African Legal Systems

Abstract

‘African legal systems’ means the bodies of interrelated legal norms and accompanying institutions of norm-creation, norm-finding, and norm-enforcement which have a social existence in Africa. Legal norms are social norms enforced by a relatively strong degree of coercion. Non-state African legal systems are customary legal systems, i.e., legal systems which exist by virtue of the social observance of their norms. Religious legal systems are customary legal systems derived from systems of religious belief. Within African customary systems legal relations are between communities rather than individuals. A customary law community often has an individual leader, such as a ‘head of family’ or a ‘chief,’ who is generally subject to the rule of customary law. Customary legal disputing processes tend to be directed to the achievement of social peace rather than the determination of legal rights, involving mediation and negotiation rather than adjudication. African state legal systems were formed by the colonial powers, whose own state laws were received (i.e., imported) and became African legal systems. Customary and religious legal systems continued to be socially observed, so that the receptions gave rise to situations of legal pluralism. State legal systems also gave recognition to customary and religious legal systems, that is, incorporated some of their institutions and some of their norms into state legal systems (institutional and normative recognition, respectively), and thus produced pluralism within state legal systems. Recognition entailed the creation of ‘lawyers, customary law,’ consisting of institutions and norms which differed markedly from those of ‘folk,’ ‘indigenous,’ or ‘practiced customary law.’ Since the initial reception, state public law, those branches of the state legal system which regulate government, have generally been directed towards strengthening the state. After Independence there were periods of instability, but more recently there have been trends towards constitutionalism, more democracy and accountability in government, emphasis on environmental protection, and judicially enforceable human rights. There have been attempts at nation-building to counteract the dangers of interethnic and interreligious conflict, and in pursuance of policies of development through law. Received private law has been continuously changing. Some factors tend to cause divergence between this law and the laws of the European countries of origin, but other factors tend to have the effect that the developments in both are often identical. Received private law is more widely observed than formerly, but most people still choose to act under customary law in many circumstances. Systems of practised customary law have changed since colonization. Thus the individual has gained more autonomy, and legal transactions are more often governed by market forces. New bodies of customary law have been formed, especially in the urban areas. Lawyers' customary law has developed through its embodiment in authoritative pronouncements such as judicial decisions, codes, and restatements, but this may also have reduced its responsiveness to social change. Most research into African legal systems will in future be conducted in Africa by African scholars, although the more fundamental theoretical issues, such as those concerned with the concept of law, will continue to be investigated internationally.