Legal pluralism in Africa: The implications of state recognition of customary laws illustrated from the field of land law

• Jurisdiction: South Africa
• Citation: 2011 Acta Juridica 35
• Published date: 15 August 2019
• Date: 15 August 2019
• Pages: 35-58
• Author: Gordon Woodman

Legal pluralism in Africa: The implications

of state recognition of customary laws

illustrated from the f‌ield of land law

GORDON WOODMAN*

Living customary laws, generally observed by the populations of African states,

are derived from customary laws observed before the colonial period, but

developed and adapted to current circumstances. The laws observed in the

institutions of the modern state are based on the legal institutions and norms of

the colonial powers, but give some ‘recognition’ to the customary laws. This

policy of recognition is often accepted today as jurisprudentially sound and

socially realistic, but it poses the following challenges to the administrators of

state law in the current circumstances of legal pluralism in Africa. The

ascertainment of the content of the various customary laws entails diff‌iculties

which neither codif‌ication nor restatements of customary law remove. The

forms of the customary laws are such that large parts cannot be applied in state

institutions without radical revision. Recognition is required on policy

grounds to be withheld from some portions of customary laws, and this

distorts the remainder. Finally, choice of law rules need to be developed to

determine when a customary law, or received law, is to be applied. These

diff‌iculties have implications for policies on the basic designs of legal pluralism

in Africa.

I INTRODUCTION

The object of this essay is to contribute to the understanding of legal

pluralism, and so to the understanding of some of the topics on which this

volume focuses.

1

These topics are the challenges which legal pluralism

presents to social administration, especially in relation to land law in

Africa. I argue here that the ways in which we explain and analyse this law

* Emeritus Professor of Comparative Law at the University of Birmingham, UK.

1

Much of this paper is about issues illuminated for the Republic of South Africa by the

recent paper by TW Bennett ‘Re-introducing African customary law to the South African legal

system’ (2009) 57 Am J Comp L 1. That paper is on many points more certain and far more

precise with respect to law in South Africa than this paper, which seeks to range widely over

African states and so is frequently expressed in generalities. I believe that there are no signif‌icant

areas of divergence between our conclusions. For further discussion of the SouthAfrican case of

legal pluralism, see eg: C Himonga & C Bosch ‘The application of customary law under the

Constitution of South Africa’ (2000) 117 SALJ 306; G van Niekerk ‘State initiatives to

incorporate non-state laws into the off‌icial legal order: A denial of legal pluralism?’(2001) 34

The Comparative and International LJ of Southern Africa 349; J C Bekker, C Rautenbach &

N M Goolam (eds) Introduction to Legal Pluralism in South Africa (2006); C Rautenbach ‘Deep

legal pluralism in SouthAfrica: Judicial accommodation of non-state law in South Africa’ (2010)

60 J of Legal Pluralism 143.

35

2011 Acta Juridica 35

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today are unrealistic. Current understandings of the legally plural land

laws of Africa are still structured by a scheme of thought developed in

Europe under political inf‌luences which were especially powerful in a

certain period of history, and which was transferred toAfrica to meet the

requirements of colonial regimes. These understandings obstruct effective

policy decision-making today.

I adopt the perspective which is commonly taken in the literature, that

of the social administrator, or the off‌icial, meaning all those who take part

in public decision-making in any form and in any way. This contribution

does not aim to include every aspect of the understanding of the

socio-legal phenomenon of legal pluralism. There may be social scientists

who are interested solely in understanding how persons without any

off‌icial role think and act within social relations, and are entirely divorced

from questions about the government of society. There is room for

scepticism when, for example, anthropologists make such claims, given

the extent to which they have been used by colonial and other govern-

ments,

2

but in any case we need not make them. The current discussion is

concerned with studies of law and government, and so concerns the

practical implications of legal pluralism and the politics of the possible.

This does not mean that it necessarily aims to adopt or propound specif‌ic

policies to be followed by off‌icials, but only that the perspective is set

generally by a concern with what is done or may be done by off‌icials. It

should be added that the study of legal pluralism constantly suggests that

off‌icials are less inf‌luential than may be supposed and than they themselves

often claim.

For the purpose of the present discussion the expression ‘legal plural-

ism’ refers to the class of situations in which a population observes more than one

law.

The term a population is used here to refer to any group, large or small,

of people. The group is identif‌ied by the characteristic that all members

observe, to a certain extent and on some occasions, two or more distinct

laws. They may share other characteristics, such as a common ancestry, or

allegiance to a common leadership, but this is not required.

The discussion is concerned with laws which are social facts by virtue

of their observance. We say that a law ‘exists’ if it is to a certain extent

observed (although it need not be invariably observed). If the discussion is

to lead to conclusions of practical value it must be concerned with such

empirically verif‌iable facts. Ideological constructions claiming that laws

can ‘exist’ without such empirical foundations can be, and have been

misleading in this f‌ield.

Alternatively, the empirical fact of enforcement might seem to express

2

See eg U Mattei & L Nader Plunder: When the Rule of Law is Illegal (2008).

36 PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA

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