source, such such as the chief or the monarch or a council of elders, cannot constitute law. So this conception of law already allows us to begin to distinguish the legal from the non legal, which is a very important point given that one of myths we looked at indicated that this possibility is not available in an African conception of law. Now, we want to turn to a second criteria that we have to look at when considering the conditions of legal validity. Okafor claims that the the authoritative source is not enough to make that norm legal. Something else is required in addition to authoritative human source of the norm, and we want to understand what that is. But before we understand what it is, we have to first understand why Okafor says appropriate, authoritative source is not by itself sufficient. He says it is not therefore the authoritative source, their determinant character, and their predictable coercive sanction that qualify the rules as laws, but their ontological basis, their moral content. He says the legal ease and the ethical ought are 1 and the same question in African jurisprudence. We must focus on the two reasons that may have led Okafor to say the authoritative source of a norm is not by itself sufficient to make that norm count as legal.  The first reason: - This is what he implies elsewhere in the article where he talks about the possibility of unjust laws. - If law depends for its character solely on the authoritative source then we heighten the possibility that that source could make unjust and inhumane laws. - Take e.g. apartheid laws. These laws were regarded as laws even though we've come to realise that they failed test of natural justice. They were morally unsound, & this is precisely the possibility that Okafor wants to avoid. - So he says we shouldn’t depend only on authoritative source, but must ensure that those norms pass a moral test. The second reason: - He thinks that if we focus on authoritative source alone, we narrow the province of jurisprudence. - We offer a very narrow picture of what the law is, one that does not include an explanation of why those norms are morally justified because in doing so, we insist on a separation between law and morality. - That's an important consideration given that we've emphasised previously that, in African conception of law, the source of the law is not enough. We must look at what the law tells us to do as well. - But here, the reason why Okafor is insisting on the inclusion of moral considerations is precisely because he's anticipating a situation where his account of his conception of law, of African law, can explain why law is morally binding, why people are obligated to obey the law. - And the only way you can do that from Okafor’s POV is to show why the the law itself is morally justified. - Whereas an approach that focuses only on authoritative source of law fails to explain why law is morally binding. - So insistence on including moral considerations is precisely to explain why people ought to obey the law. And the simple answer would be that the law is just. It conforms with the dictates of natural justice. Now that we understand why Okafor insists that an authoritative source by itself is not enough to make some norm law we should now turn attention to the second aspect of the conditions of legal validity, which is the content of the law itself. What then is the normative content of African law? According to Okafor, positive laws, African positive laws and the entire legal experience have metaphysical and moral foundations. What he means is that the content of African law can be derived from an African ontology and an African morality. Okafor says the following, which captures what African ontology or worldview is and the ethics or morality implied by it: - There is an active interaction among beings a kind of intersubjective communion. - Man finds himself in the vortex of these forces, and of course, these forces are right in his ecological hair. - Man's felicity and even his survival will depend on his degree of harmony with these other forces. - His felicity and survival depend further on the level of harmony with its fellow human forces. We need to clarify the sense in which African Ontology and morality feeds into legal norms. There are 3 steps in Okafors' reasoning that help us see clearly how an African ontology and an African morality provides the content of legal norms. The first step: - The move from ontology to morality, or what mainstream philosophers call traversing the is/ought gap. - So, drawing conclusions about what we ought to do from the way the world is constituted. - Roughly, the idea for Okafor is that since African Ontology, that is the way the world is constituted in African thought, involves a fundamental interdependence or harmony between the things that exist, it follows that cosmic harmony is the ultimate goal of all human actions.  - So because things in world exist in harmony with each other, it follows that we ought to always act to promote harmony. - In short, the first step of Okafor’s reasoning is that ‘is’ implies ‘ought’. - If the world is harmonious, it implies we ought to act to promote harmony all the time. The second step: - Human agency has the potential to either preserve, disrupt or restore this delicate balance or harmony in the universe. - Since we are free agents, we are able to go against the order of things or harmony & interdependence in universe. - Sometimes, we are also able to conform our behaviour to these order of things, to be harmonious. - However, he wants to insist that the univers