In the early 1960's, when the winds of change began to blow freedom into southern Africa, the causes of Africa's poverty seemed obvious. Since the turn of the century, colonial regimes had systematically disinherited and disenfranchised the black majority. As a result, while the region enjoyed a wealth of natural resources and, in a number of areas, developed industries and infrastructure, the majority of the population lived at the edge of subsistence.

By the mid-1980's, only South Africa and Namibia still labored under minority or alien rule. Yet even where countries had shed colonialism twenty years earlier, most people endured poverty and powerlessness. Their leaders had come into government promising a radical redistribution of power and wealth. That did not occur. Instead, the region's economies remained largely stagnant and dependent on unstable foreign markets, and the distribution of income and political power remained highly skewed. Poverty and inequality continued because of the failure to use the legal order—that is, the laws and regulations and the behavior of the relevant implementing and law-making institutions—to transform economic and social relationships.

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.

On 18 April 1980, a new black government took power in Zimbabwe. It confronted the widest gap in the world between the very poor and the very rich. Some 6000 white farmers owned farms with an average size of 6000 acres, comprising the best half of the arable land in the country. 800,000 African farmers scratched a living out of the sand and rocks that constituted the other half. Seventy-five per cent of the children of wage workers on the white farms suffered from malnutrition: their parents had a minimum monthly wage of $20 (Rhodesian). Eighty-five per cent of those children had never received a medical examination or visited a clinic. The dismal figures roll on and on.

Legislation in the former British colonial territories exhibited a pair of paradoxes. First, it spoke in legalese, a patois that only judges and lawyers can read easily. Many laws concerning development, however, addressed ordinary citizens. Second, drafters invented and used a specialised style to reduce official and judicial discretion by making legislation more precise, but this frequently endowed officials with discretion as broad as the unbroken sky. In Africa, the uses of legalese seemed to war with the purposes for which it was developed.

The manifold torments of the Third World press themselves upon all of us for solution. Poverty, disease, oppression, early death: this is the fate of most of mankind. Today all the world plucks at the sleeves of the academy, asking, What do you know? What are you good for?1 Any answer must include a statement of the discipline's response to the troubles that beset the less-developed countries. How lawyers respond ought to define the domain of the study of law and development.

As Mark Twain once remarked about the weather, everyone talks about law and development, but nobody does much about it. How does law “set off, monitor, or otherwise regulate the fact or pace of social change?” (Friedman, 1969). Atomistic studies relating specific norms of law to specific sorts of social change are plentiful. Holistic studies purporting to explicate general propositions relating rules and behavior can hardly be found. The few that do exist do hardly more than assure us, most sincerely, that yes, there really is a relationship between law and social change.

What is needed is a general model relating law and social change. Here, we discuss (1) the definition of the problem; (2) its parameters; (3) an heuristic model; and (4) a variety of “middle-level” hypotheses that can be suggested. The specific focus of this discussion is on Africa.

Lawrence Friedman (1969: 29) has written that “many basic questions of the relationship of law to social change and to cultural development have been completely neglected. … How does law brighten or darken the road to political… stability. … What happens when laws are borrowed from more advanced countries?” This paper examines the reception of English administrative law in Anglophonic Africa in an effort to discover some general propositions to answer Professor Friedman's questions.

From the evidence of the minute paper which preceded the drafting of the first African reception statute, it may be asserted that the intendment of the Colonial Office officials was:

(1) that the limiting date in the statute was to apply as well to the common law and the doctrines of equity as to the statutes of general application;

(2) that the phrase “Imperial Laws”, refers as well to the common law and doctrines of equity as to the statutes of general application, so that the West African courts were granted a plenitude of power to determine the applicability to local conditions of judge-made law as well as legislation.

It is difficult, however, to determine the intendent of the phrase, “statutes of general application”, in the premises.

What follows purports to give the opinions of three judges of the highest court of appeal in Newstate, Africa. The title is taken from a pregnant phrase of O. W. Holmes, an American writer on jurisprudence. He held that the result of a case depended upon ‘the inarticulate major premiss’ of the judge (or the unstated assumption which most influenced his judgement), at least in matters of first impression—i.e. cases in which the judges must determine for the first time what is the operative rule (‘norm’) of law. He urged this proposition in sharp opposition to the popular notion that a judge merely applied to the ascertained facts clear rules of law, which he found in earlier cases or in statutes.