Law and the Study of Sub-Saharan Africa

Abstract

In all societies, law together with social norms act to maintain the social order by creating rules and expectations about human interactions and exchanges. Changes, however, do occur. Debates about the content and meaning of social norms and about the law, legal statuses, and legal rights and expectations in African societies predated colonialism, were accelerated by the colonial encounter, and persist to this day. The long history of human contact and social and cultural change on the continent introduced new ideas and practices for resolving disputes both between members of different groups and within groups, often yielding forms of legal pluralism. Pluralistic legal thought, institutions, and practices were shaped by the spread of Islam in Africa from the 8th century and the arrival Europeans from the 15th century. Recent research on legal pluralism underscores the need to focus not only on the establishment of formal legal institutions, but also on how litigants used the multiple arenas created by overlapping systems of dispute settlement. The most useful way to think about legal pluralism is as a form of encounter between dynamic, local processes of change in indigenous societies that predated colonial conquest and continued after it and dynamic and changing forms of European colonialism. Identifying African norms, enshrined as custom, and producing customary law were essential strategies of colonial rule based on legal traditions associated with the establishment of protectorates, which separated, in principle, external and internal sovereignties. African customary law constituted a foundation of internal sovereignties associated with various forms of indirect rule. In all cases, however, African customary law was subject to colonial interventions when particular customs were considered detrimental to European assumptions about “civilization” and good governance. Metropolitan legal traditions also influenced the practice of law in colonial societies. It is important to distinguish common law as applied in colonies influenced by British practice and the civil law tradition applied in those influenced by legal systems of continental European colonial powers. South Africa forms an anomaly in that its legal system developed from a Roman-Dutch legal inheritance, a superimposed British colonial practice, and constructed African customs. Although North Africa experienced many of the same pressures from colonialism and decolonization as sub-Saharan Africa, this article does not engage fully with this region. We recognize that this is a significant gap that has colonial and postcolonial geopolitical roots and look forward to future research that better integrates these subregions. The end of colonialism accelerated the processes of legal change as independent nations both incorporated colonial law into their independent judiciaries and revised colonial-era laws to reflect changing regional and international ideas regarding human rights. Significant legal debates persist in many parts of Africa regarding gender equality, Muslim family law, criminal law, and human rights enshrined in international law.