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The Political Economy of Customary Law in the Former British Territories of Africa

Published online by Cambridge University Press:  28 July 2009

Ann Seidman  and
Robert B. Seidman
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Extract

In assessing customary law two quite contradictory tendencies exist. Some approach customary law deferentially, even reverently. This constitutes “our” law. It expresses “our” values. We must nurture it. Others take precisely the opposite perception. Customary law constitutes the law of primitive tribes; we aim to become modern; ergo, we must do away with customary law. How to choose between these quite conflicting perspectives?

We argue that to understand customary law, we must understand its political economy, that is, the function it performs in existing socio-economic and political structures, particularly with respect to the class interests involved. We undertake here to put forward our understanding of the political economy of customary law in the English-speaking countries of Africa. To do that, we describe, first, the difficulties which require explanation and solution, that is, the poverty and vulnerability of the mass of Africa's people; second, for that poverty, we attempt an explanation, which takes the legal order as the manipulable variable; and, finally, we suggest briefly options for reform and change.

Type
Research Article
Information
Journal of African Law , Volume 28 , Issue 1-2: The Construction and Transformation of African Customary Law , Spring 1984 , pp. 44 - 55
Copyright
Copyright © School of Oriental and African Studies 1984

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References

1 See generally Seidman, A., Comparative Development Strategies in East Africa (Nairobi, East African Publishing House, 1972) 53.Google Scholar

2 See generally Seidman, R. B., State, Law and Development (London, Croom-Helm, 1978)Google Scholar.

3 Dorner, P., “Needed Redirections in Economic Analysis for Agricultural Development Policy” in Domer, P. (ed.), Land Reform in Latin America (Madison, Wisconsin, Land Economics, 1972) 5.Google Scholar

4 Seidman, R. B., “A Note on the Construction of the Gold Coast Reception Statute.” 13 JAL 45 (1969)Google Scholar.

5 Gold Coast: Supreme Court Ordinance, 1876.

6 See generally Allott, A., Essays in African Law (London, Butterworth 1960) 197–201Google Scholar.

7 Seidman, , supra n.-2, at 84–87Google Scholar; Palmer, R., “The Agricultural History of Zimbabwe” in Palmer, R. and Parsons, Q. N. (eds), The Roots of Rural Poverty in Central and Southern Africa (London, Heinemann, 1977), 228Google Scholar.

8 Phimister, I., “Peasant Production and Underdevelopment in Southern Rhodesia, 1890–1914, with particular reference to Victoria Distant,” in Palmer and Parsons supra n. 8 at 221Google Scholar.

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10 Proc No. 55 of 1910, sec. 14.

11 See generally Seidman, R. B., “The Individual in African Law: Zimbabwe's New Primary Courts”, paper delivered at a Conference on the Individual in African Law, Swaziland, 1981 and published in the Conference's ProceedingsGoogle Scholar.

12 See generally Seidman, R. B., “Rules of Recognition in the Primary Courts of Zimbabwe: On Lawyers' Reasoning and Customary Law”, 32 ICLQ 871 (1983)Google Scholar.

13 Alt. Gen for Nyasaland v Jackson, [1957] R and N.L.R. 443Google Scholar.

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15 Seidman, supra n. 2.

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