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Published online by Cambridge University Press: 01 June 2008
Taslim Elias's scholarship on the impact of English common law on the growth of African customary law illustrates the intersectionality negotiated between ‘centre’ and ‘periphery’, universal and subaltern laws. His intellectual portrait is also useful as a heuristic device to excise the doctrines, strategies, imageries, and narratives of progress elaborated about ‘Africa’ and ‘law’. Elias decried the contempt and ignorance exhibited by colonial masters towards native customs and laws; he also vilified judicially crafted ‘repugnancy’ and ‘public policy’ doctrines as instruments of colonial policy to prevent British justice from looking both ways, by ensuring that British standards were the ‘objective’ criteria of abrogation and change. Yet he nonetheless saw these doctrines and English law as a unifying force in the emergence of a unified Nigerian legal system. This article argues that this paradox in Elias's work and his struggle against the asserted dualism between English law and African customary law must be situated in the context of the rise of an African legal consciousness or juridical Negritude, home to various political projects of nation-building, African cultural liberation, and development which strategically intersected in their unstable relationship to law and Western culture. This signals a turn to ‘hybridity’ in legal discourse and Elias's professional trajectory seeking to develop a uniform common law for Nigeria as a way to explicate the workings of this relationship, and how African law is inscribed in the interplay of cultural forces constantly (re)negotiating the boundaries of their engagement with one another. This, in turn, reveals a complex picture of mediating between the simultaneous participation of Third World intellectuals in various struggles and personal or ideological projects within African humanism, which an analysis structured around the stability of centres/peripheries conventionally distorts.
1. For an excellent study of the claims and strategies deployed by colonizers and indigenous peoples alike in negotiating the intersection between normative orders, see L. Benton, Law and Local Cultures. Legal Regimes in World History 1400–1900 (2002).
2. Anghie, A. and Chimni, B. S., ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) 2 Chinese Journal of International Law 77, at 80–2CrossRefGoogle Scholar.
3. A good example of this trend are the works on Algeria by Mohammed Bedjaoui. See notably his La révolution algérienne et le droit (1961).
4. Kennedy, D., ‘New Approaches to Comparative Law: Comparativism and International Governance’, (1997) 2 Utah Law Review 545, at 621Google Scholar.
5. David Kennedy describes internationalists’ and comparativists’ mutual apprehension and distrust thus: ‘From the comparativist perspective, the public internationalist seems philistine, crassly preoccupied with enlisting participation in new-fangled governance structures built on the flimsiest base of cross-cultural understanding. To the internationalist, the comparativist can seem quaint, elitist, irrelevant.’ Ibid., at 588.
6. I have been able to locate three biographies of Elias: I. O. Smith and C. A. Alade, Taslim Elias: A Jurist of Distinction (1991); F. A. Kuti, Elias: A Man of His Time (1991); and A. Thompson, Favored by the Gods (1991). These have been out of stock with major distributors, and thus any biographical references have had to rely on individual contributions, where available.
7. See by T. O. Elias, Africa and the Development of International Law (1972; 1988); Africa before the World Court (1981); The United Nations Charter and the World Court (1989); The International Court of Justice and Some Contemporary Problems: Essays on International Law (1983); and ‘The Role of the International Court of Justice in Africa’, (1989) 1 African Journal of International and Comparative Law 1.
8. Elias was, for example, instrumental in organizing a major workshop in August 1974 under the aegis of the Institute of African Studies of the University of Nigeria, Nsukka, followed by publication of the proceedings as an edited volume: T. O. Elias, S. N. Nwabara, and C. O. Akpamgbo (eds.), African Indigenous Laws (1975).
9. The best example remains Elias's approximation of African customary law to customary international law, as both were ‘law’ although they did not share the criteria imposed by Western conceptions and theories of law and sovereignty. See T. O. Elias, ‘African Law’, in A. Larson and C. W. Jenks (eds.), Sovereignty within the Law (1965), at 220, 222. Just as he dedicated his life to developing African customary law, he would spend many years in such august international institutions as the United Nations, the International Law Commission and the International Court of Justice to break the Manichaeism surrounding General Assembly resolutions and declarations and customary law as sources of law-making in the international community as a means to furthering Third World nations’ emancipatory projects. See also A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005), 7, 20 (citing Elias as one of many Third World jurists who ‘attempted to demonstrate that some of the fundamental principles of international law – relating, for example, to treaties and to equity – were also to be found in African or Eastern systems of thinking and statecraft and indeed, originated not in the West, but the colonial world itself’). This argumentative strategy is all too reminiscent of Elias's work on African customary law.
10. Nowhere is this more aptly epitomized than in the essays collected in the Festschrift dedicated to Elias himself: E. G. Bello and B. A. Ajibola (eds.), Essays in Honour of Judge Taslim Olawale Elias, 2 vols. (1992). Contributions were organized around two themes that permeated his work: public international law, and African law and comparative public law. The editors were at pains to emphasize that ‘The framework of the essays suggest that they are designed to overlap both in the well-tested and established fields of law and those branches of law dealing with development and change in the “peripheral areas”. It is not unlikely, grosso modo, that either side will draw from and upon the richness of the whole exercise in a mutually reinforcing manner’ (xi), but a glimpse of the various contributions confirms that there is little such cross-breeding taking place. The present essay makes no pretence of faring any better on this score.
11. In the post-colonial era the human rights movement has provided a similar supervening code of values to the general idea underlying colonial policy that the fundamental rights and freedoms of Europe were the basis of the colonial legal order. For some interesting insights drawing on anthropological work and connecting human rights to customary law, see T. W. Bennett, Human Rights and African Customary Law (1995); S. E. Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (2006).
12. Elias defines this expression broadly, as encompassing ‘the body of principles consisting partly of Imperial legislation and colonial enactments and partly of all applicable English law and local customary law throughout the British colonies’. T. O. Elias, British Colonial Law: A Comparative Study of the Interaction between English and Local Laws in British Dependencies (1962), 6.
13. ‘Judge Elias appreciated the British; their peculiar characteristics, and their system of education. He has an extremely high opinion of Lord Denning. He also admires the game of cricket, and often uses the language of this sport to describe everyday events’. E. Bello, ‘Preface’, in Bello and Ajibola, supra note 10, at x.
14. As for others whose work has been analysing the rise of legal consciousness in geographical locales traditionally ascribed to the ‘periphery’, my understanding of the concept is indebted to the legal-historical work of Duncan Kennedy: ‘Consciousness refers to the total contents of a mind, including images of the external world, images of the self, of emotions, goals and values and theories about the world and self. . . The main peculiarity of this [legal] consciousness is that it contains a vast number of legal rules, arguments, and theories, a great deal of information about the institutional workings of the legal process and the constellation of ideals and goals current in the profession at a given moment’. D. Kennedy, ‘Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America 1850–1940’, (1980) 3 Research in Law and Sociology 3, at 23. The difficulties of gesturing at an ‘African legal consciousness’ as an essentializing frame become evident when what is sought to be embodied is not merely legal thought in one country (the United States) and a relatively fixed period (the nineteenth century) but a regional consciousness across an entire continent riven by ethnic strife and social and political turmoil, given the, one would surmise, different conceptualizations and understandings of their national legal regimes during colonial and post-colonial times. Part of the perils and predilections of engaging in historically informed work on legal thought in Africa is to verify whether a prior sense of ‘Africanness’ or ‘pan-African solidarity’ can be located as the set of shared discourses and practices across a wide range of groups and peoples concerning their explicit or implicit awareness of regional unity and identity. My understanding of juridical Negritude is much more limited, however, and confined to the retrieval from the works and thought of one leading figure on the African legal scene (Taslim Elias) of what Kwame Nkrumah (the first president of independent Ghana) called ‘consciencism’, as a way of incorporating in traditional African humanism principles borrowed from European and Islamic models which, Nkrumah felt, had also become part of Africa's cultural heritage. See K. Nkrumah, Consciencism: Philosophy and Ideology for Decolonization and Development with Particular Reference to the African Revolution (1964), 68–70. This consciousness is understood as a vocabulary (or langue) within which its specific avatars in the form of positively enacted rules, or legal regimes (subsystems or structures or paroles) take hold along a wide spectrum of historical events. On ‘langue’ and ‘parole’, see D. Kennedy, ‘A Semiotics of Critique’, (2001) 22 Cardozo Law Review 1147, at 1175. On ‘subsystems’, see Kennedy, ‘Toward an Historical Understanding of Legal Consciousness’, supra. My integrative reading of the structure of legal discourse and elements in legal consciousness draws on D. Kennedy, A Critique of Adjudication (Fin de Siècle) (1997), 133–4.
15. D. Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’, in D. Trubek and A. Santos (eds.), The New Law and Economic Development. A Critical Appraisal (2006), 24.
16. A. A. Mazrui, ‘Cultural Forces in African Politics: In Search of a Synthesis’, in I. J. Mowoe and R. Bjornson (eds.), Africa and the West. The Legacies of Empire (1986), 33.
17. Ibid., at 33–4.
18. Belleau, M.-C., ‘La dichotomie droit privé/droit public dans le contexte québécois et canadien et l'intersectionnalité identitaire’, (1998) 39 Cahiers de droit 177CrossRefGoogle Scholar.
19. Belleau explains the methodological démarche undergirding her approach thus: ‘Strategic intersectionality consists in imagining strategies that take into account experiences rendered invisible when we consider separately feminism and political struggles of national and cultural identity. Imagining spare intersectional strategies presupposes disclosing hidden differences and similarities, deconstructing myths, revealing processes of projection and dissociation, as well as promoting the emergence of new coalitions.’ Ibid., at 181 (my translation). Elsewhere, Belleau has engaged in comparative reading of sociologically oriented French and Québecois legal scholars in an attempt to explicate the invention and loss of a critical jurisprudential tradition or consciousness which would have facilitated understanding the civil law as a social/political institution, much like the critiques of American legal realists have succeeded in doing. See Belleau, M.-C., ‘The “Juristes Inquiets”: Legal Classicism and Criticism in Early Twentieth-Century France’, (1997) 2 Utah Law Review 379.Google Scholar.
20. For the ‘mediating’ function of ‘contradictions of experience’ in consciousness (arising, for example, from ‘inconsistent facts, conflicting emotions, or operative abstractions’) in ways which make the contradiction less striking, see Kennedy, ‘Toward an Historical Understanding of Legal Consciousness’, supra note 14, at 24.
21. R. Bjornson and I. J. Mowoe, ‘Introduction’, in Mowoe and Bjornson, supra note 16, at 4.
22. For a fascinating study on how court assessors of customary law and clerks were routinely complicit in consolidating colonial rule, sometimes unbeknown to themselves, see B. N. Lawrance, E. L. Osborn, and R. L. Roberts (eds.), Intermediaries, Interpreters, and Clerks. African Employees in the Making of Colonial Africa (2006). See also Elias's admonishment of the ‘arming of such subordinate officials of the statutory court with the new magic wand of the record book and of spoken English’ in T. O. Elias, The Nature of African Customary Law (1956), 275.
23. Elias, supra note 12, at 102. For an excellent survey of how cross-cultural trade has influenced the migration of behavioural norms, ideas, and institutions during imperial and colonial rule, see P. D. Curtin, Cross-Cultural Trade in World History (1984).
24. For a personal recollection of the leading jurists and publicists that influenced the making of Nigerian law, see T. O. Elias, Makers of Nigerian Law (1956), a series of studies commissioned in 1956 by the editor of the journal West Africa and reproduced in T. O. Elias, Law in a Developing Society (1973), 11–75. For a brief historical exposition of the impact of the Royal Niger Company on acquisition of territory and conclusion of treaties with tribal leaders, see T. O. Elias, Nigerian Land Law (1971), 17–33.
25. For extensive treatment of how British rule impacted on the development of laws in Nigeria, one is invariably referred to T. O. Elias, Nigeria. The Development of its Laws and Constitution (1967).
26. M. F. Lindley, The Acquisition and Government of Backward Territory in International Law (1969), 91–108.
27. The typical discursive moves within the disciplinary narratives of its own construction as regards chartered corporations were essentially twofold: either they were not ‘subjects’ of international law and thus were removed from the reach of international law in their relationships with native peoples; or they were considered to be subjects and, hence, sovereign in relation to the natives, who, however, looked at them from a position of subordination and delight as to their majesty and ability to administer order and justice in their territories. The former can be traced, for example, in Henry Wheaton's Elements of International Law (1866), 30, §17. For the latter see T. J. Lawrence, The Principles of International Law (1900), 79, §54 (‘It is easy to see how the natives must regard a body of men armed with such authority as that granted to the British South Africa Company, and possessed of skill, energy, scientific machinery, and weapons of precision. To them the company must be all-powerful. They know little or nothing of the Imperial Government. . . He is thousands of miles from the scene of action. . . Practically the company rules its territories in so far as they are ruled at all. It legislates, it administers, it punishes, it negotiates, it makes war, and it concludes peace. . . They are sovereign in relation to the barbarous or semi-barbarous inhabitants of the districts in which they bear sway’.
28. A classical example of the prevailing state of mind are these words of a famous colonial judge: ‘“How do you justify the application of English principles of justice to so many different peoples whose outlook and mentality vary so much from our own, especially when English ideas pass their understanding?” We believe that these ideas are the best that can regulate our administration of justice, and an Englishman, because he is an Englishman and not someone quite different, cannot adopt other persons’ conception of justice. Whether there is really much difference and whether our ideas are not understandable to others, I will not stay to discuss, because if they are not understandable it is a pity, but it must not be allowed to stand in the way of doing what we believe to be right since in the last resort we govern other peoples by our conscience and not by their understanding.’ Sir S. Abrahams, ‘The Colonial Legal Service and the Administration of Justice in Colonial Dependencies’, (1948) 30 Journal of Comparative Legislation and International Law (3rd Series) 1, at 10.
29. Anghie, A., ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, (1999) 40 Harvard International Law Journal 1, at 29–30Google Scholar.
30. My idea of a customary law as a weaker and underdeveloped geographical space inviting foreign, namely Western, interest, penetration, insemination, in short colonization, borrows from Edward Said's reference to how ‘Oriental sexuality’ was depicted in Orientalist literature, the supine feminine Orient suggesting not only fecundity but sexual promise (and threat) as well, and thus portrayed as both dangerous and threatening, in need of control and regulation. E. W. Said, Orientalism (1979), 190, 218.
31. It is generally accepted that Hegel's Philosophy of World History (1837), in its general reference to non-Western peoples and its particular bearing on Africa, provides the most important intellectual foundation for the colonial ideology. It was on this foundation that classical anthropology sought to rationalize European domination of other races by presenting them as inherently inferior to the white race. This ideological thrust of classical anthropology found its culmination in Lucien Lévy-Bruhl's La Mentalité primitive (1922) and marked the development of proto-Negritude thought in the Caribbean, particularly Haiti, in the nineteenth century.
32. Elias, supra note 22, at 1.
33. I borrow the expression from J.-P. Sartre, ‘Orphée noire’, in L.-Sédar Senghor, Anthologie de la nouvelle poésie nègre et malgache de langue française (1948), who sees it in the passage from an unreflected to a reflected mode of experience.
34. Elias, supra note 22, at 4.
35. T. O. Elias, The Nigerian Legal System (1963), 12.
36. See the insightful discussion on the reification in mainstream property relations scholarship of the dichotomy between formal law and custom in connection to gender and property relations in Kenya by C. I. Nyamu, ‘Achieving Gender Equality in a Plural Legal Context: Custom and Women's Access to and Control of Land in Kenya’, (1998–9) Third World Legal Studies 21.
37. Elias, supra note 35, at 12, 14.
38. Ibid., at 13.
39. Ibid., at 14 (‘The problem here is largely one of finding out what the true indigenous rule is and whether and how far, when one has been discovered, it can be said to have originated or to have been adopted’). In many of his works (almost all with the exception of The Nature of African Customary Law), there is in Elias's narrative a sense of a self-appointed, almost messianic, role, catering to the needs of lawyers, judges, administrators, and all concerned by his endeavour and exhibiting a heroic urge to revamp the academic discipline of African customary law and rescue it from indifference, ineptitude, placidity, and bewilderment. For example, in the preface to the fourth edition of Nigerian Land Law and Custom, supra note 24, he candidly states: ‘The received English law on these subjects has been carefully blended with Nigerian law wherever necessary, the aim throughout being to present the living law of land tenure as it is practised and applied in Nigeria today. . . This edition should, accordingly, meet the new demands of the revised syllabuses of all the Faculties of Law in Nigeria, while the long-felt needs of the members of the Nigerian Bar should now be better served. The requirements of the administrator and the investor should also be largely met. In short, all those interested in comparative law, especially in the study of the inter-action between English law and indigenous African customary law in a dynamic society, should find this book a reliable and stimulating guide.’ While this is testimony to his staggering erudition and learning, it also exemplifies the attitude of certain pioneers of a legal discipline to make their task a ‘personal quest’ on a long journey towards a better tomorrow. On the ‘personal quest’ device in international legal scholarship, although in a different context, see D. Z. Cass, ‘Navigating the Newstream: Recent Critical Scholarship in International Law’, (1997) 65 Nordic Journal of International Law 341, at 365–9.
40. Elias, supra note 35, at 5–6.
41. Elias, supra note 22, at 5.
42. Ibid.
43. Ibid., at 17.
44. Ibid., at 6.
45. Ibid., at v. The expression ‘European law’ may appear to be a misnomer, for it was hardly disputed that ‘law’ was ‘European’. Nonetheless, it could be argued that this was deliberate, for the entire debate on whether African law was law turned on what differentiated ‘Africa’ from ‘Europe’.
46. Ibid., at 6.
47. See C. Mwalimu, The Nigerian Legal System, Volume 1: Public Law (2005), 121 (‘Elias was also one of the distinguished freedom fighters who used law, just as Sarbah had done in 1898 to advance the cause of freedom and independence for the new and emerging African state. . .’).
48. For a useful introduction to Césaire's poem and the context of its conception, composition, and publication, see M. Rosello, ‘Introduction’, in Aimé Césaire: ‘Notebook of a Return to My Native Land’, trans. and ed. M. Rosello, with A. Pritchard (1995), 9–68.
49. Ibid., at 125.
50. J. G. Vaillant, Black, French and African: A Life of Leopold Sedar Senghor (1990), 244.
51. L. Sédar Senghor, Liberté I: Négritude et humanisme (1964), 71–4.
52. R. H. King, Race, Culture, and the Intellectuals 1940–1970 (2004), 241.
53. E. Laclau, Emancipation(s) (1996), 42. For Laclau, the empty signifier stands for the universal, the impossible fullness of the community. It is a particular ‘which has divested itself of its particularity’ or ‘which overflows its particularity’ to stand for the universal. Ibid., at 22.
54. Elias, supra note 22, at 98.
55. Ibid., at 80.
56. Ibid., at 93.
57. Elias's main antagonist was Sir Henry Maine and the views on evolutionism he had expressed in his Ancient Law (1906).
58. K. M'Baye, ‘The African Conception of Law’, in International Encyclopedia of Comparative Law (1973), I, 148 ff.
59. Elias, supra note 22, at 25.
60. Ibid., at 26.
61. Ibid., at 92–3, also 160.
62. Ibid., at 29.
63. Ibid., at 36.
64. Elias's main examples of areas where African law and British law were in unison were the distinction between civil and criminal law (ibid., at 110–29), principles of liability for legal wrongs (criminal, contract, and tort) (ibid., at 130–61), concepts of ownership and possession (ibid., at 162–75), resort to legal fictions (ibid., at 176–86), modern and customary legislation (where British influence was palatable) (ibid., at 187–211), and the judicial process (ibid., at 212–72). For each item, he masterfully refuted all detractors of African customary law, demonstrating how their objections were all predicated on misconceptions, ignorance, and racial bias against African societies and the all-too-ready desire to assume that African law in general must, by the very fact of being African, be irreconcilably different from English and, broadly, European law.
65. Ibid., at 36.
66. Ibid., at 31.
67. Ibid., at 121–2 (‘we are not by any means suggesting that there is, therefore, no difference between the African and a more developed legal system like the English. . . It would be not only foolish but also absurd to ignore the obvious fact that the legal, no less than the other, arrangements of a society, are affected by their sociological context. . . such notions will vary as much, or as little, with the mores and the ethos of particular communities as with their historical and geographical conditions’).
69. References are numerous in his work on the different levels of development of African societies. See, for example, Elias, supra note 35, at 9 (‘Of course, the areas are not all at the same level of development and there are hierarchies of courts corresponding to the particular stage of advancement attained by the community concerned’).
70. Ibid., at 376.
71. A. Becker Lorca, ‘Alejandro Álvarez Situated: Subaltern Modernities and Modernisms that Subvert’, (2006) 19 LJIL 879, at 915.
72. For an illustration of this hybridity, see Elias, supra note 22, at 213 (‘We need not emphasize that this synthesis of the two English and African legal ideas is a curious amalgam partaking of the nature of neither pure common law arbitration nor customary law arbitrament’).
73. Ibid., at 37.
74. Ibid., at 44.
75. D. Kennedy, ‘Two Globalizations of Law and Legal Thought: 1850–1968’, (2003) 36 Suffolk University Law Review 631, at 661 (emphasis in original). Kennedy's hypothesis that ‘The ideology of The Social was (perhaps) not a reflection of national particularity, but an instrument in the “imagining” of presently non-existent national communities’, is not implausible for colonies, given the fact that they are stripped of their capacity to make a claim based on nationalistic consciousness, hence the paradox of defining (or imagining) the ‘social’ through ‘lack’.
76. Elias, supra note 22, at 53.
77. Ibid., at 73.
78. Ibid., at 55.
79. Ibid.
80. Ibid. See also ibid., at 131, 268.
81. Such a reading seems to be doing more justice to Elias's feat than the following comments, which do little more than confuse the reader because of a certain circularity in reasoning: ‘Rather, he combined the views or attributes of a future definition of African law to the fundamental elements that go in defining law in general in western societies. However, he specifically omitted certain factors, primarily because none of them would adequately describe the nature of African customary law.’ Mwalimu, supra note 47, at 125.
82. For a contrary view, see ibid., at 128–9 (‘Indeed Elias did not per se define customary law, but rather defined law in general from an African perspective to which we have subscribed and attributed the ingredients for a definition of African customary law.’)
83. Kéba M'Baye, a prominent African scholar as well as the first president of the Supreme Court of Senegal and a former judge of the International Court of Justice, has rather spoken of a ‘stratification’ of African law, African society having been transformed by contact with the monotheist religions and the influence of colonization, with the successive contributions being superimposed on one another without really becoming unified. See M'Baye, supra note 58, at 151.
84. One cannot help notice the enduring paradox in Elias's efforts to employ the formalist medium of the treatise or textbook to write about and advance his project of developing African customary law. If we readily concede that customary law is ‘living law’, which is the law in fact being observed by its subjects, it must also be the case that law is not directly available to outsiders. Surely the mere fact of writing about what the customary law in Africa is constitutes in some ways the creation of a new and somewhat artificial distillation of that body of law to make it ‘ascertainable’ and ‘known’. For the virtues of the legal textbook, see Elias, supra note 12, at 283.
85. Elias, supra note 35, at 7.
86. Ibid., at 5. See also ibid., at 7.
87. Elias, supra note 22, at 273.
88. Ibid., at 281
89. Ibid., at 282.
90. Ibid., at 278–9. See also ibid., at 280.
91. Ibid., at 292.
92. Ibid., at 274.
93. L. Sédar Senghor, Liberté III: Civilisation de l'universel (1977).
94. L. Sédar Senghor, ‘The Spirit of Civilization, or the Laws of African Negro Culture’, (June–November 1956) 8–10 Présence Africaine 51, at 52, and his comments during the Discussion Session on 20 September 1956, ibid., at 219.
95. A. Césaire, ‘Culture and Colonization’, (June–November 1956) 8–10 Présence Africaine 193, at 202.
96. Ibid., at 204.
97. C. Anta Diop, ‘The Cultural Contributions and Prospects of Africa’, (June–November 1956) 8–10 Présence Africaine 347, at 350–3. It is not clear, however, whether Diop was a historical particularist, who saw the future of Africa as separate from the rest of humanity, or a universalist who hoped for a historical and cultural convergence between Africa and Europe. On the ambivalence of his narrative, see M. Diouf and M. Mbodj, ‘The Shadow of Cheikh Anta Diop’, in V. Y. Mudimbe (ed.), The Surreptitious Speech: Présence Africaine and the Politics of Otherness 1947–1987 (1992), 118–35.
98. It is not entirely clear, for example, whether Elias attended the two congresses of Negro Writers and Artists, given that his work and ideas about the unity of African law were to be presented in Rome in 1959, or what to make of his contribution to a collection of essays (Legacies of Empire, supra note 16) presented in late May 1982 at the conference ‘Africa and the West: The Challenge of African Humanism’ in Columbus, Ohio, where the tenets of the Negritude movement were discussed. It was attended by Senghor, but it is unclear whether Elias participated at all or was merely solicited to contribute an additional essay ‘in areas of specialization that had not been fully represented in the conference sessions.’ See Bjornson and Mowoe, ‘Introduction’, ibid., at 6.
99. Elias, supra note 22, at 3.
100. The report, which was published in the Présence Africaine congress proceedings, is reproduced in A. Allott, Essays in African Law (1960), 55–71.
101. F. Fanon, ‘The Reciprocal Basis of National Cultures and the Struggles for Liberation’, (February–May 1959) Présence Africaine 89.
102. A. Irele, ‘Contemporary Thought in French Speaking Africa’, in Mowoe and Bjornson, supra note 16, at 144–6, 154–5.
103. T. W. Bennett, ‘Comparative Law and African Customary Law’, in M. Reimann and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (2006), 662.
104. R. David, ‘La Refonte du Code Civil dans les états africains’, (1962) 1 Annales Africaines 160, at 162.
105. David subsumed custom under civil, common, and socialist law, systems which he regarded as the world's main legal families. Only as an afterthought did he add an assorted group of exotic ‘other’ laws – Jewish, Hindu, Asian, and African. See R. David, Les grands systèmes de droit contemporains (1973), 571–602.
106. T. O. Elias, ‘The Impact of English Law upon Nigerian Customary Law’, reproduced in Elias, Law in a Developing Society, supra note 24, at 3, 83–4.
107. Elias, supra note 12, at 17.
108. Ibid., at 104.
109. Ibid., at 17.
110. Ibid., at 104.
111. Ibid., at 17.
112. Ibid., at 106.
113. See P. Nnaemeka-Agu, ‘The Contribution of Judge Elias to African Customary Law’, in Bello and Ajibola, supra note 10, at 518, 526; E. K. M. Yakpo, ‘The Public Policy Doctrine in African Interlocal Conflict of Laws’, in ibid., at 864–7.
114. Bennett, supra note 103, at 665.
115. See also J. Ngugi, ‘Re-examining the Role of Private Property in Market Democracies: Problematic Ideological Issues Raised by Land Registration’, (2004) 25 Michigan Journal of International Law 467 (arguing that certain sectors in Kenyan society, who refused to accept the full range of implications of land registration such as near-absolute powers of the individual registered owner, organized, invented, and mobilized customary norms to frustrate the complete operationalization of the new ‘formal’ regime of tenurial arrangements).
116. Elias, ‘Impact of English Law’, supra note 106, at 81.
117. Ibid., at 109.
118. Elias observed that this was already taking place in large areas of Africa where there had emerged broadly similar political and economic conditions and, therefore, similar rules of customary law, ‘which makes it possible to speak of the existence of a universal body of principles of African customary law that is not essentially dissimilar to the broad principles of European law.’ Elias, supra note 9, at 220.
119. M'Baye, although inclined to recognize the unity of African law as being bound up with the assertion of the Negro-African disposition towards the world, nonetheless recognized that this had often been raised to the level of a matter of doctrine and that ‘This attitude, although flattering to African pride, is not realistic; those who adopt it immediately realize this and do not hesitate to abandon it, turning firmly towards modernity’. M'Baye, supra note 58, at 155.
120. Elias, supra note 12, at 119.
121. Ibid., at 213, 222.
122. I usefully derive these notions from their borrowing from ideology critique scholarship and application to the work of Stelios Seferiades by Thomas Skouteris in developing the analytical sketch of ‘vocabularies of progress’ in international law, namely ‘discursive strategies with which arguments buttress their power over others and seek to distinguish themselves from their ideological opponents’. T. Skouteris, ‘The Vocabulary of Progress in Interwar International Law: An Intellectual Portrait of Stelios Seferiades’, (2005) 19 EJIL 823, at 824, 837–40. I argue that Elias's work can be seen as another scholarly endeavour shaping the face of ‘progress’ as a narrative straddling different ideological struggles and personal/professional projects, making the relationship between progress and African customary law central to the renewal of the discipline.
123. Kennedy, supra note 75, at 659.
124. Elias, supra note 12, at 241. Francescakis suggests the concept of ‘ordre public du développement’ as a way to assuage fears over the arbitrary application of the repugnancy doctrine, based on the idea that local rules that are detrimental to social development should be discounted. See P. Francescakis, ‘Problèmes de droit international privé de l'Afrique noire indépendante’, (1964-II) 112 RCADI 269, at 305. It is not entirely clear in what sense ‘social development’, a political policy goal, would be a more useful device and applied with a greater degree of certitude, or be purged of an ethnocentric bias. Both the social development and repugnancy doctrines, however, seem to share the same function of contributing towards the unification of the local legal systems and a unified society run, to paraphrase Senghor, on the principles of universal civilization (civilisation de type universel).
126. Elias, supra note 12, at 223–44.
127. Bennett, supra note 103, at 662–3.
128. Kennedy, supra note 75, at 646.
129. T. O. Elias, ‘The Commonwealth in Africa’, (1968) 31 Modern Law Review 284, at 301; Elias, ‘Impact of English Law’, supra note 106, at 106.
130. Elias, supra note 22, at 299.
131. Elias, ‘Impact of English Law’, supra note 106, at 110–11.
132. Ibid., at 108.
133. Elias, supra note 22, at 301, also 274.
134. Elias, ‘Impact of English Law’, supra note 106, at 108.
135. Ibid., at 111.
136. Ibid.
137. T. O. Elias, ‘Towards a Common Law in Nigeria’, in T. O. Elias (ed.), Law and Social Change in Nigeria (1972), 271.
138. T. O. Elias, ‘Judicial Process and Legal Development in Africa’, in Mowoe and Bjornson, supra note 16, at 208 (‘On the whole, it can be said that the application of the judicial technique of the English common law to our customary laws has often resulted in the remoulding of the traditional rules and concepts along lines of rational development to suit our economic and social characteristics’).
139. Elias, supra note 12, at 288.
140. Ibid., at 102–3, 130–1.
141. Ibid., at 287.
142. Ibid., at 9.
143. Ibid., at 289 (emphasis in original).
144. Bhabha explains the colonial presence in its enunciative act as ‘always ambivalent, split between its appearance as original and authoritative and its articulation as repetition and difference. It is a disjunction produced within the act of enunciation as a specifically colonial articulation of those two disproportionate sites of colonial discourse and power: the colonial scene as the invention of historicity, mastery, mimesis or as the ‘other scene’ of Entstellung, displacement, fantasy, psychic defence, and an ‘open’ textuality. Such a display of difference produces a mode of authority that is agonistic (rather than antagonistic)’, i.e. ‘within the terms of a negotiation (rather than negation) of oppositional and antagonistic elements.’ H. K. Bhabha, The Location of Culture (2004), 153.
145. Bhabha thus explains, ‘the discourse of mimicry is constructed around an ambivalence; in order to be effective, mimicry must continually produce its slippage, its excess, its difference. The authority of that mode of colonial discourse that I have called mimicry is therefore stricken by an indeterminacy: mimicry emerges as the representation of a difference that is itself a process of disavowal. Mimicry is thus the sign of a double articulation; a complex strategy of reform, regulation and discipline, which “appropriates” the Other as it visualizes power. Mimicry is also the sign of the inappropriate, however, a difference or recalcitrance which coheres the dominant strategic function of colonial power, intensifies surveillance, and poses an immanent threat to both “normalized” knowledges and disciplinary powers.’ Ibid., at 122–3.
146. Ibid., at 129–30 (emphasis in original).
147. Ibid., at 172.
148. Ibid.
149. Ibid., at 131.
150. Ibid., at 162 (emphasis in original).
151. David Kennedy reads M'Baye, supra note 58, at 155–6 (‘The African continent is a world of contradictions: subjected to a variety of frequently contradictory forces, it is ever hesitating between them’), as assisting local intellectuals and elites in making such a ‘choice’ between assimilation and exceptionalism, noting that ‘a postcolonial African law will involve each country choosing the legal models and rules, whether Western or African, best suited to achieve the national priorities of development and modernization in its particular circumstances.’ Kennedy, supra note 4, at 619–20, n. 104. My reading of Elias's scholarship as signalling a turn to hybridity of an African law always already reflecting the double heritage of African humanism indicates otherwise.
152. Belleau, supra note 18.
153. Kennedy cites the work of Lama Abu Odeh on Islamic legal culture and ‘honour killings’ as eschewing the alternatives of exotism and assimilation and embracing hybridity (‘She does so by insisting on the presence within the subjective identity of those brought up there of both traditional and modern elements, of assimilation and exotism, confounding efforts to categorize Islam from the centre as either one or the other’). Kennedy, supra note 4, at 622.
154. Two of the ‘structural’ reforms proposed by Elias were the reorganization of courts to avoid the parallelism of jurisdiction as between those administering English law or some modified versions of it and those administering customary or other traditional law, and the simplification of English law so as to make easy the work of integrating it with customary law and social patterns of the local communities. See Elias, supra note 12, at 288.
155. Elias, Law in a Developing Society, supra note 24, at 139.
156. Elias, ‘Towards a Common Law in Nigeria’, supra note 137, at 266–7.
157. Elias, Law in a Developing Society, supra note 24, at 5.
158. Elias, supra note 12, at 276–7.
159. Ibid., at 299. See also Elias, Law in a Developing Society, supra note 24, at 141. Elias was instrumental in establishing the Nigerian Institute of Advanced Legal Studies, with a robust research agenda through which he was to contribute further to the development of customary law in Nigeria. See Nnaemeka-Agu, supra note 113, at 528–9.
160. Elias, supra note 12, at 290.
161. Elias, Law in a Developing Society, supra note 24, at 140.
163. Elias's first-hand account of the judicial delineation of analysis of thought and reasoning underlying the articulation and objectivity of principles as well as practice in the ‘Newer Commonwealth’ (Commonwealth countries of Africa, the Caribbean, and Asia) of many strands in African law dealt with by judges trained in English law and usage is distilled in a collection of lectures and papers he gave between 1975 and 1985. See T. O. Elias, Judicial Process in the Newer Commonwealth (1990).
165. Elias, supra note 12, at 280.
166. Kennedy, supra note 75, at 675.
167. Elias, Law in a Developing Society, supra note 24, at 141.
168. Elias, supra note 138, at 211.
