Law out of Context: A Comment on the Creation of Traditional Law Discussion

Abstract

The ways in which local normative systems and processes of decision-making in Third World states have been interpreted and transformed by colonial and postcolonial lawyers, administrators and social scientists have received much scholarly attention. During the past 15 years in particular, the “creation of traditional law” in Africa and the “myth of adapt” in Indonesia have became a special topic in the writing of legal anthropologists, largely influenced by scholars such as Asad arid Said. In recent years analyses have increasingly focussed upon the economic and political forces and purposes behind the transformations and on their consequences rather than on their underlying ethnocentric conceptual biases.In his paper “Traditionalism and Traditional Law” in this volume Peter Fitzpatrick presents an elegant, sophisticated and critical account of the main strands of analysis in the discussions about the creation of customary or traditional law. In my comment upon his views and those of other authors which he discusses I am not so much concerned with a critique; I would rather like to expand and amend these views by enlarging the analytical framework in which they should be seen. My concern is with the selectivity of these analyses. Firstly, I think that they usually tend togeneralizefrom a limited (set of) context(s) in which the creation of customary law has been observed, such as adjudication in colonial courts or academic writing and teaching in colonial law.