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Summary of 6 pages for the course The Worlds Legal Systems at UVT (Chapter 6)
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Rechtsfilosofie B1) The challenge to the legal nature of African law in Western legal
thought
Scholarship about African laws denies the existence of law in social context.
Positivist bias is strongly reflected, leading to claims that there was no proper law
in traditional Africa. Is there an African law?
African laws and African jurisprudence have always faced a barely hidden
undercurrent of denial of African laws and their potential contributions to
jurisprudence. African law is merely a kind of ethnic label and the collective term
‘African laws’ comprises evidently many different types of legal systems. It is also
so that European legal observers have massively ignored evidence of mainly oral
African laws and brushed it aside as ‘culture’. In Africa, too, positivism and state
laws, natural law concepts and values, and socio-legal normative orders have
been interacting dynamically at all times as powerful claimants for the attention
of individuals, communities, whole states and academics. African legal history is
divided in 3 major periods: pre-colonial, colonial and postcolonial African law.
Much of traditional African law became invisible unofficial law as a result of
colonisation.
The Western thought that the people in Africa had no laws and didn’t recognise
their customs and oral rules as laws. This was because of the fact that a lot of
rules and laws were orally or given in by ancestral customary laws or because of
their belief in the harmony amongst all forces in the world, the sky, nature and
men.
2) The nature of traditional African law
The nature of traditional African laws
Parts of Africa south of the Sahara were ruled by their own ancestral customary
laws for centuries. The fairly complex social system had means for the resolution
of disputes or the creation of new rules of conduct when new circumstances
created fresh problems for the community in question. All there rules of law were
not codified, but formed a part and parcel of the fabric of local tradition. They
rendered essential justice in a particular case in conformity with the general
principles and the appropriate patterns of behaviour recognised by custom for
each relationship or transaction. Like Chinese law, its main source of law has
been ancestral custom. It is not a single system, but rather a family of systems
which share no traceable common parent.
The evidence is clearly that early Africans lived by law-like rules and norms, and
that they used a variety of processes to apply and develop such normative
plurality. Thus: early African societies certainly had laws, but they did not
manifest themselves as formal laws. In fact they might be heard rather than
seen, even today, since so much depends on the spoken word in the orality-
focused context of traditional African societies.
The nature of its ‘customary law’ in particular
African customary law as a self-controlling system (6.3.4)
Customary law derives from social practices that the community concerned
accepts as obligatory. As elsewhere, traditional African customary laws relate to a
specific area or group of people, and are not a nationally agreed body of rules.
African customary laws were not book-law. This orality of law meant that the law
, came closer to the people to whom it applied, increasing the scope for legal
diversity in different parts of a territory or state. This confirms that customs are
norms and rules handed down since ancient times, and yet they may change
over time, a notion that does not match traditional English lawyers’
understanding of custom. They key word in social organisation was cooperation,
which implied social control and basic law-making by the clan(s). The clan was
the main source of an individual’s identity, reputation and pride. This also implied
social control and basic law-making by the clan, as this ‘often served as a form of
behavioral control as a person would desist from acts likely to bring shame to the
clan as a whole’.
Containing and controlling conflicts, preventing them from becoming larger
battles, was seen as a matter of survival for traditional societies. Heavy emphasis
was laid on restoring harmonious social relationships, rather than the pursuit of
abstract notions of justice. Finding justice from case to case was
considered more important than sticking to fixed rules. In other words, the
philosophical beliefs, social mores, obligations and value systems merely set the
parameters within which the individual could operate freely. The African idea of
justice was that whoever dared to upset the prevailing state of social balance by
injuring the generally recognized rights of another must in all cases emerge from
the dispute ‘not richer or more favored, but poorer and less favored than before.
This kind of thinking, also evident from ancient China, has important implications
for strengthening individual self-control.
There were 4 levels of authority or sources of control:
1st: the authority of the living exercised by such personalities as the king
2nd: the authority of the ancestral spirits over the living.
3rd: the authority of other supernatural forces whose cosmic norms and authority
take precedence over those of the ancestors and the living.
4th: the authority of the supreme omnipotent being.
You can suggest a 5th level: the self-controlled order mechanism within individual
consciousness.
For the 3 competing sources of law, the central requirement was that of
balancing and harmonisation. Ebo states that in the absence4 of a police force,
‘every bona fide member of the community is supposed to be an honorary police
of law and order.’ The critical element is that ‘the soul of justice lies in the
determination of equitable equilibrium (the balance of the 3) compensation’.
• Connection to religion/worldview
African worldviews and their conceptual implications (6.3.2).
The African conception of the world is essentially static. They do not reject the
idea of progress, but have a different vision of the world than Western unilineal
‘progressive’ thinking. They find themselves on a slowly moving conveyor belt
through history, a low-speed train that never stops at all, perhaps better
envisaged as an endless chain stretching from past to future. Ayittey helps
introducint the most basic African philosophical tenets: they think the universe is
composed of 3 elements: the sky, the earth and the world. The spheres of the
dead and the ancestors, the living and those as yet uborn are, according to them,
all interlinked in an endless chain. Ebo elaborates the religious dimension of
African laws: the authority behind the law is from the religious beliefs and rituals
of the community. The law of the community, therefore, is conceived and
accepted as the possession and heritage of an endless chain of generations. They
also think that the spirit of the ancestors is incarnated in the law, which is a
precious and powerful factor from which derives an ‘inner concern’ felt by an
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