Customary Law in Theory
T W
Bennett
A
Sourcebook of African Customary Law for Southern Africa
T W Bennett
assisted
by
N
Juta & Co, Ltd
1991
Reprint 1995
CHAPTER 1
Customary Law in Theory
I CUSTOMARY LAW AND POSITIVISM
Customary law is the law of small-scale communities.
The people living in these communities take it for granted because it is part
of their everyday experience, but outsiders are by definition excluded. They
must be told about customary law or they must read about it; in either case
their information is once removed from the source. This means that few, if any,
texts on customary law can claim to be direct, personal accounts of community
practice. They are the work of many informants, each of whom brings to bear on
the subject his or her own preconceptions and prejudices. The ultimate, and the
most distinctive imprint is that of the, final author.
A text that aims to be strictly legal would overlook
the contingencies that shaped the product. Legal practitioners need a
systematic code of rules, one that is clear and consistent. Once this has been
written, there is little more to be said, even though such an account might
diverge sharply from the social realities it claims to describe. More
discerning lawyers, especially those with a more tolerant attitude to the
social sciences, have criticized the obvious shortcomings of this approach, and
in general today more is expected of a work on customary law. Answers must be
provided to a range of questions that formerly were not considered to be within
the province of lawyers. Why did a particular rule develop in the way that it
did? How does customary law relate to the social, political and economic changes
occurring in a particular society? How should customary law be interpreted to
allow expression of individual rights and freedoms?
A great number of the existing records of customary law
were written during the time of colonial rule and the first impressions of the
colonial authors were not auspicious. Many institutions fundamental to African
life-bridewealth and polygyny being the most notorious-were condemned out of
hand. Not only content but also form was censured. The amorphousness and lack
of system so characteristic of customary law made it difficult for lawyers to
identify norms which they could confidently call ‘law’. None of this of course
reflected well on African people. In Re
‘Some tribes are so low
in the scale of social organization that their usages and conceptions of rights
and duties are not to be reconciled with the institutions or the legal ideas of
civilized society.’
However
low the esteem in which indigenous law was held, it could not be indefinitely
ignored. The colonial governments were in no position to impose their own laws
on an uncomprehending population; they had neither the finance nor the manpower
necessary to force obedience and they were wary of provoking rebellion.[2] Some
compromise had to be made, and so it was decided to recognize certain of the
less offensive areas of customary law. This pragmatic approach, later
celebrated as an enlightened policy of indirect rule,[3] led to the
creation of the complex code of rules which is now known as ‘customary’ (or
‘indigenous’) law.
At the time that this code was being compiled, during
the late nineteenth and early twentieth centuries, western legal thought was
heavily influenced by positivism, a philosophy which has had a long-lasting and
generally a malign effect on customary law. Positivism contributed nothing to
the understanding of customary law; but it provided a series of assumptions
about the relationship of law and society which have been responsible for the
distinctively ‘legalistic’ attitude that has characterized much subsequent work
on the subject.
[1] SEIDMAN THE STATE,
LAW AND DEVELOPMENT 31-4
The colonial decision to
impose English law on
Max
Weber argued that the principal capitalist legal requirement was
predictability.1 Entrepreneurs must so far as possible reduce their
risk. Lawyers can advise their business clients only if they can calculate how
the state will act towards their clients’ activities. Predictability, lawyers
believed, required that the legal order minimize official discretion, and that
“independent” courts decide, as it were, like computers, whether state power
should be applied in specific cases. Predictability was impossible if the judge
might decide the case according to his subjective ethical notions. Weber said
that predictability in law demanded “logical formal rationality”, that is,
decisions in particular cases that relied exclusively for their justification
upon materials drawn from the legal order itself, derived by a specialized
deductive mode of legal thought. Positivism therefore purported to limit the
courts’ function to law-finding, not law-making. This system implies a model of
the legal order that has been denoted as “legalism”. That model defines the law
as a “logically consistent set of rules constructed in a specialized fashion”,
which are the exclusive rules for settling disputes. There must be a “clear
differentiation of law from other sources of normative ordering. Law must
become both autonomous and supreme”.2 A system of law enforced
through courts appears autonomous par excellence.
The
school of jurisprudence law called analytical positivism met these
requirements. John Austin, its nineteenth-century author,
announced a single, thundering proposition. All law,he said, was the command of
the sovereign.3 His system limited the function of the lawyer to
determining not what the law ought to be, but what it is. It confined the study
of law to examining the universe of legal rules, to harmonizing and elucidating
them. As an empirically grounded hypothesis,
The Colonial Office
imposed English law on
An attractive
investment climate is a necessary condition to capitalist investment. The
government can, as a minimum, supply law and order, and a judicial system to
protect property and enforce contracts. The colonial powers everywhere imposed
a centralized bureaucracy and courts upon their dependent territories. The mere
existence of courts and law became a hallmark of “development”.
English law
apparently came to
Analytical
positivism, although powerfully challenged, remained the dominant jurisprudence
for practising lawyers in independent
Notes
l. D M Trukek 1972
2. Trubek op cit 736.
3. J
At a time that was critical for its formulation and development,
customary law was being applied by people who had a peculiarly narrow view of
law. A central axiom of positivism was that lawyers should concern themselves
exclusively with the study of law. In consequence a precise definition of law
was essential to demarcate the appropriate area of study. And here
There were other, more obviously political reasons for
this lack of interest. The business of the colonial administration was not so
much with the welfare of the African people as with the maintenance of a
submissive population. The law-makers were preoccupied with the public-law
enactments designed to secure this obedience and not with customary law which,
as a body of private law intended to facilitate domestic interaction, was of
little concern to the policy makers.[5]
Later, twentieth-century positivists made special
provision for systems of customary law in their definitions of law.[6] Hart has been
the most influential in this regard.[7] By discarding
the usual unitary definition of law, and by focusing on the differences that
mark simple and developed societies,[8] he could
accept the possibility of there being ‘law’ in small-scale, acephalous
societies. To explain the dissimilarities between their law and that of complex
societies, he posited a dual system of rules. Primary rules constitute the
normative order (i.e. standards of be saviour) in simple societies; secondary
rules, which emerge only later, specify the manner in which the primary rules
can be ascertained, varied and applied. Hart acknowledged that simple societies
could function without secondary rules but, he said, the status of the rules
would be uncertain, there would be difficulty in changing them, and they would
be inefficiently administered.[9]
The sharp distinction that western jurisprudence
requires between law and religion, ethics, custom and morals is arguably a
reflex of professionalism.[10]
Because occupations in simple societies are relatively unspecialized,
there is no group of people dedicated solely to the practice and study of law;
and without a Legal profession law is differentiated from other normative
orders only partially, if at all.[11]
The normative order of simple societies is readily
identifiable with the ‘custom’ of common law, although in strictly legal terms
custom is a matter of fact. It is behaviour, what people actually do. Law is a
body of norms, what people ought to do. By an enigmatic process that has never
been fully understood the ‘is’ of custom may become the ‘ought’ of law.[12]
In the practice of the courts this involves the calling of witnesses and a
determination that the custom in question was certain, reasonable, uniform, and
well established.[13]
Custom therefore is conceived as a primitive or basic norm that a litigant may
ask to have co-opted to the legal code for the purposes of a particular case.[14]
From the colonial government’s point of view the
question whether or not customary law deserved the appellation ‘law’ was
insignificant compared with the question whether the social practices of the
people should be recognized. Accordingly, once the content of the rules had
been approved, their form (as law or non-law) became irrelevant. And today,
although at a theoretical level the debate about the legal nature of customary
law continues, it has lost its heat. A typical modern argument would concede that
law is a product peculiar to a certain type of socio-political structure, the
state; thus it would be wrong to say that African societies have the same or an
equivalent institution because they are (or were) not state societies.[15]
Yet even this type of argument is felt to be academic and speculative. It lacks
the topicality of other, more socially relevant issues,[16]
such as the co-existence of different normative orders (customary and state
law), how they interact, and whether customary institutions (notably
patriarchy) are tolerable in modern states.
In jurisprudence too the question of the legal nature of
customary law has become state, and so for all intents and purposes the problem
of definition has been disregarded. Most writers, such as Hamnett below, are
more interested in describing the characteristics of customary law than
defining it.
[2] HAMNETT CHIEFTAINSHIP AND
LEGITIMACY 9-16
Even the term “customary systems” raises an initial problem, at least
in so far as the word “system” implies a rigorous, logically ordered and
complete array of juristic propositions and normative rules. In the ideal legal
“system”, at least, all norms are mutually consistent in themselves and in their
implications; there are no gaps in it - no juristic vacuum; and each item can
be derived from some other item (a concept or a rule) of higher order.
Customary law falls short of all these requirements. The concepts it employs
are not rigorously defined; logical ordering exists more by chance than on
principles of structure; the scope for deduction is very limited; it is far
from being logically complete; and its rules are not always mutually
consistent.1... Perhaps more consonantly with modern usage it could
be called an open set. But to say that customary law is a set of normative
rules is trivial, indeed almost truistic. It fails to suggest the specific
features that distinguish customary law from any other unsystematic set of
norms. The special qualities of customary law cannot be purely negative; no
satisfactory conception of customary law can be arrived at simply by taking a
systematic legal order and eliminating from it in turn its consistency, its
conceptual precision, its completeness and its logic and supposing that
the residue constitutes customary law.
The word “customary” itself suggests a more
positive approach. Although the term “customary” has misleading overtones for
English-speaking lawyers, it has the virtue of bringing out a central characteristic
of certain forms of legal order. It deflects attention away from those who
teach or interpret the law, and directs it instead towards those who live it
and use it. Customary law emerges from what people do, or-more accurately from
what people believe they ought to do, rather than from what a class of legal
specialists consider they should do or believe. This is not to deny that, in
any society, some people are credited with a more acute sensitivity to such
obligations than others, or even that the incumbents of certain statuses
(defined often by age or seniority) have a prima facie claim to possess
this greater sensitivity. Differences in human qualities are universally
recognised, and in hierarchically ordered societies the senior grades will be assumed
to be more, rather than less, generously endowed with wisdom, understanding and
insight than other people. Yet the ultimate test is not, “what does this judge
say?” but rather “what do the participants in the law regard as the
rights and duties that apply to them?” The real task of the customary jurist is
to answer this last question, not to apply deductive or analytic reasoning to a
set of professionally formulated legal concepts.
Again, the word “customary” itself points to this
conclusion, suggesting as it does a law that emerges, not from jurisprudential
interpretation, but from the “customs” in terms of which the actors themselves
determine their actions. However, there are serious dangers in relying too much
on the concept of custom - whether in its technical or in its everyday sense -
for an understanding of customary law. The first danger arises from the fact
that, at: least in the English doctrine, “custom”, if it is to have the force
of law, must have a series of attributes not all of which have any formal
application to the kind of law now under discussion.... Customary law is
pre-eminently embodied in a set of concrete principles, the detailed
application of which to particular cases is flexible and subject to change The
principle is unchanging, no doubt, but it is not always an easy matter to
determine when any given norm or rule is an authentic principle or is nothing
more than the practical application of a general norm to a particular case. If,
therefore, custom is to be described as stable or immutable or unchanging, this
permanency must be attributed only to the most general norms and not to the
subordinate or contingent norms that emerge when a given principle is applied
in a concrete case. These subordinate norms can, should and do change, in
response to varying social situations. Moreover, when a general rule is applied
in a concrete case, the law is not, as it is in systems that recognise the
binding precedent, thereby made more specific or narrow. When the case is
concluded, the law returns, as it were, from its brief excursion into detail
and reverts to its normal condition of generality.
A further stipulation found in modern systems of law is that custom
must be observed as of right. This requirement is different in kind from the other
rules, and is in principle fully applicable to customary law, indeed it is
crucial to any analysis. Besides the misunderstandings to which the technical
lawyer is liable.... there is a further danger of an opposite kind, namely that
custom may be interpreted to mean no more than practice. If law is to be
looked for not in those who expound it as professionals but in those who live
it and use it, it could be supposed that it can be found simply by looking at
what people do - law becomes simply a function of practice. No misunderstanding
could be more complete. To make practice the formal source of law in the
customary field is to be untrue to the facts, where people recognise in
normative law a moral authority, a legitimacy, that they do not accord to practice
or usage as a whole. No approach to customary law that fails to take this
indigenous recognition into account can ever be satisfactory. The certainty of
this distinction is not affected by the difficulty of drawing a precise line of
demarcation. People may not be sure whether certain intermediate norms are
authoritative or not, but they may still be clear that X is in a real sense
“law” while Y is definitely “not law”. This is all that is necessary in order
to make the point. Moreover, norms can never be equated with practice since so
much of practice is contrary to the norms. Customary law does not say that a
man should not steal his neighbour’s chickens more than occasionally, or graze
his cattle on another man’s field more than anybody else does. It says that
these things may not be done at all. For these reasons, the test of observance
as a right, if interpreted as an affirmation of the authoritative and
regulatory character of normative rules, is a critical feature of customary as
of any other law. Another way of putting this would perhaps be to say that
practice is not, and cannot be, the formal source of customary law. It
remains, of course its material source, in that customary law is
materially abstracted or derived from practice, rather than by a series of
logical operations upon a legal formula or proposition. It is not just that the
original rule of common 1aw was derived from practice, but was then made
the object of jurisprudential operations in the course of its later
development. In customary law, not only the original but also the derived norms
are related to those who participate to the actors in the social
situation - and not only to a professional body of specialised teachers and
judges.
The phrase
“actors in the social situation” points to the last formal characteristic of
customary law to be discussed: its social origin and character. This might seem
an obvious feature of all law, and hardly worth insisting upon. However, if the
ultimate test of customary law is not “what does the judge say?” but “what do
the participants regard as the rule?” the question arises of the eccentric
participant or actor who regards as a rule some private and personal
predilection of his own. If customary law derives from practices that are
endowed with authority by the practitioners, how is it possible to deal
(analytically) with idiosyncratic practitioners? It is to close this gap that
it becomes necessary to stress the social character of customary law. The
argument here is not that a total “society” - whatever that may be - defines
one homogeneous law by derivation from universally sanctioned practice; though
in fact this meets the case in certain instances, it would be much too rigorous
an assumption for most non-literate societies. To say that law is social and
not individual is not to imply that between the individual and the total
society to which he belongs there are no intermediate social groups whose
corporate and semi-independent character validates their own local law. Clans,
sub-clans, lineages and even individual families can constitute social groups
in this sense, in such a way that the norms to which they attribute authority
are socially and not merely individually legitimised. The exact nature of the
groups that possess this, so to speak, “public” character will vary from
society to society. Moreover, the domain within which this public character
exists will vary according to the kind of rule or subject-matter involved.
Thus, as, in Sotho law, questions of inheritance may be determinable by the
immediate agnatic kinsmen of the deceased, while questions of succession to
office may be determined by some more widely defined group, and questions of
land-tenure may be referred to some other authority again. So variations may be
expected not only from society to society, but also, within any one society,
from one type of case or subject-matter to another. The essential fact is that
the law is always socially defined. In no known society is it open to each
individual to find his own law. The legitimacy, the imputed authority with
which customary law is clothed, is not transmitted by a legislative assembly or
a specialist judge, but neither is it the product of an individual’s
idiosyncrasy.
The argument so
far has raised a number of substantive and not merely definitional issues and
suggests a formula that omits purely contingent and accidental features and yet
is’, not entirely trivial. Customary law can be regarded as a set of norms
which the actors in a social situation abstract from practice and which they
invest with binding authority. The positive content of this definition may
be taken as fourfold: the relation of norms to practice rather than to
“lawyers’ reasoning”; the dominant role of the actors or participants in
the determination of law; the authoritative or legitimate, rather than
merely factual or utilitarian, character of the emergent rules; and the
essentially social nature of their validation and status....
‘Nor does the formulation suggested above ignore the
fact that some people may be regarded as more authoritative exponents of the
law than others. The incumbents of certain positions, typically the hereditary
position of chief, may be especially privileged in this regard.... [T]oo much
can be made of the “essentially democratic” character of traditional monarchy.
To stress the social and in a certain sense “popular” character of customary
law, in chiefly societies as in others, is certainly to recall something of
what is implied in the American term “folk-ways”; but this does not exclude the
indubitable truth, neatly expressed by Professor Goebel, that a folk-way may be
the way of the folk in power.... A hereditary chieftainship develops its own
interests as an ascriptive status-group, which are analytically (and can become
empirically) separate from those of the community. Where chieftainship is itself
a central political value in the society, the ambiguities of its domination
grow to create a broad area of “indeterminacy”, and it is precisely here that
“force” is mediated to “law”. . . .
An empirical feature of most customary law is that it
is unwritten.2 This is more than a simple descriptive fact, for it
has implications for the kind of law that emerges. When law is written,
it is possible to isolate it from its social context and to seal it off in
books; jurisprudential analysis can then begin. The fact that customary law is
unwritten is one reason why it remains both general and concrete. It remains general
because its detailed applications in different places are not made known to
all, only the principle being universally remembered, and concrete because
detailed logical analysis is impracticable when the analyst has got no accurate
and objective reports on which to rely. The doctrine of precedent is hard to
set up when there is no written record of earlier decisions.3 This
allows customary norms to be flexible and adaptable, and to function, in
Plucknett’s words, as “instruments for legal change rather than the fossilised
remnants of a dead past”.4 But it is not just a matter of saying
that pre-literate societies lack certain cultural techniques and that therefore
their law is what it is. It is hardly too much of a paradox to reverse the
order of cause and effect and assert that the unwritten character of customary
law is the product or effect of its general nature, rather than the reverse.
Max Weber has shown5 how essential writing is for the functioning of
a modern rational bureaucratic system. But the relevant point in the present
context is that it is not the mere fact of writing but the use to which it is
put that is crucial. In Lesotho, it happens to be the fact that written records
of the proceedings and judgments of most courts and tribunals are kept, but this
is not enough to constitute a “written law”, since the records are not, on the
whole, then used as a basis for analysis, the establishment of precedent, or
the abstract manipulation of concepts. At least until very recently,
writing might as well not exist for all the part that it has played in the
shaping of the law.
Notes
1. See, eg, J
F Holleman Issues in African Law 13.
2. A
generalization obscuring the fact that there have been at least two indigenous
codes of customary law: the Laws of Lerotholi drawn up in 1903 by the
Basutoland National Council; and from 1828, the Merina monarchs of Madagascar
began to issue written codes: Deschamps in M Gluckman Ideas and Procedures
in African Customary Law 169ff.
3. See M
Gluckman The Judicial Process among the Barotse 253ff and also L A
Fallers Law without Precedent 18-20.
4. T F T
Plucknett Legislation of Edward I (1949) 7.
5. M
Rheinstein Max Weber: Law in Economy and Society ch 9.
II CUSTOMARY LAW AND
ANTHROPOLOGY
(1) Anthropological
jurisprudence
Customary law, usually identified with exotic, ‘tribal’ societies,
inevitably attracted the interest of anthropologists, and much of our
information on the subject (information which has been gradually incorporated
into the legal code via commissions of inquiry, court decisions, codes,
textbooks and restatements) was originally gathered by anthropologists. Their
interests of course extend far beyond the narrow domain of law, which they see
as only one aspect of social control. It comes as no surprise then that
anthropology (and its sister science, sociology) have been a fruitful source of
ideas about the relationship of law and society.
The close association between anthropology and customary law led to the
development of a specialized discipline, ‘anthropological jurisprudence’.[17]
Sir Henry Maine is generally considered to be its founder. His major work Ancient
Law (1861) - was inspired by the topical issue of his time: evolution.
Early anthropologists (notably Morgan and McLennan) transposed the newly
discovered biological laws to their studies of society, and it was widely
believed that all societies progressed through clear and inescapable stages of
development. Maine applied this idea to law.[18]
By comparing various archaic legal systems - Roman, Hindu, English and Celtic -
he sought to discover a universal pattern of legal development. Implicit in
this thesis was the understanding that by comparison of disparate phenomena a
general evolutionary direction could be charted, from a lower, primitive, to a
higher, more civilized, state. Political structure was regarded as the
determinant of legal change. The earliest polity was the family, later the
tribe, and finally the state; changes occurring in each of these structures provoked
consequential changes in the legal system.
Evolutionist theorizing yielded provocative ideas about
social change but most of them mere highly conjectural, and the non-empirical
method was later regarded as a fatal defect. A more pervasive problem, which
has never been completely overcome, was an intrinsically ethnocentric bias.
This was responsibly for the belief that western European society represented
the apogee and goal of all development, a belief that conveniently endorsed the
racial prejudices of the imperial powers. Although evolutionism was later
discredited by functionalist anthropology, it survived in popular thinking, and
long after it head lost any plausibility in academic circles, it continued to
influence thinking in the colonial administration.[19]
The typing and the evolution of different legal
systems according to their socio-economic and political milieu was also a
concern of sociology, and in this regard Weber’s book Economy and Society
(1922-5) was an influential source of ideas. He sought to explain the role
of law in the formation of industrial or bourgeois capitalism in western
Europe.[20]
While Weber acknowledged the most organized societies had law, the European
legal systems (and here he would except English law) differed significantly
from the others.[21]
Their unique quality lay not so much in the content of legal rules as in their forms
of organization and process. Judicial decisions, for example, were based on
the application of notionally universal rules, and were free from political
intervention. The qualities peculiar to western law - its autonomy, the
purposiveness of its legislation, the generality and universality of its
rules-were captured in the epithet ‘rationality’.[22]
Weber typed legal systems according to another
variable, their basis of legitimation.[23]
He identified three ideal forms: charismatic, traditional and legal. Where the
legitimacy of a legal system derived from the charisma of the law-giver, it
would be his or her extraordinary or exemplary characteristics that would
incline members of the social order to obey any commands given. Conversely, the
source of rules in primordial custom or the practice of the ancestors (as is
the case with customary systems of law) provided a traditional basis of
legitimacy. The hallmark of a ‘modern’ legal system is, in Weberian terms, its
legal rationality. In a substantive sense this means that predetermined,
generalized rules provide the sole criteria for law-making and law-finding; in
a formal sense, it means that the unique features of individual cases are not allowed
to obtrude into the legislative or judicial processes.[24]
Weber’s typology has done much to inform the modern
legislative programmes of the law and development movement.[25]
If custom (including customary law) is not ‘rational’ in the sense that western
law is, then it follows that its rules are not the product of purposive
law-making. (This helps to explain the persistent belief that customary law
never originates in legislation.)[26]
As a result custom is believed to operate as a check on behaviour, never as a
goal or an incentive, with the implication that customary law cannot be used to
achieve a predetermined end. In Weber’s theory (as in evolutionism) simple
‘tribal’ societies lay passively imprisoned and unthinking in the bonds of
tradition. And in one respect at least this coincided with positivism: the
tranquillity of tribal societies was explained, in the absence of all the
trappings of a legal order, by an unconscious conformity to habits
deeply ingrained.[27]
The break with this view, in particular with
evolutionism, can be dated to a new perspective opened by Malinowski in a work
on the Trobriand Islands: Crime and Custom in Savage Society (1926). His first
concern was to destroy the illusion that
‘[the “savage”] obeys [laws] “slavishly”,
“unwittingly”, “spontaneously”, through “me “mental inertia”, combined with the
fear of public opinion or of supernatural punishment; or again through a
pervading “group sentiment if not group instinct’”.[28]
Malinowski showed that
order on the islands flowed from the economic circumstances of the people,
circumstances which compelled a calculated reciprocity of behaviour.[29]
Perhaps even more important than this finding was
Malinowski’s research method. It opened new possibilities for legal
anthropology and for the social sciences in general. Two characteristics marked
this method as ‘scientific’, and so distinguished it from the speculative
tendencies of evolutionism. In the first place, it was empirical, requiring
actual observation of native life; in the second place, each culture was to be
evaluated on its own terms, without reference to a notionally superior or more
civilized external standard. By implication this meant rejection of the
comparative, theoretical approach of evolutionism.[30]
This was perhaps inevitable. The suppositions of the evolutionists were being
confounded by first-hand evidence of native life in the colonies, and in any
event, interest was shifting from conjecture about prehistoric societies to the
understanding of existing ones.
During the 1920s in the United States the concerns of jurisprudence were
also changing. Roscoe Pound and Oliver Wendell Holmes had succeeded in
diverting attention from analytical positivism, with its preoccupation with
what law is, to the more practical matter of what law does. In
consequence the focus of investigation became the courts in action, not the law
in abstract. The school of American Realism, as it came to be called, sprang
from Holmes’s famous dictum: ‘The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by the law.’[31]
At this point law and anthropology merge, because the frame of reference
for jurisprudence expanded to include the social context in which law was
applied. One of Holmes’s many aphorisms was: ‘It is perfectly proper to regard
and study the law simply as a great anthropological document.’[32]
Llewellyn and Hoebel were both disciples of the Realist movement and they
applied its tenets to the study of systems of customary law. In a seminal work,
The Cheyenne Way (1941), they set anthropological jurisprudence on a new
course, one which it still follows. In keeping with the precepts of Realism
they concentrated on the
‘peculiar job [law
has] of cleaning up social messes when they have been made. Law exists for the
event of breach of law and has a major portion of its essence in the doing of
something about such breach.’[33]
This had far-reaching implications for
research method.
Llewellyn and Hoebel identified three possible ways of investigating
customary law.[34]
The first they called ‘ideological’, implying an examination of the rules which
a society deemed to be ‘proper for channeling and controlling behaviour’. To
construct a code of tribal law the field-worker had only to ask the elders of a
community what they considered the rules to be. More recently this has come to
be called a ‘rule-centred’ paradigm[35]
which rests on an assumption that ‘normal behaviour [is] the product of
compliance with established normative precepts’.. This approach typifies
several famous southern African works, Schapera’s Handbook of Tswana Law and
Custom (1938) being a classic example, and currently it is the basis of the
so-called ‘jural school’ of legal anthropology centred in Pretoria.[36]
It was also the preferred method of the restatement projects undertaken by the
School of Oriental and African Studies of London University.[37]
A rule-centred or ideological approach is inevitably
favoured by lawyers because it is conducive to their needs. They want precise,
clear statements of rules; any circumstantial information about social context
is an irrelevant distraction to be excluded.[38]
It is not difficult to trace a conceptual link between this need for certainty
and positivism.[39]
[3] ALLOTT FUTURE
OF LAW IN AFRICA 14-15
One of the major problems in administering
customary law today is in determining what is the appropriate customary law to
be applied in any particular case. The lack of certainty is due to various
causes: (i) it may be inherent in the character of customary law itself; (ii)
there may be uncertainties as to the application of customary law; and (iii)
there may be uncertainty due to the deficiencies in the process for the
ascertainment of customary law.
As to the character of
customary law itself, the first point to be noticed is that there may be a lack
of fixed rules for dealing with different situations, and judges in African
courts may merely apply what they consider to be justice and common sense in
the light of the special circumstances of the case. The problem of the
definition of customary law is also relevant here; the question, for instance,
which norms are legal and which are merely social, moral or religious,
arises....
As regards the second point - the uncertainty as to the application of
customary law in particular cases - this often arises because of possible
conflict between customary law and English law and doubts as to which system
should be applied in any particular case. There is also the difficulty arising
from the lack of uniformity in the customary law as between one tribe or one
area and another.
As regards the judicial
ascertainment of the customary law, a distinction ought to be made between the
position in the superior or non-African courts of a territory, and in the
African or native courts. The basic rule in the non-African courts is that
until a custom has become notorious by repeated proof the courts cannot take
judicial notice of it....
As
regards ascertainment of the customary law by African or native courts, the
position is entirely different. In the African courts the customary law is
supposed to be in the breasts of the judges, and there is no question of
proving the law by evidence. Several speakers made the point that uncertainty
as to the customary law existed only in the minds of foreigners and not in the
minds of those who were themselves subject to the customary law. It was pointed
out that in some areas today the young men may not be learning the customary
law and hence the traditional knowledge of customs may be lost by the new
generation. Uncertainty might arise in the African courts as to what customary
law to apply if there were so-called “gaps” in the customary law. Such gaps
might occur if new situations faced the courts for which there was no existing
appropriate and applicable rule of customary law. In such a case it might be
necessary to create new customary law, and many delegates made the point that
this was a contradiction in terms. On the other hand, it was stated that there
were no gaps in fact in the law which was administered in most areas, and the
courts would usually devise a rule to fit each case which came before them. In
other words, the African courts were evolving rules to deal with present-day
circumstances; but legislation might be necessary in order to supplement the
law in certain aspects.
The rule-centred paradigm further assumes that fundamental legal
concepts, such as law, property, crime and delict, are universal and thus
observable in all legal systems. This assumption, of course, is at best
debatable, and many would say completely wrong. An even more telling defect of
the paradigm is that it ‘contents itself, for the most part, with an almost
passive acceptance of ideal norms as truly representing the law’.[40]
The opinions and statements of the norm collected by the field-worker, give
only a partial view of social reality. They do not necessarily reflect the way
that people actually behave, since every rule allows leeway for deviance. An
ideological approach tends to obscure the difference between the ideal and the
reality.
The second method identified by, Llewellyn and Hoebel is
in essence descriptive. From observation of how people in a community behave,
law may be inferred. On its own, observation is generally acknowledged to be
insufficient, as there is no guarantee that the field-worker will be in a
position to witness all relevant behaviour or that he or she will draw the
correct inferences about its significance. But when the data are supplemented
with the views of native informants, a more rounded image of a legal system can
be constructed.
Llewellyn and Hoebel personally advocated a third
method, one culled from American Realism, which they claimed was especially
appropriate for the study of law: the case-study method.[41]
[4] ROBERTS
(1971) 3 BOTSWANA NOTES & RECORDS 12-14
The practical importance of the arguments about
methodology was soon brought home to the writer of this note when he found
himself in the field. In the course of investigating the nature of interests in
arable land held under customary forms of tenure, I asked several elderly men
whether payment was ever made where fields were transferred from one person to
another. All were emphatic that such payments were “against the law” and never
happened. However, I had already discovered, reading through the records of the
Chief’s Court of their tribe, that payment was permitted by that court provided
that the fund in question had been cleared for cultivation (the idea being that
such payments were referable to the cost of improvements carried out on the
land). Later on, as I got to know the area better, I found that it was quite a
common practice for payment to be demanded even where interests in uncleared
land were transferred (particularly where such land was favourably sited in
relation to water supplies and centres of population), even though people knew
that this was not permitted by the Chief’s Court. So here were three methods of
investigation - talking to informants, investigating actual decisions of the
court and observing the day-to-day habits and practices of tribesmen - each
revealing a different picture of the law. Each picture was true in a sense, as
what the old men said was probably the traditional position, whereas the
discrepancy between the court records and everyday behaviour could be explained
on the basis that the courts had not caught up with generally accepted practice
(a common enough phenomenon in any legal system). The lesson to be gained was
that the picture of the law formed might well be heavily dependent upon the
method of investigation used; a possibility the full implications of which I
had not really considered.
Previous investigations of Tswana customary law had
been almost entirely carried out through interviews with informants. This
method formed the basis of the research upon which Schapera’s classic, A Handbook
of Tswana Law and Custom, was written.... However, other researchers,
notably anthropologists, have investigated customary law through the
examination of actual disputes. Some have used the technique of observing
disputes while they are actually in progress, while others have relied upon
written records kept by customary courts. Latterly, some lawyers have also been
won over to this method.
Recent arguments about the methods of recording
customary law have been largely concerned with the respective merits of the two
approaches, and rather damaging attacks have been made upon investigations
based upon interviews with informants. Such criticism has been made on two
levels. First, it is said, such investigations tend to be directed towards
obtaining a set of abstract rules, or “disembodied propositions” about the law,
and fail to reveal the function which these rules have in the social system and
the mechanics of their operation. These criticisms, which are also fashionably
directed at rule-centred legal research in common law systems as well, seem
well founded as far as much of the work so far produced by the Restatement of
African Law Project is concerned. The restatements so far published do largely
consist of abstract rules inadequately anchored to the social context in which
they are alleged to apply, and they are also very weak as far as procedural
aspects of the law are concerned. However, these defects are not inevitably
inherent in research conducted through discussion with informants, a fact which
seems to be overlooked by some critics of the Restatement of African Law
Project.
The other kind of criticism levelled at investigation through
interviews is that a defective picture of the law is obtained on account of the
individual opinions and preconceptions of the interviewer or the person
interviewed. First, there is the problem that the range and kind of information
obtained is circumscribed by the questions asked by the investigator. Any
questions the recorder asks must be determined by his preconceptions as to what
the legal system he is investigating is like; where his training has been in
another legal system and he has not had an opportunity to watch the one he is
investigating for a long time at close quarters, the questions asked may well
be wrong ones, or, at least, peripheral matters may be laboured and central ones
utterly neglected. There are also wrong ways of asking questions; a fact well
known and guarded against by investigators in some areas of the social
sciences, but seldom given much attention by lawyers. Secondly, there is the
risk of distortion on the part of the informant: he may tell you what he thinks
you would like the answer to be; what he would like the answer to be; or, what
the answer might have been in the past. Of all these problems, the one that
worried me most was the problem of dating information obtained from informants.
My impression was that most informants talked most easily about the past, and
lapsed back into this tense despite continual reminders. Of course, this
difficulty was greatest where an informant considered that the present law had
taken an unfavourable turn. An example of this may be cited from the context of
the law of procedure. Older informants always said that a young married couple
might not bring a matrimonial dispute before a ward court before referring it
to their senior relations, who had also to be present at the ward court
proceedings. Similarly, it was regularly said that a young woman who had been
impregnated might not bring proceedings herself, but that this had to be done
by her father or guardian. No doubt this was true in the past, but the most
limited personal experience of court procedure today discloses that this is no
longer the case.
It was my experience that both of the dangers
stressed in the previous paragraph could be greatly reduced by an examination
of actual disputes, as opposed to posing theoretical questions to informants.
For this it is necessary to look to the customary courts as a primary source of
information. This involves sitting in these courts, watching and listening, or
finding out what happens in them by other means. While it is indispensable to
spend some time watching and listening, it is certainly impossible in this way
to obtain a comprehensive picture of the law within the time likely to be
available to most investigators (except, perhaps, anthropologists). In view of
this it is necessary to investigate actual disputes by building up accounts of
them from discussion with informants or by examining the records of proceedings
kept by the courts. It is certainly possible to build up a picture of past
disputes by talking to informants, and on the whole men’s memories of the
details of past litigation seem curiously extensive, but the method is
laborious and there is always the fear that crucial features of a piece of
litigation have been forgotten with time. Awell-prepared contemporary written
record, on the other hand, provides a starkly neutral account of what took
place in court. Although such a record is open to interpretation by the
investigator, it can in no way be influenced in form or content: by his
preconceptions.
Reliance on the
study of cases to the exclusion of any other approach, however, has its own
shortcomings. First, the occurrence of a particular type of case may be
influenced by variables that have nothing to do with the norms involved. For
instance, many people are reluctant to litigate about their domestic problems,
a phenomenon on that tends to obscure norms which might be socially very
important. Secondly, the construction of rules for the purposes of individual
cases does not necessarily determine how they will fare in later suits. Each
case is in essence an excursion from the general to the particular; unless the
doctrine of stare decisis is strictly enforced there can be no guarantee that
from one hearing the particular will become the general. In any event the
actual manifestation and application of a rule during a trial is determined by
a multitude of factors, including the litigants’ style of argument, the
community’s views, and the judge’s forensic ability. Thirdly, concentration on
court cases tends to deflect attention from extra-judicial institutions, such
as conclaves of elders, where norms are also constructed and developed.[42]
Llewellyn and Hoebel themselves were not prepared to abandon the study of rules
completely, but they did insist that the rules be placed in a proper context -
the trial - where the limits of deviance from ideal norms could be more
accurately fixed.
Even the simple
observation of the trial is now seen as unduly restrictive; a case should
rather be studied in its full setting, from the beginnings of a grievance,
embedded in its social matrix, to the effect of the judgment on the subsequent
relations of the litigants.[43]
This is the so-called ‘extended’ case method. It heralded a move away from
trial/judgment accounts of dispute to studies of social conflict that were far
less discriminating.[44]
In recent years, the case-study method has come to be associated with
what is called a ‘processual’ paradigm of customary law.[45]
The interest in process is part of a broad concern with social control, a
tribute to the lasting influence of Malinowski.[46]
One of the tenets of this approach is the belief that social conflict is
neither unusual nor pathological. The focus of research tends to fall on the
constraints on behaviour that are derived from ‘the intrinsic properties of
social relations - obligations, expectations, and reciprocities - and by the
exigencies of interaction’.[47]
The dichotomy between rules and processes also owes much to the
distinction drawn between law and politics.[48]
Unlike the legal process, which depends on the impartial application of rules,
politics focuses on the exercise of power.[49]
Study of process rather than rule, and politics rather than law has resulted in
the overall demystification of the legalism characteristic of western legal
systems, viz the formal equality of the parties before the court and impartial
adjudication according to a fixed code of rules.
At the time that Llewellyn and Hoebel were writing, the
theoretical dogma of anthropology was functionalism (usually called
structural-functionalism). One of the canons of functionalism was cultural
relativity: exotic data were to be accounted for only in terms of the native
cultural system. This meant that each item of information, if its meaning were
to be explained, had to be viewed in relation to other items, a process of
reasoning that suggested the logical connection of all information in a
coherent system.[50]
This entailed a conception of society as a system rather than as an aggregate
of individuals. What made the group something more than the totality of its
component parts was the relationship of the parts to each other in specific
ways, relationships that were patterned in a manner analogous to the laws of
nature. A biological metaphor was usually invoked to show how a society
functioned: each part of an organism contributed to overall good health. This
meant that explanations of social data were inevitably teleological: all social
life depended on the fulfilment of certain requirements functional to a
society’s survival.
While functionalism was applauded for its value-free,
empirical method, there were serious flaws in its premises. It assumed, for
instance, that all parts of a system were integrated into a unified whole - the
society or culture under investigations[51]
- and that the natural state of this unit was one of changeless equilibrium.[52]
This detracted from influences extrinsic to the society in question. Yet, in
keeping with the metaphor of a healthy organism, it seemed that the
introduction of any foreign matter would disrupt the function of the organism,
and would therefore be pathological.
Of special importance in the context of Africa was
the bearing this had on colonial policy. Africans were presumed to be divided
on ethnic or tribal lines; each tribe was studied as if it were, and ought to
remain, free from the subversive influences of European culture. It followed
that change was socially harmful, and that when two cultures were brought into
contact with one another, there was bound to be conflict.[53]
This understanding operated politically to suggest the desirability of
segregation and the safeguarding an antique ‘tribal’ ideal against the
innovations imported from the West.
Of the other objections to functionalism, possibly the
most important, was the charge that it was not, in fact, objective. With the
emergence of a critical anthropology based on Marxist theory, the value-free
stance of functionalism was debunked, revealing that much of the work done
during the colonial era was directed by, or at least disposed towards, the
interests of the colonial governments.[54]
(2) Key
concepts
(a) Culture
Culture has conventionally been regarded as the raw material of
anthropology. In much the same way that definitions of law delimited the scope
of study for lawyers, so definitions of culture have specified the proper area
for study by anthropologists. Most of these definitions can be traced to
Tylor’s:
‘Culture or Civilization . . . is
that complex whole which includes knowledge, belief, art, morals, law, custom,
and any other capabilities ... acquired by man as a member of society.’[55]
In this
broad sense culture is normally taken to mean the totality of human behaviour
and artifacts that are socially, as opposed to genetically, transmitted. In a
narrower sense, however, culture is used to denote different social units.
[5] KAPLAN & MANNERS CULTURE THEORY 2-4
[S]ince the emergence of anthropology as a
systematic field of inquiry in the late nineteenth century, the issues that
anthropologists have been concerned with can be subsumed under two broad and
interrelated questions: (1) How do different cultural systems work: and (2) How
have these cultural systems, in their considerable variety, come to be as they
are? Note that these questions are addressed to the differences - inspace
as well as over time - among cultures. If all cultures were identical, there
would probably be no need for the discipline of anthropology. Human biology
viewed broadly would be the discipline through which we would seek explanations
of human behaviour. This is not to say, however, that anthropologists have not
been concerned with the similarities among cultures. They have, but cultural
similarities arise as issues to be explored when they are seen against the
contrasting background of other human, or in some cases infrahuman,
differences.
If, as all anthropologists assume, it is true that
the various populations of the world belong to a single species, Homo sapiens,
and if it is also true - following this - that the psychobiological nature
of each of these populations is roughly the same, we should expect to find that
all human societies would look pretty much alike or, at least, that they would
exhibit certain broad similarities. And indeed in certain respects they do. To
put it somewhat more concretely: if it is the case - and nobody has been able
to demonstrate the contrary - that the psychobiological makeup of, let us say,
the Trobriand Islanders and the Europeans is not significantly different, then
it would be logical to assume that since both “groups” have occupied the planet
as Homo sapiens for the same length of time, their cultures or
lifeways should be much more alike in structure and content than they are.
However, having noted the differences between the Trobrianders and the
Europeans, we generally tend to be more impressed by these than by the apparent
similarities evidenced by their cultures. Not only are we impressed, but we are
likely to ask why the differences exist. If the psychobiological infrastructure
is indeed a constant, it is obvious that we cannot look to it to provide us
with an answer to our question. For while psychobiology may account for many of
the broad cultural resemblances that we observe, it cannot at the same time
explain the differences.
In
addition to the cultural similarities that may be attributed to the
psychobiological “unity” of man, there are other similarities which cannot be
explained by this unity. We refer to those resemblances in cultural form and
pattern that arise from convergent processes of growth, change, or
development-for example, the similarities, despite certain persisting dissimilarities
in culture content, between industrial Japan and industrial Germany. They
interest us in this connection because we know that the sociocultural systems
of these two countries differed profoundly in the era immediately preceding the
launching of their industrial revolutions. Thus, parallel processes of
industrialization clearly led to increasing similarities in ideology and social
structure.... Throughout this entire period of intense change, the
psychobiological features of these two populations, so far as one can tell,
remained constant.
Anthropology’s central problems, then, are the
explanation of cultural similarities and differences, of cultural maintenance
as well as cultural change over time. As change may be seen only against the
background of cultural stability or maintenance, so stability may be understood
only against a background of change. If cultures did not differ from each
other, and if they did not change, questions about the mechanisms of change or
stability would never arise. But we observe that cultures do differ from each
other and-at varying rates - do change over time. We cannot fall back on
intraspecific variation to account for the cultural differences found so often
among populations in the past as well as in the present.
Only in examining those mechanisms, structures, and
devices lying outside of man - the means by which he achieves his own
transformation - can we learn why some groups differ in their beliefs, values,
behaviour, and social forms from others....
Those collective mechanisms, structures, and devices
lying outside of man (outside in an analytic rather than in some metaphysical
sense) are what anthropologists have called culture.
In popular thinking differences of culture explain the
persistence and especially the change of social institutions. Typically, it
would be argued that African family structures changed when people migrated to
the cities because there they came into contact with European culture, which
influenced their behaviour and way of thinking. The process of acculturation
was thus the key to explaining social change.[56]
As an analytical device this has been found to be too vague, and
anthropologists now look instead to other criteria, in particular economic or
political forces.[57]
Successive governments in South Africa have used culture as a device to
legitimize their policies. Racial segregation and the fragmentation of the
country into separate homelands was justified by the understanding that the
population was naturally divided into different (and implicitly hostile)
cultures, whose competing interests could be accommodated only by territorial
and social separation. By promoting this process as an ostensible right of
cultural self- determination, the government could vindicate the maintenance of
unequal power relations on the ground that they happened to coincide with
cultural differences.
[6] THORNTON in BOONZAIER &
SHARP SOUTH AFRICAN KEYWORDS 17-24
One textbook
goes so far as to say, “Soveel volke wat daar is, soveel kulture bestaan
daar” (There are as many cultures as there are peoples.)1
Another widely used textbook, An Introduction to Anthropology, by D P
Stoffberg, says that culture is “the expression of an ethnic group’s speech,
thought processes, actions and aspirations. An ethnic group and its culture
develop organically and simultaneously to become an indivisible, homogeneous
group.”2
A C Myburgh approaches the issue from the other side by defining “a
people” as “a human group producing and maintaining a culture”3,
while B Levitas in yet another textbook claims that the members of a group
“i.e. a people, possess a common way of life and share a common culture”, and
goes on to say: “All South Africans are classified into races ... [and] ...
consist of many peoples, the Xhosa, Zulu and Tswana, etc., each with a distinct
language and culture.4 We find similar views world-wide. Elvin
Hatch, for instance, defines culture as “the way of life of a people” in the
1985 edition of The Social Science Encyclopedia.5.
... [T]he assertion of cultural differences distinctive of
different “peoples” or volke is apparently contradicted daily by the
very fact that the ideology of differences is communicated easily across all of
the “cultural barriers” that we are told exist. In the marketplace and
workplace, listening to music or watching television, at homes and in churches,
people in fact experience the same desires, profess the same religions, follow the
same leaders, and eat the same cornflakes, notwithstanding their
“multicultural” condition!
The problem is the little “s” that makes “cultures”
from “culture”. Most of the textbooks just cited acknowledge that culture is
what makes the species Homo sapiens specifically human, but once this is said,
all agree that humanity is divided by its many cultures.... [M]uch more than
the scientific definition of “culture” is at stake here. The very act of
defining “culture” is itself a declaration of what it is to be human - that is,
a moral statement - and a statement of identity - in other words, a political
statement. This, is because the attempt to understand and to define culture is
also part of culture. Unlike the attempt to say precisely how microbes cause disease
or specify the exact composition of a piece of granite, to discuss culture is
to be part of culture, to have an effect on it, and ultimately to change the
very nature of the “object” itself. Although this concept is difficult to
grasp, it is essential if our understanding of culture is to be more than a
restatement in different terms of the moral and political ideas of our times.
The idea
of culture and its context
The idea of
culture as it is used in the modern period acquired the main features of its
meaning in the nineteenth century. It shares a complex intellectual history
with the ideas of “society”, “nation” and “organism”, all of which appeared
with their contemporary sense around the beginning of the nineteenth century.
They have in common the idea of self-contained and self-regulating wholeness.
Several intellectual sciences developed around these ideas, and today form
the content of the academic disciplines of anthropology and/or ethnology,
sociology, political economy and/or political science, and biology. The
powerful ideas that these sciences have contributed to the world have
transformed it completely in the two centuries in which they have been current.
These
ideas have interacted with each other too. The idea of “culture” has frequently
been fused with that of “society”, and they have been used interchangeably to
refer to a general social state of affairs or to a more or less clearly
recognisable group of people. Ideas about “cultures” and “organisms” have also
influenced each other in the development of theories of evolution, both
cultural and biological. Sometimes people have argued that cultures are like
organisms, or even that cultures are a kind of organism or
“super-organism”. Such notions have supported the idea that nations are endowed
with unique cultures - something like the genetic component of an
organism-which must be protected in order to preserve “society”. Unfortunately,
these ideas are confused and contribute nothing to a useful understanding of
culture.
Worse still,
these ideas have been used to justify repressive and brutal forms of government
by arguing that, like an organism, a culture or a nation must defend itself
against internal, as well as external, enemies. If the initial premise that
cultures are “owned” by nations is accepted, the activities of repressive state
bureaucracies may be justified as a form of political hygiene. But in many
cases the apparent similarities that exist between ideas of “cultures”,
“organisms”, “nations” and “societies” are the result of the historical
development of these ideas in a common intellectual and political context, and
not the expression of genuine insight into the human condition....
In the
twentieth century, the Modernist idea of culture retained the notion that
culture is uniquely associated with a single society or nation. But unlike the
Romantic notion , it asserts that culture functions to maintain society (or
nations, and that culture is historical and changes over time, often in
relation to (or determined by) changed in “society” (or economy). Because
culture - in the form of myths, political speeches, religious beliefs,
ideologies, histories and traditions - is held to have a social function, the
theory requires that each “culture” exists as a whole within a
“society”.
Anthropologists
who wrote according to this concept of culture often spoke about groups of
people living on islands, or isolated from others by forests or mountains. Even
where the people they wrote about were not isolated in any physical way, simply
the fact that they were written about in a book, usually titled something like The
Life of a South African Tribe (H A Junod, 1912), The Bantu-speaking
Tribes of South Africa (Schapera, 1937), or The Pedi (Mönnig, 1967),
suggested their uniqueness and boundedness. The boundaries of so-called
national states reflect, in many cases, the limits of a nineteenth-century
dictionary which defined a “language” (such as Tswana), or the designation of
map-makers who, from the vantage point of Cape Town, distinguished between “this
side” (cis-) and “that side” (trans-) of the Kei River. Elsewhere,
culture has been written directly into legislation, administered by
bureaucracies, and enforced by armed intervention. Indeed, in South Africa, it
is often the history of ethnological publications, rather than the real
history of South African people, that has had most influence in the shaping of
political boundaries....
One of the
factors that determines the perspective of the observer most forcefully is the
distribution of wealth and power among the people the observer observes, and
this is precisely what most earlier concepts of culture left out-or rather left
for others to consider. Since the study of culture takes place in the
discipline of anthropology, and the study of power, economy, and biology is
pursued by other disciplines, part of the problem is the history of disciplines
themselves.
The fact that the observer must also be part of the
social situation that is observed was left out of earlier descriptions of
“cultures”. This created the effect of “cultures” existing by themselves, the
objects of scientific and disinterested observation. In fact, there are many
reasons why observers observe and writers write about peoples’ culture. But in
order to write about the differences between people, observers must be there.
Nomatter how different they may seem to themselves or to those they
describe, observers must look and listen, sometimes understanding and sometimes
misunderstanding. They must buy, sell, negotiate - in short, interact in a
human and social way. The fact that books which detail all the differences of
“cultures” can be written at all negates the idea that cultures are fundamentally
different.
Many anthropologists now feel that we have come to the
end of an age. Some call it post-Modernism, for lack of a better term, to
indicate that we have now entered an intellectual age that can dispense with
some of the ideas on which the oppressive weight of the modern state rests. It
is clear, too, that many concepts that have been fundamental to the sciences
which appeared and grew during this age - biology, sociology, anthropology, and
others - have changed. The concept of culture, one of the most politically and
intellectually powerful ideas of the Romantic and Modern times, is also
changing.
Notes
1. P J Coertze Inleiding tot die Algemene Volkekunde 61.
2. D P Stoffberg Introduction to Anthropology 1.
3. A C Myburgh Anthropology for Southern Africa 31.
4. B Levitas Ethnology: an introduction to the peoples and
cultures of southern Africa 19.
5. A Kuper & J Kuper (eds) Social Science Encyclopedia
178.
(b) The Simple Society
All works on customary law
are formulated with particular ideas of society in mind. One of the most
influential in this regard is an opposition between simple and complex
societies. The former type (usually identified with Tönnies’ Gemeinschaft
relationships) implies a homogeneous group of people with shared values and
interests; the latter (identified with Gesellschaft relationships) is
the antithesis. Systems of customary law are identified with the normative
orders of simple societies and predictably western-style legal systems are
associated with complex societies.[58]
The distinctive features of the two legal types are predicated by this
dichotomy;[59]
for example, customary law is believed to be consensual in origin, and
the law-making process is thought to be more democratic[60]
than in complex societies.[61]
Gluckman elaborated the concept of the simple society (which in the
extract below he terms ‘tribal’) in order to explain the operation and
evolution of the legal institutions he was going to describe.
[7] GLUCKMAN THE IDEAS IN BAROTSE JURISPRUDENCE 4-5
I distinguish a society as “tribal” by several interrelated
characteristics: there are only relatively simple tools, so that each worker
produces little beyond what he can himself consume of the basic primary goods;
since a wealthy man cannot eat more than a certain amount of food, wear
luxurious clothes when only materials like skin, barkcloth, and a little cotton
are available, or live in a palace when habitations are made of skin, grass,
mud, and similar materials, these societies are marked by a basically egalitarian
standard of living; trade goods may travel from hand to hand in a series of
exchanges over distances, but the total volume of trade is limited.
Two important general results flow from this
situation. First, the wealthy and powerful do not form what might be called a
separate “class”, cut off from the poor by a quite different style of life.
Those of varying power and riches mix fairly freely with one another, and
intermarriage can occur between their families without provoking a public
scandal. They can thus be kin to one another. In fact, the powerful and wealthy
use the lands and goods they control to attract followers, and a man’s prestige
is determined by the number of dependants or subjects he has, much more than by
mere possession and use of goods. Prestige and power are important in all these
societies and enable a man to control the actions of others; but he gains that
control through establishing relationships of personal dependence with as many
others as he can.
Second, the usual settlements of these societies are
camps, hamlets, or villages of a number of closely related families - what
Ehrlich called “genetic associations”. The core of organization of these
settlements may be a number of men related to one another by descent through
the agnatic line, or in other tribes through the matrilineal line; or the core
may be in yet other tribes a number of females related to one another by
descent through the female line. These are the most clearly defined
possibilities. But extremely complex situations are also found, in which men
and women may choose to live with any kinsfolk, as among the Barotse, so that
families within a settlement are related to one another in a most complex
pattern.
Despite these variations, in all societies of this
type a grouping of some kind of kinsmen and/or kinswomen, with their spouses
and usually their children, tend to live together. As a group, sometimes
through particular representatives, they own certain rights ... of access to
land, in which they have other rights as members of smaller units and as
individuals. As we shall see, goods are appropriated by the individual who
produces them, despite some collaboration in productive activities, but
consumption involves considerable and constant sharing. Since there are no
specialized priests, these groups also form congregations, worshipping the
spirits of their dead kin or supplicating at common land shrines or other
ritual objects. There are no schools, and children are educated as well as reared
in the settlement. The settlement also tends to form a political unit for
important purposes, whether or not the tribe be organized under a chief.
Relations among the members of these groups are thus directed to a multiplicity
of purposes, and I have therefore named them multiplex. It is this
situation that I describe continuously as one “dominated by status”.
These ties establish the most important sets of
obligations between persons, and hence transactions between persons are
determined by their status (in Maine’s sense) relative to one another. The
relations involved stand in sharp contrast with the relations, arising out of
single interests, in which we nowadays become associated with other persons
through the many contracts into which we enter throughout our daily lives.
In the next
extract the differences between simple and complex societies are further
refined, again with particular reference to Africa. The principal organizing
feature alluded to - the degree of political centralization - is ofspecial
interest to lawyers because of the positivist concern with political
sovereignty.[62]
The models presented below have been highly influential in explaining, inter
alia: the content of rules of law, whether the societies in question actually
have ‘law’, modes of processing disputes,[63]
and methods of law-making.
[8] FORTES & EVANS-PRITCHARD AFRICAN POLITICAL SYSTEMS 5,14-16
It will be noted that the political systems described in this book fall
into two main categories. One group, which we refer to as Group A, consists of
those societies which have centralized authority, administrative machinery, and
judicial institutions - in short, a government - and in which cleavages of
wealth, privilege, and status correspond to the distribution of power and
authority.... The other group, which we refer to as Group B, consists of those
societies which lack centralized authority, administrative machinery, and
constituted judicial institutions - in short which lack government - and in
which there are no sharp divisions of rank, status, or wealth.... Those who
consider that a state should be defined by the presence of governmental
institutions will regard the first group as primitive states and the second
group as stateless societies....
In
our judgement, the most significant characteristic distinguishing the
centralized, pyramidal, state-like forms of government of the Ngwato, Bemba,
&c., from the segmentary political systems of the Logoli, the Tallensi, and
the Nuer is the incidence and function of organized force in the system. In the
former group of societies, the principal sanction of a ruler’s rights and
prerogatives, and of the authority exercised by his subordinate chiefs, is the
command of organized force. This may enable an African king to rule
oppressively for a time, if he is inclined to do so, but a good ruler uses the
armed forces under his control in the public interest, as an accepted
instrument of government - that is, for the defence of the society as a whole
or of any section of it, for offence against a common enemy, and as a coercive
sanction to enforce the law or respect for the constitution. The king and his
delegates and advisers use organized force with the consent of their subjects
to keep going a political system which the latter take for granted as the
foundation of their social order.
In
societies of Group B there is no association, class, or segment which has a
dominant place in the political structure through the command of greater
organized force than is at the disposal of any of its congeners. If force is
resorted to in a dispute between segments it will be met with equal force. If
one segment defeats another it does not attempt to establish political dominance
over it; in the absence of an administrative machinery there is, in fact, no
means by which it could do so. In the language of political philosophy, there
is no individual or group in which sovereignty can be said to rest. In such a
system, stability is maintained by an equilibrium at every line of cleavage and
every point of divergent interests in the social structure. This balance is
sustained by a distribution of the command of force corresponding to the
distribution of like, but competitive, interests amongst the homologous
segments of the society. Whereas a constituted judicial machinery is possible
and is always found in societies of Group A, since it has the backing of
organized force, the jural institutions of the Logoli, the Tallensi and the Nuer
rest on the right of self-help.
Differences in response to European rule
The distinctions we have noted between the two
categories into which these eight societies fall, especially in the kind of
balance characteristic of each, are very marked in their adjustment to the rule
of colonial governments. Most of these societies have been conquered or have
submitted to European rule from fear of invasion. They would not acquiesce in
it if the threat of force were withdrawn; and this fact determines the part now
played in their political life by European administrations.
In the societies of Group A, the paramount ruler is
prohibited, by the constraint of the colonial government, from using the
organized force at his command on his own responsibility. This has everywhere
resulted in diminishing his authority and generally in increasing tine power
and independence of his subordinates. He no longer rules in his own right, but
as the agent of the colonial government. The pyramidal structure of the state
is now maintained by the latter’s taking his place as paramount. If he
capitulates entirely, he may become a mere puppet of the colonial government.
He loses the support of his people because the pattern of reciprocal rights and
duties which bound him to them is destroyed. Alternatively, he may be able to
safeguard his former status, to some extent, by openly or covertly leading the
opposition which his people inevitably feel towards alien rule. Very often he
is in the equivocal position of having to reconcile his contradictory roles as
representative of his people against the colonial government and of the latter
against his people. He becomes the pivot on which the new system swings
precariously....
In the societies of Group B, European rule has had
the opposite effect. The colonial government cannot administer through
aggregates of individuals composing political segments, but has to employ
administrative agents. For this purpose it makes use of any persons who can be
assimilated to the stereotyped notion of an African chief. These agents for the
first time have the backing of force behind their authority, now, moreover,
extending into spheres for which there is no precedent. Direct resort to force
in the form of self-help in defence of the rights of individuals or of groups
is no longer permitted; for there is now, for the first time, a paramount
authority exacting obedience in virtue of superior force which enables it to
establish courts of justice to replace self-help. This tends to lead to the
whole system of mutually balancing segments collapsing and a bureaucratic
European system taking its place. An organization more like that of a
centralized state comes into being.
A polity taken to be characteristic
of simple societies is the chiefdom. This is considered to be a body of people
united by ties of kinship under the leadership of a senior member of the
leading clan. Flowing from their genetic links, the people share a common
language, culture and law .[64]
Simple societies are generally
believed to be traditionalist and static, a view that can be directly
attributed to the theory of evolution. Connected with this is the belief that
simple societies are unable to develop of their own accord, and that any
changes that do occur are random, unplanned and imposed by extrinsic forces.
All these ideas have a certain geographic dimension: simple societies are rural
phenomena, whereas the complex society is a product of urbanization. Customary
law has inevitably been associated with backward, rural regimes; with them, it
is locked into an unchanging past.
(c) Tribe
The tribe as a unit of study has
provided the parameters for most works on customary law.[65]
In anthropological parlance, Africans south of the Zambezi belong to one large
unit designated the ‘Southern Bantu’. These people are supposed to have a
common historical origin further to the north; they have many :linguistic
similarities, (see the diagram of the distribution of languages opposite); and
most importantly they share a culture, marked by such features as a patrilineal
system of succession and the giving of bridewealth.
People south of the Limpopo have
been further classified into two broad categories: the Nguni and the
Sotho-Tswana. (Neither of these appellations is necessarily used by the people
themselves; they are terms of convenience attributed by colonial historians,
administrators and anthropologists.)[66]
The Nguni occupy the eastern coastal plain of southern Africa, broadly the area
from Swaziland southwards to the Great Fish River. A distinctive mode of
dispersed residence, a strictly exogamous regime for marriage, and above all a
certain linguistic uniformity (despite numerous differences of dialect) are
common characteristics. Using the same cultural and linguistic criteria, the
Nguni are further divided into a northern group, comprising broadly the Swazi
and Zulu
kingdoms, and
a southern group, comprising a loose association of chiefdoms: the Xhosa,
Pondo, Bhaca, Pondomise, Thembu, Bomvana, Mfengu.
The Sotho-Tswana peoples inhabit the interior plateau. In contrast to the
Nguni, they live in more concentrated settlements (or towns) and they have a
system of preferred cousin marriage. The Tswana chiefdoms are located mainly on
the dry savannah bordering the Kalahari, although the people are scattered
throughout the Orange Free State, northern Cape, Botswana and Transvaal. The
Sotho are divided into two branches - Northern and Southern - again principally
on geographic grounds. The Southern Sotho can claim as a heartland the historic
kingdom of Lesotho; the Northern Sotho, constituted mainly by the Pedi and
Lovedu, are located in the northern Transvaal.
Somewhat neglected in this classification are three
peoples of the Transvaal: the Tsonga, Ndebele and Venda. The following extract
describes in some detail how the Tsonga ‘tribe’ was constructed over a
hundred-year period, despite the absence of any significant unifying features,
such as culture, language or polity. This type of historical research has
placed in question many previous assumptions made about southern African tribal
groupings.
[9] HARRIES in
VAIL CREATION OF TRIBALISM IN SOUTHERN AFRICA 83-107
The
Migration of Tsonga-speakers
In the early
nineteenth century people who were later to be defined as Tsonga-speakers
occupied the whole of Mozambique south of the Sabi river except for the
enclaves of territory surrounding and immediately to the south of the town of
Inhambane. For the major part of the century the chiefdoms to the north of
Delagoa Bay fell under the hegemony of the Gaza Nguni; those to the west of the
bay were heavily influenced by the Swazi; while the Zulu dominated the
chiefdoms to the south of the bay. All three states incorporated, both
politically and culturally, many of the people living on their borders who
spoke language forms later to be classified as Tsonga. These people,
particularly traders and hunters from the areas around Inhambane and Lourenço
Marques, had for many years operated in the high and lowveld areas to the west
of the Lebombo mountains. Here their commercial skills, rites, customs and
organization bound them together and, together with their foreignness, singled
them out as a distinctly separate group. But it was only in the second quarter
of the nineteenth century that coastal peoples settled the area that was later
to become the northern and eastern Transvaal in a purposeful way.
During the 1820sa number of Nguni refugee groups
fleeing from the disturbances in Natal associated with the growth of the Zulu
state passed through southern Mozambique. In the late 1830sone of these groups,
led by Soshangane, took advantage of a decline in Zulu power following the
battle of Blood River and reoccupied the fertile lower Limpopo. According to
missionary historians who gathered evidence a half-century after the event,
Soshangane’s return to the south initiated a “general exodus” of people living
between the Nkomati and Limpopo rivers. The refugees travelled along the trade
routes flanking two rivers, the Olifants and Limpopo-Levubu, that passed
through the thinly populated lowveld and gave access to the healthier,
well-watered areas to the west. The second major wave of immigrants entered the
Transvaal as a result of the Gaza civil war and ecological upsets of 1858-62.
Raids into the coastal and northern Delagoa Bay hinterland by the defeated
heir to the Gaza throne and his Swazi allies continued into the 1870s, causing
the movement of people into the Transvaal to continue unabated. The flow of war
refugees was continually augmented by people fleeing from natural upheavals
such as drought, famine and smallpox.
These immigrants settled under virtually every chief
living on the escarpment and eastern highveld. Although they often shifted
their political allegiances, they were welcomed by chiefs to whom they paid
tribute in labour and in goods. They were attached to homesteads as individuals
or, as small groups under their own headmen, were scattered throughout the
veld, colonizing those areas where human and animal diseases, poor soils of
water had previously restricted settlement. Coming from a different ecological
area, East Coast immigrants introduced new types of food such as fowls,
cassava, certain of groundnuts, various grain and potato strains and, especially,
maize. These new foodstuffs, together with their techniques of preparation and
cooking, served as cultural markers that defined these displaced people, in the
eyes of the autochthonous population, as outsiders. Chiefs competed with each
other to attract these East Coast immigrants by offering them security and
access to a means of production....
By the 1860sfour small semi-independent clusters of
East Coast refugees had begun to emerge in the Transvaal. The middle and lower
Levubu river was largely settled by members of the Maluleke clan who were
perennially under Gaza hegemony. The heterogeneous population in the Spelonken
hills accepted the overlordship of Albasini and his chiefs. To the south the
other major groups, consisting mainly of Baloyi and Nkuna clan members, lived
in the Haenertsberg under various North Sotho-speaking chiefs. Smaller
settlements, many of whose members were described as “Hlangaan”, developed to
the south of the Olifants river around Pedi, immigrant Boer and Swazi
communities. The discovery of alluvial goldfields in this area in the
1870sattracted large numbers of coastal immigrants who settled as labour
tenants on company lands surrounding the mining villages. The final major wave
of East Coast refugees, consisting of several thousand Gaza Nguni, settled in
the eastern and northern Transvaal in 1897following their defeat in the second
Luso-Gaza war. In the twentieth century the movement of Mozambicans into the
Transvaal, drawn by better living conditions, continued unabated despite a
legislative attempt in 1913to restrict this immigration.
By, the early twentieth century East Coast immigrants were scattered
throughout the northern and eastern Transvaal; many barriers divided them from
each other and, although they tended to settle in low-lying areas and river
valleys, no natural frontier separated them from their neighbours. Even where
borders can be distinguished, immigrant communities were surrounded by wide
belts of mixed settlement, and islands of linguistic minorities existed1 on
both sides. In 1896a northern Transvaal newspaper remarked of the immigrants
from the East Coast that they were “an admixture of refugees . . . they have no
recognized king, but subject themselves to the most wealthy, who (assumes it-he
leadership under the title of induna or headman”. It is ironic that the
geographically diffuse and politically amorphous form of settlement practised
by these nineteenth century immigrants was also recognized by N J van Warmelo,
the government ethnologist who was later to play a leading role in their
definition and delimitation as a “population group” with its own “homeland”. In
1937 he wrote that:
“the Tsonga-speaking
refugees came over the border in small parties and settled down wherever they
could. Very often they became the subjects of Sotho and Venda chiefs and,
though the tendency to reassemble and live together was there, they usually
failed to’ muster sufficient strength to form tribes of any importance.”
Even to use the term “Tsonga-speaking” with reference to nineteenth
century is misleading as it invokes an erroneous linguistic unity. No single
language linked the early East Coast refugees who were settled throughout the
northern and eastern Transvaal. Instead, they spoke a rich variety of language
forms that reflected their diverse geographical origins. The codification and
categorization of Tsonga as a language was only, undertaken at the end of the
nineteenth century by missionaries who, trained to categorize and classify
national groups and characteristics according to language, reified this
linguistic category into an ethnic group-into a “tribe”.
thro or lack
area, kinds
Missionaries and the
Definition of the “Tsonga Tribe”
During the nineteenth century a number of popular stereotypes were
applied in a rough way’ to those people living in, or originating from, the
region east of the Lebombos and north of Zululand. The term “Tonga” entered the
English language as a borrowing from the Zulu who used it in the nineteenth
century to refer to all the conquered peoples of the coastal areas north of
Zululand. It was used in a similarly pejorative way by several chiefdoms in
southern Mozambique, at least one of which was later to be classified as
Tsonga-speaking.... Despite the imprecision with which the Zulu used the term,
the Natal colonists adopted the word as a general term applied to those people
living along the coast north of the Zulu border regardless of their actual
linguistic or cultural affiliations. Because of the derogatory overtones with
which the term was imbued, however, it was never used by the people to whom it
was applied. It was only in the twentieth century that linguists expurgated the
abusive connotations from the term, initially by introducing an aspirated /h/
and finally by adopting the term “Tsonga”.
The Portuguese at Lourenço Marques distinguished
between intrusive Vatua or Nguni-speakers and the indigenous Landims, a
practice that has led some historians to view the terms “Tsonga” and “Landim”
as synonymous. In the Transvaal, East Coast immigrants were given various
general labels by the people with whom they came into contact such as
“Knobnoses”, given to them by Europeans because of the distinctive nasal
cicatrization practised by some of the coastal peoples, and “Gwambas”, a term
applied by indigenous Africans living in the Zoutpansberg and Spelonken hills.
This label, initially derived from the name of a chief near Inhambane whose
followers had traded in the northern Transvaal, had evolved into a synonym for
“easterner”. On the diamond and gold fields, “East Coasters” were also called
“Shangaans”, a term that, correctly used, should be applied to those people who
adopted the material culture of the Gaza Nguni chief Soshangane. Thus, in
present-day South Africa, only the descendants of the Gaza Nguni immigrants who
entered the eastern Transvaal after the second Luso-Gaza war of 1897, are
officially classified “Shangaan” or “Tshangana” and in this way distinguished
from the descendants of earlier immigrants, the Tsonga, who were in most cases
never under Gaza rule. Yet the word “Shangaan” has become an all-embracing term
used to refer to the Tsonga-speaking peoples of southeast Africa and, in a more
general way, to all Mozambicans employed on the South African mines. It is
obvious that during the nineteenth century these terms were used in a generic
and popular way to embrace diverse peoples and chiefdoms with no common name
and, as ethnographic terms, they are of very little value.
A far more scholarly attempt to delineate an ethnic
group emerged at the end of the nineteenth century out of a heated debate
within the Swiss mission over the linguistic relationship between their
followers in the Transvaal Spelonken and those living on the East Coast.... One
of the first steps taken by the Swiss missionaries to ease their work was to
reduce the various dialects spoken by the East Coast refugees amongst whom they
lived to a single written language. This resulted in the publication in the
early 1880s and early 1890s of a language primer and several religious
works in a lingua franca which the. missionaries named “Gwamba”. In
compiling this language the missionaries had been strongly influenced by the
northern Delagoa Bay dialect spoken by their assistants and by most of the
immigrants in the Spelonken.. . .
To avoid being viewed as foreigners from the north,
or “Karangas”, Henri A Junod, one of the missionaries in the Lourenço Marques
area, started to codify another local lingua franca which he called
“Ronga”. In 1894Junod produced a basic Ronga reader and over the following
three years he completed a grammar and collection of folktales and an extensive
ethnographic work on what he then referred to as “the Ronga people”. It was
this division of the “Ronga”, both linguistically and socially, from the “Gwamba”
in the Spelonken area that sparked off the debate within the Swiss mission over
how to categorize the people among whom they worked....
After spending several years in the Transvaal, Junod
published in 1907an Elementary Grammar of the Thonga/Shangaan Language, which
marked the abandonment of the geographically and politically imprecise term
“Gwamba”. . . . Within a few years distinct Ronga and Thonga/Shangaan (formerly
“Gwamba”) written languages had been established on the basis of separate
grammars and orthographies. Ronga came to dominate southern Mozambique and
Thonga/Shangaan the northern Transvaal and central-southern Mozambique.
Meanwhile, American missionaries working in the Inhambane area delineated a
third related language which they named “Tswa”. Despite the de eat of the
movement calling for one written Tsonga dialect, the ideal of a single unifying
language is still expressed in missionary circles....
Encouraged by evolutionism and by Sir James Frazer,
the classicist-turned-anthropologist, Junod used the same schema to make sense
of the complex and confusing African world into which he had plunged. But to
make African societies fit the European pattern, he resorted to pseudo-history
by hypothesizing that at some time in the distant past, migrants originating
from different areas had imposed themselves on an earlier proto-Thonga people
and had adopted their language. Working from this shaky and, at best,
historically speculative premise, Junod saw language as the common thread
holding together the Thonga as a “tribe” or “nation”. By 1905 he ascribed the
“recognition of the Thonga as a tribe” largely to the work of the Swiss
mission. Seven years later in his two-volume Life of a South African Tribe, which
he published in English in order to reach an influential audience, he divided
the Thonga into the “northern clans”, who spoke Thonga/Shangaan, and the
Mozambican Ronga who occupied the area south of the Nkomati river. Yet Junod
had never been to the southern half of what he defined as the Ronga area nor
had he visited the extensive Thonga/Shangaan area north of the Nkomati river or
that of the “Tswa” to the west and north of Inhambane. But because he
automatically associated language with culture he unconsciously imbued all the
people who spoke these two artificially defined languages with distinctive
social customs and traits. His distinction between the Ronga and
Thonga/Shangaan was not always clear and, consequently, many historians and
others have conflated them into a single Tsonga ethnic group. . . .
In fact, there was no “pure” Tsonga culture that
could be regarded as a uniform or static entity, for Tsonga-speaking immigrants
in the Transvaal did not come from a common cultural pool. The material culture
expressed by an individual was not static or “traditional”, nor was it bound by
linguistic affiliations. The cultural markers exhibited by Tsonga-speaking
speakers such as diet, tools, clothing, custom and language were, moreover,
market by continual adaptations to changing social and environmental
situations. The division of the people of southern Mozambique into various
linguistic sub-groups was therefore totally arbitrary and nowhere did they
present a common bounded and static linguistic entity.
East Coast traders, hunters and later waves of refugees
who entered the Transvaal at different times and from different areas brought
with them elements of various material cultures which were, because of their
foreign origin, distinguishable from local cultures. But here again, these were
factors of exclusion rather than cohesion and the line became blurred as
Tsonga-speaking immigrants adapted themselves to their new surroundings. Long
distance migrations demanded that fish- or beef-eaters who moved westwards into
dry, riverless or tsetse-ridden areas of the Lowveld were obliged to
adapt their diet and production strategies to the new environment. In an
attempt to assimilate to local norms, some Tonga-speaking immigrants attended
initiation lodges run by host chiefdoms while others adopted local totems. Some
continued to practise circumcision which on the East Coast had largely been
abandoned by those chiefdoms dominated by Nguni-speakers. Their music was
influenced to differing degrees by the Pedi and by people today classified as
Venda, Lovedu, Chopi and Ndau, many of whose instruments they have adopted.
Many Tsonga-speakers were incorporated, through the ideology of kinship, into
host clans in the Transvaal, alongside whose members they constituted a single
production unit. This process of individual assimilation was so advanced that
it led one anthropologist to speculate that an entire Venda-speaking clan had
its roots east of the Lebombos, while another believed that the Tsonga-speaking
Baloyi clan had once spoken a Shona-based dialect. An ecologically symbiotic
relationship also existed between Tsonga-speaking agriculturalists who
colonized malarial and tsetse infested river valleys and plains and the
cattle-keepers living above the valley.
As long as male immigrants stressed their
independence by clinging to foreign customs, especially those that were
related to sexuality, such as puberty rites and marriage patterns,
intermarriage with local people was generally precluded. As outsiders who
practised “barbarous” customs and spoke the local language badly, they were
considered inferiors and classified as such by being labelled “Tonga”. For
immigrants to benefit fully from the patronage of members of the host clan they
had to resort to fictive filiation and suffer the exploitation as junior
members that this often implied. When immigrants arrived in a group under their
own chief, however, their position was far stronger and they were more likely
to maintain their distinctive material culture.
The cultural boundaries first defined and established
by missionary anthropologists at the turn of the century have been extrapolated
back into the past by historians who see "the Tsonga” as a primeval ethnic
group occupying a large part of south-east Africa....
The African Mode of Self-Identification
In reality, however, the Africans conceptualized the
structure and order of their world in an entirely different way. The basis of
African political and social life was the chiefdom. This grouped together
members of the same productive unit and was dominated by the members of one
clan. Membership of the clan was expressed through the use of a common
patronymic, or shibongo, through which an individual identified himself
as a member of his clan leader’s house. Outsiders who professed fealty to the
clan leader or chief defined themselves as being “from the land of” their host
clan while the latter’s unifying ideology of agnatic descent provided for their
gradual incorporation through the adoption of the clan patronymic. Junod
referred to the chiefdom, or tiko, as “the true national unit” in which
political identity was rooted.
Various symbols bound the members of the chiefdom
together and distinguished one chiefdom from another. Foremost amongst these
was the institution of chieftaincy, for the chief, as the believed direct
descendant of the founding ancestors and as the senior member of the kin group,
was the embodiment of clan unity and the centre of its corporate identity. He
administered a form of justice that was entirely based on the moral community
of the clan and the chiefdom, protected the army with his war medicines,
interceded with the clan ancestors and generally regulated production
strategies. The chief gave to his followers a sense of belonging and unity by
using symbols of office that were believed to invest him with special powers
and by organizing various rites that were limited to clan members, such as
first fruit ceremonies and entry to the age regiments. The cohesion of the
clan and the differences between clans were accentuated by marriage patterns which
stressed clan endogamy, by the accreditation to each clan of a separate area of
origin and migration and by particularities of dialect....
Tsonga-speaking chiefdoms in the Transvaal remained
small and independent of one another and manifested no tendency to grow through
conquest. But the roots of ethnic consciousness cutting across the divisions of
clan and chiefdom may be discerned by the beginning of the twentieth century.
Clan endogamy had broken down entirely in areas of the Transvaal like the Spelonken
where large numbers of refugees had gathered. Men were meeting and working on
the mines and plantations as “Shangaans” and “Tongas” and literacy in
Thonga/Shangaan, although limited to a small number of people, provided
Christians and traders from different areas with a common means of
communication. But the vast majority of the population remained illiterate and
the individual’s world remained largely a. small personal one, limited to the
chiefdom with whose members he or she shared symbols and rituals that gave
meaning to their lives. Poor communications and a limited area of social and
economic exchange further restricted the development of a political
consciousness extending beyond the clan and chiefdom. What defined the Tsonga
in the final instance were their neighbours. The
Tsonga/Knobnoses/Gwamba/Shangaans, as their various neighbours called them,
only took on or adopted an ethnic identity later in the twentieth
century. This new identity emerged as a result of the politicization of the old
classificatory ethnicity-a politicization that was the product of the new
economic infrastructure introduced by capitalist development....
The Waning of Chiefly Power
In frontier areas like the Zoutpansberg, where the
ratio of blacks to whites in the first decade of the twentieth century was
estimated at 100 :1 and where a police force of fifty had to cope with a
population of over 300,000, chiefs had of necessity performed the role of paid
civil servants. They were obliged to help collect taxes and supply labour for
public works and farms and prevent what the government declared to be poaching,
the destruction of state forests and the consumption of illicit liquor. Native
Commissioners were unanimously opposed to the detribalization process as the
chiefs “were of great assistance in maintaining law and order”. . . .
This perspective dovetailed with that of ethnologists
and evolutionist anthropologists such as Henri Junod who feared that
urbanization and the loss of chiefly control would lead to the “demoralization”
and “degeneration” (i.e. proletarianization) of the African population....
Emerging from the same mould, the young liberal segregationist Edgar Brookes
supported the creation of reserves in which Africans could “develop along their
own lines and under their own chiefs”. At a time when 60 per cent of the
African population lived as tenants on white farms or in the cities of South
Africa, it was nonetheless commonly believed that Africans lived in
“traditional tribes”! This historically static view was perhaps best expressed
in a handbook sponsored in 1934 by the South African inter-university committee
for African Studies, Isaac Schapera’s seminal collection, The Bantu Speaking
Tribes of South Africa. Although this book claimed and probably achieved
the status of “a manual of South African ethnography”, the introduction frankly
stated that “the greater part [92.5 per cent] of the book is devoted to an of
the Bantu as they were before affected by the intrusion of white ion”. Like
Schapera, Junod hoped that his work would influence native traitors to
understand the exoticisms of tribal life.
At the ideological level the Native Affairs
Department was strongly influenced by this strain of anthropology. Members of
the Department established compilations of “traditional laws” by drawing
borders that were ethnically conceived around regularities of rite and custom.
At the economic level they became increasingly aware of the need to conserve
within the reserves the elements of non-capitalist society that bore a large
part of the costs of the reproduction of the urban labour force.... To check
this process, various laws were passed in the 1920s in an attempt to bolster
the powers of the chiefs and preserve “the tribes”. In many cases, this
amounted to creating chiefdoms where none had previously existed.
The 1936 Natives Trust and Land Act “released” large
areas of land in the northern Transvaal for African settlement. All “scheduled”
and “released” land was henceforth to be purchased on a tribal basis and a
“Trust fund was established “to acquire land for and on behalf of specific
tribes in order to provide necessary extensions to the tribal locations”.
People forced off white farms by the anti-squatter section of the act would be
settled under chiefs in these areas. Chiefs were also given the power to levy
special taxes on their followers for the purchase of tribal land. They remained
a central element in Native Administration: in 1938 the Native Affairs
Commission recognized that:
“hereditary
chiefs with their headmen are the instruments through which native
administration works. Without their assistance it would be very much more
difficult and, very much more expensive to maintain the customary law and order
and respect for authority which characterizes the Bantu rural population.”1
But
attempts to bolster the power of the chiefs were not merely aimed at
strengthening the Native Affairs system; they were also, perhaps primarily,
aimed at supporting the chiefs whose political power was increasingly
threatened by the rising African petty bourgeoisie....
Land alienation, together with tenant and freehold
forms of African land tenure had undermined the chiefs’ major source of
political power: their ability to control the distribution of land. Opposition
from white farmers to the sale of land released by the 1936 act continued to
deprive the chiefs of any real power. As the Native Affairs Commission
complained in 1938, “the authority of the chiefs and respect for tribal
institutions is under continual attack owing to the landless condition of the
head of the tribe. This ... militates against the maintenance of that necessary
tribal unity and control which it is the policy of the state to foster.” The
popularity of the chiefs had also declined: much of the democratic element in
chieftaincy as an institution had disappeared when the size of the chiefdom was
petrified and chiefs became civil servants appointed by and responsible to the
Native Affairs Department rather than to their own followers....
The Consolidation of a Tsonga/Shangaan Ethnic
Awareness
As the chiefs lost their power of protection and
patronage, the chiefdom and clan declined as a focus of political
consciousness....
The petty bourgeoisie emerged as an alternative
source of political leadership to that of the chiefs.... The ethnic
consciousness expressed by the Tsonga-speaking petty bourgeoisie tended to be a
defensive reaction to the politicization of ethnicity.... The ‘assertiveness
expressed by numerically larger and politically more centralized and confident ethnic
groups such as the Swazi and Zulu surged forward in the late 1920s and early
1930s. Encouraged by white segregationists, this ethnic assertiveness found
expression at all levels of African society and threatened to marginalize
disparate and unorganized peoples such as those considered to be “Tsongas”.
Ethnicity had to be (mobilized to maintain the balance of power within the
African nationalist movement. The ‘rise of ethnic awareness also indicated a
shift in the awareness of the petty bourgeoisie away from politics at the
national level, with its more abstract concern for civil rights, (towards local
issues. These had become of crucial importance because of the extreme social
‘and economic dislocation in the rural areas caused by proletarianization and
betterment schemes. Tsonga-speakers also laboured under the very real fear,
first expressed at the time of the land commissions, that, as immigrants into
the northern Transvaal, they did not have a secure historical tenure to their
land. They were subject to attacks such as that ‘made by a Venda headman when
addressing the Eastern Transvaal Natives’ Land Commission in 1916:
“You
must take no notice of these Shangaans. They are no good. We are Bawendas here.
These Shangaans came to the country.... You must remove the Shangaans. There
will not be enough room [for us both]. Take the Shangaans away.”2
Tsonga-speakers were not the product of a military
tradition and had no paramount chief to represent their interests, factors
which made them inferior to the more politically centralized ethnic groups in
the eyes of many whites and blacks. Consequently, Tsonga-speakers were divided
by the Native Affairs Department into administrative districts dominated by
Venda or Northern Sotho chiefs, while within the black urban areas they were
marginalized as a minority group....
The Role of the Apartheid System
In 1948 the Afrikaner National Party came to power
with a policy aimed at transforming the reserves into African homelands. In
numerous speeches, the new government’s ministers stressed the central role of
the chief and tribe in the implementation of apartheid in the rural areas....
The
first step was the passage of the Bantu Authorities Act of 1951 which bolstered
the power of he chiefs by modernizing and expanding their tax basis to include
all the members of the tribal authority. This gave the chiefs a new element of
patronage through their cont of the tribal account and through their
participation in the decisions of the Regional Authority. . . .
The Bantu Authorities Act of 1951 did not affect the
ethnically heterogeneous nature of the population living in the northern
Transvaal reserves. A Tsonga homeland was not envisaged and Tsonga-speaking
Tribal Authorities were grouped administratively in Regional Authorities,
dominated by Venda and North Sotho-speakers in, respectively, the northern and
eastern Transvaal. The first move towards an ethnic segregation of the area
came from a number of northern Tsonga-speaking chiefs who felt their Regional
Authority was dominated by Venda-speaking chiefs.... But it was only in 1959
with the promulgation of the Bantu Self-government Act that Pretoria asserted
that “The Bantu people of South Africa do not constitute a homogeneous people,
but form separate national units on the basis of language and culture.” This
act formally declared the “Shangan /Tsonga” to constitute a “national unit” and
allowed the government to accede to the Tsonga chiefs’ wishes for a separate
homeland. Four Regional Authorities dominated by Tsonga-speakers were then cut
out of the old multi-ethnic regional authorities in the northern and eastern
Transvaal and in November 1962 they combined to form the Matshangana
Territorial Authority. Seven years later a Tsonga-Shangane commissioner-general
was installed and a legislative assembly was opened at the newly-constructed
capital at Giyani.
The segregation of the rural areas into
ethnically-defined units was paralleled by similar movements in the urban
areas. In Johannesburg, culturally mixed communities like Sophia town were torn
down and replaced by townships, like Soweto, that were built on an
ethnic grid.... Thus apartheid blocked the process of social integration and
cultural hybridization that had emerged as the economy required a
geographically mobile African workforce. Under apartheid, the movement to the
towns, both spiritual and material, was increasingly directed along ethnic
conduits.
The government’s new divide-and-rule policy ...
generated bitter ethnic conflicts over local resources, for in the early 1960s
the northern Transvaal reserves remained crushingly overpopulated and
overgrazed....
In 1973, the year that the Territorial Authority
became the “self-governing” Bantustan of Gazankulu, the delineation of one of
its southern borders led to threats of war being made in the Giyani legislature
against the Northern Sotho of the Lebowa Bantustan. Further ethnic hostility
arose over the allocation of the eastern Transvaal Shiluvane mission hospital
to Gazankulu in mid-1981....
Notes
1.
Quoted by Morris in H Wolpe (ed) The Articulation of Modes of Production 230.
2.
Evidence before Natives’ Lands Commission UG
22-1916 p 70.
Revisionist historians have produced an entirely new version of
preconquest and colonial history in southern Africa. They have shown, for
example, that much of the writing on Zulu and Sotho origins was based on the
work of A T Bryant, the missionary and author who collected Zulu oral
traditions in the fifty years after 1883.[67]
Now it is thought that his work is flawed both in detail and in its larger
conception.[68]
And, in retrospect, the idea of a neatly bounded tribal unit seems
unconvincing. Given the rapid and often violent change that marked southern
Africa in the last two centuries, cultural and political boundaries must have
been imprecise and permeable.[69]
As a scientific concept, tribe has been completely
discredited because it is both vague and misleading. On the one hand, the
criteria used to define it are so various (language, political affiliation,
culture, ethnicity, genetic association, etc) that it has no value left for
analytical purposes;[70]
on the other hand, the government has intervened so often to amalgamate, divide
or constitute tribes (and to appoint tribal authorities) that the current
‘tribes’ may bear little or no resemblance to the groups originally found here.[71]
Finally, bound up with the concept of tribe, is the
idea of ‘tribalism’. This connoted, in a negative sense, the primitive and
barbaric, in a positive sense, the simple and uncorrupted. Both meanings have
been influential in government policy, the first during the early days of
colonization, the second from the 1920s onwards.
‘The
glorification of tribalism and all the old customs, precisely because they are
old, a kind of twentieth century adaptation of the “noble savage” theory, has
had direct effects upon the Union Native Policy, for here what I have called
the “Anthropological School” came into immediate contact with life. It stands
behind many of the provisions of the Native Administration Act of 1927, by
which the chief has been made an important part of the administrative
machinery. One of the chief complaints made against the Act has been that it
tends to assimilate all Natives to the position of Tribal Natives in the
Reserve. Others may exist, they may even form the majority, but they are an
embarrassing phenomenon. They do not live as the social anthropologist thinks
they ought to live. They do not think on the lines which the Department
considers suitable for natives.’[72]
State
policies in South Africa have rested on a triad of concepts: culture, tribe and
chiefdom. Racial differences originally provided the occasion for territorial
segregation under the Black Land Act.[73]
Subsequently, the land set aside under this Act (the ‘reserves’) and the later
Development Trust and Land Act[74]
formed the core of the apartheid ‘bantustans’, which were to become the
‘homelands’ of the future. Segregation also required separate political
institutions for Africans: thus the African franchise was scrapped[75]
and a bantustan political structure was created, in which chiefs were given
most of the power.[76]
The corollary of these enactments was the Promotion of Black Self-Government
Act,[77]
which established eight African national units and provided for the development
of their self-government and ultimate independence. For the purposes of the
Act, the entire African population was divided into eight (later nine) tribal
units, each one being allotted a portion of the reserves as its ‘national
homeland’: North-Sotho (Lebowa), South-Sotho (Qwaqwa), Swazi (Kangwane), Tsonga
(Gazankulu), Tswana (Bophuthatswana), Venda (Venda), Ndebele (KwaNdebele),
Xhosa (Transkei and Ciskei) and Zulu (KwaZulu).[78]
This multifaceted programme was justified, particularly for the sceptical
international audience, by the right of cultural self-determination.
‘South Africa is in fact and in the first place a multi-national
country, rather than a multi-racial country. Apart from the South African
nation of European stock, the country comprises the homelands of a number of
other nations. These have their own separate identities, each with its own
undeniable right to separate nationhood in a land which, too, has been its own.
I am, of course, referring to the various Bantu nations, differing from one
another in language, culture, tradition, and in everything else that determines
national identities, rights and aspirations. . . . We must bring about a
situation where peaceful co-existence of the various nations in our country
will be possible. We believe that this can be achieved only by the independent
development of each of these peoples towards the full realisation of its
separate nationhood and the recognition of the right of each nation to govern
itself in accordance with its own national tradition and aspiration.’[79]
The division
of the South African population into different ethnic groups, long regarded as
obvious and somehow natural,[80]
is now being challenged on many fronts..
[10] LYE &
MURRAY TRANSFORMATIONS ON THE HIGHVELD 20-2
Does
the phrase Sotho-Tswana society have any meaning? The Sotho-Tswana today are
distributed across several international boundaries. They are at present
subject to the administration of six governments: those of Lesotho, Botswana
and South Africa; of the newly “independent” Transkei and BophuthaTswana; and
of QwaQwa, the Southern Sotho “homeland”. They are peasant cultivators,
commercial livestock farmers, urban commuters. They are Christians and traditionalists,
they are down-to-earth country people and sophisticated townspeople. Many of
them spend their working lives as migrants who oscillate between their rural
homes and employment in the “white” urban areas of South Africa, in the mining,
manufacturing, construction and service industries. Many of them are
unemployed, and their families have the greatest difficulties in making ends
meet. Differences of this kind are found within the population of Southern
Africa as a whole. “Therefore there is no bounded set of social relationships
today that we can usefully identify as Sotho-Tswana society. Many years ago
Isaac Schapera, the anthropologist who is best known for his exhaustive
historical and anthropological studies of the Tswana, insisted that chief and
district administrator, missionary and medicineman, trader and teacher, migrant
miner and peasant, all had to be studied as participants in a single social
system, that of Southern Africa as a whole. We share this view. It poses the
problem of what perspective is appropriate for seeking to understand the
experience of the Sotho-Tswana, defined as a minority population within
Southern Africa.
Let us briefly outline
two possible approaches. Neither is adequate in itself. One approach would be
to reconstruct, from oral tradition and written sources, a social system which
no longer exists but which may be considered approximately representative of
the Sotho-Tswana tradition. The unit of analysis would be a tribe or a
chiefdom, an independent polity having its own territorial base, a hierarchy of
hereditary offices, and a relatively self-sustaining economy based on livestock
and crop cultivation, with some trade and craft specialisation such as
iron-working. We would discover high rates of polygyny - men marrying several
wives-among the ruling families; preferences for marrying women defined as
cousins in kinship terms; rituals of kinship for propitiating the ancestors and
marking births, marriages and deaths; communal rituals for initiating the
youth, for invoking the rain and for ensuring protection from malevolent
powers; and elaborate social arrangements for ensuring the transmission of
property, office and tradition from generation to generation.
An
alternative approach would be to develop a perspective within which to
understand the lives of Africans who live in the rural areas of Southern
Africa. We would describe and analyse conditions which are not peculiar to the
Sotho-Tswana peoples but which are typical of the labour reserves from which
migrant workers are drawn to meet the needs of South African industry. These
labour reserves are the black “homelands” within South Africa itself, including
the Transkei and BophuthaTswana; the independent kingdoms of Lesotho and
Swaziland, and the Republic of Botswana. Southern Mozambique and Malawi may
also be included as historically important suppliers of labour to the mining
industry. Collectively these areas comprise what may be called the rural
periphery of Southern Africa, by contrast with the industrial core where
migrants are employed - the mines of the Witwatersrand, the Orange Free State
and Natal - and the heartlands of secondary industry: the major conurbations of
the Pretoria-Johannesburg-Vereeniging complex, Durban, Port Elizabeth and Cape
Town. The terms rural periphery and industrial core are analytically convenient
because they enable us to transcend the boundaries of nation-states when
seeking to understand the regional economy of Southern Africa. The flow of
migrants across these international boundaries on a large scale makes it
impossible to understand the economy of any one of these countries in
isolation.
Because of South African influx control and pass laws, migrant workers’
families remain behind in he rural areas, where many live in overcrowded squalor
and where they seek to scrape a partial livelihood from exhausted and
over-grazed soils. Our analysis would focus on the relationships between
migrants and their dependent families, and on the consequences for the elderly,
the young, the sick and the unemployed of general dependence on the earnings of
absentees. We would find a gross imbalance between the sexes in the rural
populations -women far outnumber men, especially amongst young and middle-aged
adults. Family life is ravaged by the separation of spouses and the absence of
fathers. There is a crisis of security in old age. The energies of the vast
majority of people to sheer survival under difficult conditions. We would
also find evidence of differentiation between rural households - most people
are poor, but some are poorer than others.
The challenge in presenting an account of the Sotho-Tswana today is to
integrate these aches. They would appear to have little in common. No
traditional chiefdoms pendent political entities, with the partial exception of
Lesotho. It is impossible to conceptualise a Sotho-Tswana economic system
today, for the Sotho-Tswana participate, variously but inevitably, in the
regional economic system of Southern Africa as a whole. But custom seldom
merely dies. Some aspects of it are undermined with the passage of time. Other
aspects of it are invigorated. Social relationships do not merely wither away -
they are transformed. The Sotho-Tswana still engage in disputes within the
framework of customary law, and rationalise their behaviour with reference to
the morality of their grandfathers. They have also acquired new values - with
education, with Christianity and the habits of an urban consumer life-style.
New forms of religious behaviour have partly replaced the old forms, but the
new idiom is often inspired by the old idiom. Many of the younger generation in
Lesotho still go to initiation schools. Other Sotho-Tswana despise these
schools as relics from the past.
The object of our study is therefore the transformations that have taken
place in economic, kinship and ritual relations. Much of Sotho-Tswana custom
persists. In this sense people remain, in Setiloane’s phrase, “stubbornly
Sotho-Tswana”. But it is misleading to represent the persistence of custom as
cultural bedrock impervious to change. The changes in people’s lives are
themselves fundamental. Rituals for the ancestors persist, even amongst members
of Christian congregations. Many Sotho-Tswana, both rural and urban, continue
to perform their customary obligations in this respect, and fear the mystical
consequences, in the form of illness or misfortune inflicted by the ancestors,
of failure to do so. The dead, in other words, are still regarded as moral
arbiters of relations among the living. Yet the pattern of relations among the
living - between elders and juniors, between men and women - has undergone
significant change. This suggests that the relationship between ritual practice
and everyday life is a complex one. Likewise, the institution of bridewealth
persists among many of the Sotho-Tswana peoples. As will be seen, however, it
is not the same institution in the late twentieth century, as it was in the
middle of the nineteenth century. Accordingly the problem which recurs in the
later chapters is how to analyse the relationship of Sotho-Tswana custom to the
changing lives of the Sotho-Tswana themselves. We are particularly concerned
with those who retain their roots in rural communities.
(3) Language and
writing
A problem encountered in all cross-cultural studies is
the use of terms appropriate to describe the data. Language is not simply an
obstacle to comprehension; when conceived as a symbolic system representing
thought, it can be appreciated as the principal point of access to a foreign
culture: ‘social behaviour . . . is in large measure linguistic behaviour’.[81]
Language allows admission to a thought system and a people’s vision of the
world.[82]
When the field-worker’s objective is to record a
foreign system of law, the difficulties of language are compounded by the
technicality of legal terms. Western lawyers/anthropologists have always been
tempted to transcribe foreign data into a technical vocabulary, on the
assumption that the terms and concepts they use, are universal and
culture-free.[83]
Bohannan was a resolute opponent of this undiscriminating approach. He was
strongly influenced by an American school of ethno-linguistics, which contended
that a language predisposed its users to perceive and think in the categories
and relationships that were encoded into its vocabulary and grammar.[84]
Accordingly, Bohannan advocated discarding European legal terminology in favour
of ‘folk’ systems oflanguage and thought. By spelling out native concepts and
categories in detail and by using the appropriate vernacular terms, he
personally was able to expose distinctively Tiv conceptions of various
institutions, notably law and court.[85]
Gluckman then
entered. what was to become a widely publicized debate.[86]
[11] MOORE in
NADER LAW IN CULTURE AND SOCIETY 340-2
A
great deal of discussion between Gluckman and Bohannan takes place in the form
of an argument about what is a suitable language in which to describe another
people’s legal system. Bohannan argues that the vocabulary of English
jurisprudence is a vocabulary developed for talking about English law and is
unsuitable for the description of the folk systems of other peoples. His case
is that to describe another people’s system, one must spell out at length the
implications of native terms and categories in order to approximate as closely
as possible the indigenous system being examined, and then one must use these
native terms rather than substitute English equivalents. Then, and only then,
can one begin to think about making comparisons. This part of his argument
starts as an argument against an ethnocentric Anglo-American legal vocabulary.
Then he faces the difficulties inherent in trying to use indigenous
vocabularies when making comparisons. In his paper Bohannan proposes that this
problem may be dealt with in the future by means of a “new logical and
independent language”, and he suggests that Fortran or some other computer language
may be the most suitable medium into which to translate folk concepts for
comparative purposes. His argument is fundamentally that English legal terms
are so inextricably bound up with the content of English law that they cannot
be used effectively to describe another system. The number of redefinitions and
qualifiers that must be used to make a term of English law fit an alien legal
category is such that, in his view, it is less distorting and less confusing to
use certain key indigenous terms and try to describe their referents. This
last, since he is writing in English, he does in English words, but with an
effort to avoid technical legal terms as far as he can.
Gluckman
agrees that the first task of the ethnographer is to describe what Bohannan has
called the folk system. He also agrees that vernacular African terms sometimes
have no English equivalents, and that in such cases indigenous terms must
continue to be used after they have been explained in English. However,
where it is practical to use English out having to add too many qualifiers -
where, in short, there is a satisfactory equivalent or approximation - he not
only sees no objection to using English (or is the language of the
investigator), but also thinks it far preferable to do so. He argues that only
if the same term is used to cover the notions of diverse legal systems is it
possible to discuss where the notions in each system differ, as well as the
common elements across the systems. What Gluckman does, further, is to argue
that after the notions of an African legal system have been described, they can
be compared profitably with those of English law at various stages of its
development. Similarly, he also draws on the terms and Roman law and other
legal systems where they seem appropriate.
Presented in this way, there seems a
limited area of disagreement between the two. After giving and explaining
native terms, Gluckman is prepared to shift to terms of English law more
readily than Bohannan, and he has a strong interest in particular comparisons
of African with English legal notions that Bohannan does not share. Bohannan
explains in English and then continues to use more indigenous terms and makes a
studied effort to avoid terms of English law when he can. Both are acutely
aware of the difficulties of translation and definition in the task of
describing an alien legal system, and both realize that those difficulties are
multiplied when the level of analysis and comparison is reached.
The dispute about
terminology is incidental to a more profound difference of method. Bohannan’s
interest was in the way that cultures classify reality into categories;[87]
every culture has certain critical words/concepts in its language which the
ethnographer must communicate in order to give some understanding of the
culture being studied.[88]
Once these concepts have been discerned and understood, they may be compared
with like concepts in other cultures. Gluckman’s concern was different. He saw
words/concepts as tools within legal systems that could be utilized for
different purposes, not merely as reflexes of thought systems. He looked to
social and economic structures for the broader, underlying explanations of
legal concepts.[89]
To demonstrate this relationship, he used a comparative method, referring to
different legal systems embedded in like socio-economic structures.
Allot
proposed a compromise of sorts:[90]
the use of a simple, non-technical vocabulary which, while still consisting of
English words, was stripped of legalism. While this might serve the needs of
research workers well, it has not been adopted in legal circles.[91]
And, in courts applying common law, minimal use is made of vernacular
languages.[92]
The
problem of language goes far beyond difficulties of translation. A person
recording a system of customary law has to tap an oral tradition. Any testimony
given by an informant is no more than a ‘mirage of the reality it describes’;[93]
and the reliability of these sources is hardly up to the standards usually
demanded in western legal systems. In the first place, an oral tradition, which
implies an anonymous authorship, permits no method of checking what had
originally happened: the event is locked forever in an inaccessible past. In
the second place, there is the problem of memory. In preliterate cultures there
is a wide range of auditory mnemonic devices to monitor the accuracy of
transmission. These devices are largely ones of style or genre, and include
rhythm, metre, rhyme, etc. But such clear stylistic formalities, as
characterize epic poetry or saga, do not exist in the case of customary law.
With so few checks on the transmission, a number of divergent versions of the
same thing may easily be produced, each of greater or lesser reliability. In
non-western courts, such imprecision would not be a particular problem,
because, although law always involves a measure of continuity and thus demands
a relatively stable tradition, certainty is less important where conciliation
is the primary aim of litigation.[94]
The initial informant in an oral tradition gives, either deliberately or
otherwise, a partial account of what happened because he[95]
sees only some aspect of it and he places his own interpretation on it. This
testimony is coloured by his own personality, stamped by his private interests,
and set within a framework of reference provided by the society in which he
happens to live. The first testimony then undergoes alterations and distortions
by all other informants in the chain of transmission, down to and including the
very last one, all of them being influenced by factors similar to those working
on the first.[96]
The assumption has always been that writing was a transparent medium, allowing
the reader direct access to the experiences of the informant. Yet there is no
‘metalanguage’, no system capable of transcending language for the use of
objective description. Language is inherently metaphorical, ambiguous and
partial. Once this is realized it becomes evident that ethnographies have more
in common with literary creations than with scientific reports.[97]
In the court room precise norms have to be extracted from the mixed
repertoire of rules that constituted the oral tradition; and according to the
doctrine of precedent the rules chosen for the particular case have to be
preserved for later cases. In this manner the oral tradition is translated into
a written one, a process that involves a further distancing from the original
source.[98]
The encoding of law into writing is arguably the most
momentous event in legal history, stimulating, in Weberian terms, the
transformation of a ‘traditional’ order into a ‘legal’ one.[99]
Recent developments in jurisprudence and anthropology, in this instance
influenced by literature and linguistics, have come to focus ever more narrowly
on the significance of this event. Writing facilitates more objective
reflection on a society’s intellectual culture; it stimulates the
classification of ideas and a gradual systematization of rules. Hence writing
goes hand in hand with the development of a more ordered and rational legal
system.[100]
III THE RISE OF
CRITICAL LEGAL SCHOLARSHIP
(1) Customary
law in the Decade of Development
By the close of the 1950s
the African colonies were contemplating their independence. As part of the
decolonization programme, the Western powers pledged them aid for their
economic development, a goal that was universalized when it was taken up by the
United Nations: in 1961 the General Assembly proclaimed the First Development
Decade. The new states were aspiring to standards set in the industrialized
nations, which implied that development was an endeavour to transcend local
traditionalism in favour of western modernity.[101]
Customary law was generally considered as an obstacle
to these aims because it was inherently conservative.[102]
African systems of land tenure were a prime example: rural lands were still
under the control of chiefly authorities; the methods of farming were
technologically backward; and agriculture was oriented to subsistence.
Modernization required innovation and individual initiative but in Africa
these, requirements were hampered by the demands of kinfolk. The attachment to
the past and the population explosion were believed to be jointly responsible
for trapping people into a cycle of poverty, which in turn stifled the
enterprise necessary to generate capital needed for export growth. Customary
law - a symbol of the tribal past - had to be modified or abolished.[103]
Probably overriding even the desire for development
was the need for national unity. The new states were fragile polities
threatened by the tensions of linguistic, ethnic and religious diversity.
Customary law represented a tribal pluralism inimical to national unity. It
therefore had to be sacrificed in favour of a single, uniform legal system.[104]
On the other hand, customary law also stood for an
African consciousness that had nurtured and reinforced the sentiments of
African nationalism.[105]
Politicians could not afford to ignore its power as a cultural symbol.
These views were debated in the context of the then
current theories about development. The advanced industrial economies of the
West were regarded as exportable table commodities, and so too was the law that
facilitated them. This suggested that law was a type of technology, a value-free
instrument that could be used to change society.[106]Another,
complementary strand of thought, based on legal positivism, held that ‘good’
law was logical and coherent law regardless of its responsiveness to particular
socio-economic conditions. By implication a technically advanced legal system,
such as a European one, could successfully be applied anywhere else in the
world.[107]
(2)
Disillusionment and Marxist theory
Even by the end of the Decade of Development it was apparent that the
grand experiment to transform the developing world was not working. The
assurance ‘, of the theorists faltered, and in what became a general crisis of
academic confidence, open dissatisfaction with orthodox scholarship began to
emerge. In anthropology, functionalist empiricism was found inadequate to
contend with the rapid changes taking place in Africa.[108]
Economists were at a loss to explain the increasing poverty of what was now
branded the ‘Third World’. Similarly, when the western-inspired legislative
programmes of the new states failed to find acceptance with the majority of the
population, the myopic vision of positivism was found wanting.
The failure of the legal transplants stimulated a new trend in research,
still mainly functionalist in orientation, to discover the
reasons.[109]
Much of this work demonstrated a need to overcome the barriers that had
compartmentalized the academic disciplines. These divisions were quite
arbitrary, stemming from an unquestioned tradition of western universities.
Little had been achieved in the past by the narrow view each discipline had of
its area of study, and interdisciplinary co-operation was now much in vogue.[110]
Such research could hardly he expected to yield conclusive results, but it did
at least establish that the effect of imposing alien law is unpredictable[111]
and that neglect of local attitudes will skew statutory objectives.[112]
One of the main targets for criticism was the empirical
approach that had been so characteristic of anthropology in the colonial
period. The challenge came first in the 1960s with the work of Levi-Strauss,
the progenitor of structuralism. Levi-Strauss disputed the main premise of
empiricism: that information may be validly trained only by sense perception or
observation. In terms of a structuralist perspective the explanatory value of
raw data must be rejected; meaning can be deduced only from the occurrence of
the data within an overall and necessarily transparent structure. This theory
borrowed heavily from linguistics. The physical manifestation of
language-words-is meaningful only within the framework of the whole language,
especially its grammar. Hence, when the particular term is seen in the context
of the larger structure, meaning can emerge.[113]This
meant that the focus of attention had to move from the conscious/perceptible to
the unconscious/abstract. It followed that a field-worker’s observations of
society were of little value until related to a broader explanatory structure.
It was Marxism, however, that offered the most comprehensive answers to
the questions that arose out of the crisis of the social sciences.[114]
By adopting a definite point of view, one aligned with the African peasantry
and the nascent urban proletariat, Marxism actively contested the impartiality
of functionalism; but of course it would also have denied the possibility of
ever achieving functionalism’s vaunted claim of objectivity through empirical
observation. (Here Marxism revealed common ground with structuralism. Information
is not gained Solely by sense perception; logical deduction is an equally valid
way of understanding the world.)
The distinctive theory of social change contained in Marxism also offered
an attractive explanation of the changes sweeping Africa.[115]
According to the Marxist’ model (unlike its functionalist counterpart), society
was inherently unstable. In the primordial form, economic production was
communal; when worker were alienated from what they produced and subjected to
the production process, class divisions appeared. The conflict latent in
class/state society and the contradictions that inevitably surfaced between the
forces and relations of production were continually resolving themselves in a
dialectical process’.
Until the 1960s Marxism had had little serious appeal for anthropology
outside the Soviet Union. Whereas Marx’s work was concentrated on capitalist
society, anthropologists were normally interested in simpler societies, lacking
the of state and apparently also lacking a class structure. Marx, however,
sited five main historical eras - Asiatic, ancient, feudal, capitalist and
socialist-each taking its character from a particular mode of production. This
concept became the keystone of neo-Marxist anthropology in the 1960s and 70s.[116]
As the mode of production changed, so did the non-productive structure of
society, including its law, religion and politics. The kinship -the cement of
simple societies-was a problematic factor. Theoretically it should have been a
superstructural element but it was difficult to demonstrate how the economic
base determined kinship; rather it seemed that kinship determined the economy.
‘The appearance of
a creative, non-dogmatic Marxism, owing much to the work of Althusser, overcame
certain of these conceptual barriers.[117]
Althusser and his associates offered a new reading of Marx, synthesizing many
intellectual ends in France, notably structuralism. Most importantly he refined
the conception of the mode of production (which had never been clearly defined
by Marx) and rejected the outright economic determinism associated with earlier
Marxist work.[118]
This fresh conceptual apparatus opened up new avenues of exploration for
anthropology.[119]
The mode of production was no longer tied to capitalism : as a heuristic
device it could be used for the investigation of African societies,[120]
and new modes (village/lineage, tributary and communal) were devised to
illuminate particular situations.[121]
The persistence of indigenous economies and social structures within a
capitalist-dominated colonial state[122]
could be explained by positing the articulation of two or more modes of
production with one another.[123]
Thus, although the problems of kinship and class remained unresolved, the
French anthropologists of the 1960s and 70s made possible a new understanding
of African societies.[124]
(3)
Dependency theory
Among
the first beneficiaries of the revival in theoretical Marxism was the group of
writers that has come to be known as the dependency theorists.[125]
They sought to explain the poverty of the developing countries not as a result
of stubborn traditionalism (the general view of liberal economists), but as a
continuance of colonial exploitation. The demands of international capitalism
caused a drain on the resources of the developing countries, forcing them into
a position of dependency on First World nations.[126]
The model used to signify this relationship was the ‘centre-periphery’:[127]
the world economic system, centred in Europe and North America, incorporated
the territories of the former colonies - the periphery - and continued to exploit
them. Previously, states in the periphery had been politically bound to Europe,
but even after decolonization they remained economically dependent, a notion
captured in the terms ‘neo-colonialism’ or ‘underdevelopment’.[128]
Social
relations within the periphery are often explained by use of the same
centre-periphery model: the metropolis, dominated by export interests and the
(cultural influence of the West, functions as centre to the backward and
conservative areas of the rural periphery. The developing state suffers all the
problems caused by extreme inequalities. The productive, export-oriented
enclave of the metropolis is modern and technologically advanced; productivity
is high and most amenities are concentrated here. Western values connected with
work, family life and civic duty predominate. The lives of the population in
the remainder of the country, however, are prescribed by a subsistence economy.
This imbalance results in a persistent rural-urban migration, the main
attraction being the higher income available in the cities.[129]
The inequalities typifying developing countries are signified in the term
‘internal colonialism’, which connotes the economic and political subordination
of the indigenous population by a people originating in or affiliated to the
capitalist West.[130]
The effect of this theory has been to redirect scholarly objectives and
to reformulate research methods. The gathering of empirical data is now only
one aspect of the field-worker’s task; as important is relating this data to
the structure underlying the observable world. This suggests an expansion of
the boundaries of the unit of study, in both time and space.
‘The lives peasants lead in Zinacantan
or rural India, the lives of urban squatters in the favelas of Rio de Janeiro,
can be understood only in terms of their place in a scheme of things we cannot
see simply by participating as ethnographers in these communities. If we
landless untouchables working in virtual bondage for an Indian landlord, we
need not simply find out about their social organization and kinship and
religion; we need to find out and why their fathers and grandfathers lost their
land, how the landlord’s wealth was created and how it is sustained. We need to
follow the circles of interconnection out in space, and back in time, until
they join us to the history of a British past as well as an Indian to the
political economy of wealth and class as well as caste. Life in an Indian
village or on a landlord’s estate is inseparably linked to events in Bombay and
Delhi, and ultimately to events in New York and London and Tokyo.’[131]
At least two comprehensive accounts
of customary law were shaped by such a global perspective: Fitzpatrick Law
and State in Papua New Guinea (1980) and Snyder Capitalism and Legal
Change (1981).[132]
In both of them customary law was studied in the context of a social
formation in which the dominant capitalist modes interacted with one or more
autochthonous modes of production. Customary law, a facet of the indigenous
modes of production, was embedded in the precapitalist way of life. Yet, at the
same time, it had been extracted and transformed by colonial (and
post-colonial) courts to serve policies dictated by the interests of world
capitalism. The authors had to explain both the persistence of precapitalist
institutions and the changes they underwent. They reasoned that these
institutions functioned as a social security system providing a base of support
for workers in the capitalist enclave, both in order to subsidize low wags and
to provide refuge in times of unemployment, sickness or old age;[133]
aside from which, the promotion of traditional social and political structures
inhibited the consolidation of a working class.[134]
(4)
An ‘invented tradition’
The Marxist theorists who devoted their
attention to law in western European states were interested mainly in its
ideological function, a concern that followed from the position of law as a
superstructural element. As first conceived, ideology was thought somewhat
simplistically to be a distortion of reality, an illusion perpetuated by the
ruling class. This understanding changed radically after the work of Gramsci.
He showed that class domination resulted as much from the consensus of the
dominated as from their physical repression;[135]
and institutions such as law, education and the media sustained existing social
relations by winning general acceptance - the notion of ideological hegemony.[136]
As further developed, the notion of ideology came to mean less of an illusion
and more of a representation of reality. Thus the world of the oppressed, a
world in which they lived and which they took for granted, was constructed for
them. It determined their choices because it had predisposed them to think in
certain ways.
|
|
Customary law
was one such ideological construct. State courts were supposed to be applying
‘the law of the people’, a law inherited from the founding fathers of the
African tribes. A critical examination of this assumption revealed that much
customary law was in fact the creation of the colonial courts.[137]Although
this law had no authentic ancestry, it functioned to legitimate state control
of the people.[138]
The notion of tradition offered a sense of continuity with the past
to a people whose lives had been disrupted by colonial conquest. This was a
past that could be moulded and interpreted in ways consonant with state
policies. For both colonial, and for many modern African governments,[139]
tradition is vital for the preservation of a compliant population and existing
social structures.
[12] ROBERTS (1984) 28
JOURNAL OFAFRICAN LAW 1-5
The very label “African Customary Law”
has a flavour of the 1950sand 60s about it, recalling that new and exciting
area of study which Allott marked out single handed and then enthusiastically
encouraged others to join him in developing. The assumption was then that we
were dealing with a living, specifically African repertoire of norms and
procedures which could be put to work in helping to shape some African
“future”. Since then the nature and provenance of this repertoire and the
merits of that ambition have been the subject of a lively re-examination....
The profitable
continuation of that discussion requires that we are clear about the range of
meanings which “African customary law” may carry. My own, subjective,
marking-out of the field would be along the following lines. Much writing about
African customary law takes for granted that a base-line can be located in
terms of the normative commitments which different groups of Africans
entertained, and of the governmental arrangements to which those Africans were
subject, prior to European contact and penetration. So one conceivable focus of
attention must be upon ascertaining the truth about the pre-colonial African
“past”. Second, we may think in terms of the survival, transformation or
displacement of those commitments and governmental forms during the colonial
period. What were the normative commitments of Africans and what were the
government realities, under colonial rule? Third, there was that “customary
law”, arguably a very different phenomenon, which was “applied” in the system
of courts established in the colonial period, and which had a life in
legislation, governmental reports, and in the heads of expatriate administrators
and Africans caught up in “indirect rule”. The relationships between these
second and third meanings is certainly complex and problematic; I come back
that. Fourth, there was that “customary law” which was retrieved and written
down, sometimes by Africans themselves (e.g. Sarbah in Ghana, Matthews in
Botswana), but more often by European observers, typically anthropologists and
lawyers. Then there is that “customary law” which “survives” today, which forms
part of the lifeworld of contemporary Africans. Last, and arguably different
yet again, is the law which is presently administered in “local”, “traditional”
or “customary” courts, or in tribunals of “popular justice”. While there
may be links between these phenomena, there are at the least important differences
between them and it is crucial to be clear which we have in mind when we speak
of “customary law”.
In trying to
elucidate these different meanings, I begin with the African “past”. The truth
lies that we know sadly little about the governmental arrangements prevailing
in different regions of Africa prior to the colonial period, and less still
about the cognitive and norm normative “maps” which Africans entertained. Most
of this is now, of course, irrecoverable. But what little survives, how
far can we now generalise along the grand lines confidently attempted by Maine,
Marx, Tönnies, Durkheim and Weber? All of these scholars seems to have held
recognisably similar conceptions of “traditional” societies. These were
essentially kin-based groups, in which “order” was a matter of compliance with
shared repertoire of norms, and in which the “individual” actor was rather more
submerged in the community than was his European counterpart in the second half
of the nineteenth century. But the differences are important. For Maine, Marx
and Weber, this was a history of government; for Durkheim and perhaps Tönnies
too, it was more a history of different forms of solidarity, and a story of
“order” rather than “domination”. There are differences too as to how far they
were talking of external constraint, as against internal commitment; about
conscious compliance with rule, as against the habitual and the automatic. For
all five, the “past” was also a construct, a largely unexamined foil against
which the more interesting “present” could be brought into sharp focus. The
past was not being looked to for its own sake. These exercises, while in part
constituting attempts to isolate the definitive qualities of traditional as
against modern societies, also revealed the varied forms of “solidarity” and
“domination” which any society might exhibit.
Overall, the result is that our
inheritance of preconceptions about “custom” and “tradition” from these classical
theorists is something of a jumble. We link custom with the past, and yet it is
still with us. We see traditional solidarity in terms of unthinking, habitual
routine and of attentive compliance with rule. “Tribal” societies may be
stable acephalous groups or groups ruled by despotic patriarchs. Customary law
represents at once an affair of norms and affair of government. Behind all
this, there is the transition from the said and the remembered to the written
record, from an oral to a literate culture.
What of all this
seems correct today? First, the undisputed shift from an oral to a literate
culture - a transition which is still in progress. Clearly, this was important
- but how important? In what ways does literacy make people think differently about
their world; in what ways does the availability of writing and print make a
difference to government? These questions are widely debated, but there is not
yet general agreement as to how they should be answered. What is amply clear,
however, is that lower level courts in Africa, and else here in the third
world, today provide a unique meeting point of cultures, and the mod s of
discourse found in them deserve detailed study.
Many African “societies” of the
pre-colonial period certainly were small, kin-based groups in which most
relationships tended to be multiplex. But no generic label such as “archaic”,
“tribal” or “traditional” could hope to bear the load imposed by the very
diverse forms of social and political organisation now known to have been present
in pre-colonial Africa. The presence of tiny, fiercely egalitarian nomadic
bands, as well as large centralised kingdoms, indicates that Maine was
incorrect to see the history of society” as the history of “government”.
Similarly, even in the narrow sphere of the normative we now know that there
was wide variation; that the clarity and detail in which commitments were
articulated and the manner in which they were treated varied considerably.
Again, these
classical theorists all lived in the pre-Malinowskian world. Even if we regard
Malinowski as guilty of exaggeration, a vision of mechanical solidarity, of
unrelenting normative constraint, can never be reimposed on non-western
societies. The implications of reciprocal obligation, of interdependence, were
just as important as they are today, even if in some cases specialisation was
far less pronounced. However different cognitive and normative maps may have
been drawn, people in pre-colonial Africa actively navigated their ways around
their worlds, just as people do today.
One other aspect of the overall picture
has now come to be revised. On the whole, the classic vision of a customary
order was of a rather static condition, a long-standing equilibrium, in which
the rate of change was slow, probably scarcely perceptible to those involved.
Africa in the nineteenth century does not fit such a picture. In many areas,
the period prior to European penetration was characterised by upheaval,
migration and war .... So, however we see the establishment: of European rule,
it was not superimposed upon existing conditions of tranquil continuity.
When we come to consider the fate of
African communities under colonial rule, radically different views of what
happened are now available. In general, older accounts offer a picture of order
and continuity, later ones of abrupt transformation. The earlier view bowed
colonial rule being imposed upon a stable egalitarian consensus. Life in most
encapsulated communities was said to have altered little: at first, because the
colonial power lacked the resources to bring about rapid, ameliorating change;
later, because survival and continuity of “traditional” life was deliberately
fostered under the policies of “indirect rule”.
Present accounts ... tend to contradict
this picture sharply. The revision tells a story of discontinuities, abrupt
transition and coercive domination, which left members of encapsulated
communities exposed to the arbitrary rule of neo-traditional authorities and
drawn to their disadvantage into new forms of economic relations. Colonial
local government is presented as having scanty links with the past: authorities
had to be ‘found” and placed in charge of formerly acephalous groups; or, at
best, holders of existing office were made to perform roles quite different to
their accustomed ones. The “customary law” which was recognised in colonial
legislation, and developed and ‘‘ applied” in the newly established “native”
courts was a tendentious montage with slender links to the past, supportive of
the project of colonial rule, and entrenching the position of elders over
juniors, men over women. It has even been given by some the vivid label of an
“invented tradition”.
Overall, this revision is a valuable
one, a necessary antidote to earlier accounts which had postulated a
deceptively harmonious and egalitarian pre-colonial context, and which had
over-emphasised the extent to which long-standing indigenous institutions had
been here in the first place and then survived. There is no doubt, either, of
the coercive nature of “indirect rule”, or about the disruption of the lives of
Africans through their association, often involuntary, with European economic
operations.
Nevertheless,
the new picture is still arguably an incomplete one, and care must now be taken
to avoid distortions of an opposite kind to those present in earlier
sentimental accounts. There are real difficulties in seeing “customary law”
solely in terms of domination. Similarly there are problems in seeing it as
being of entirely recent manufacture. Lastly, there must be doubts as to how
far “colonial customary law” was successfully transmitted to, and assimilated
in, the lifeworlds of most Africans.
First, while the extent and nature of
colonial domination needed to be revealed in view of the degree of consensus
implied in earlier writings about customary law, “domination” cannot be allowed
to appear as the total account. Even if we freely concede the coercive nature
of local government in the colonial period, and the ideological quality of what
passed for “customary law”, an exclusively one-way, top-down view of the
colonial encounter must mislead. There is no need to repeat here the now
well-articulated and generally accepted worries about placing too literal a
reliance upon a conception of “sovereign” power. “Power” resides at different
levels, takes on diverse forms, and runs in all directions. So, while
“customary law” in the sense of the repertoire of rules applied in the colonial
courts did provide an instrument of rule, it also offered avenues of
escape and resistance for the ruled. Similarly, “customary law” in the
different sense of the meanings and commitments which furnished the lifeworlds
of Africans, while subject to covert penetration and co-option, also provided
the means of qualified autonomy.
The insistence of scholars like
Chanock, Snyder and Ranger that “customary law” is of recent manufacture, a
creature of the colonial period rather than the pre-colonial past, is helpful
in a number of ways. It is essential that we be prepared to recognise the
relationship between contemporary and past forms as at the very least
problematic. Also the association between “custom” and a supposedly egalitarian
context must be questioned. Further, the specific idea of “invention” restores
and ensures prominence for a conception of agency, the essential notion that
custom is linked to the goings on of living men and women, that it is both at
the root of action and the product of it. But there are difficulties in
pressing this view of customary law too far. In the first place, it risks
conflating two separate, if interlinked, spheres; the “customary law” of the
colonial and post-colonial courts, and that which furnishes the everyday
lifeworld of Africans. Second, the flavour of novelty, the clean break, which
“invention” carries, draws attention away from crucial aspects of what seems to
me to be happening. The very strength of customary law, the source of its
supposedly coercive power, lies in the links it can claim with a past,
established, approved state of affairs. Foreign novelties do not lay claim
through existing commitments; yet that is what custom does if it does anything.
So rather than novelty we should be looking for the exploitation of an existing
repertoire, or the artificial sustaining of ancient forms, with detrimental,
constraining effects upon the ruled.
The idea of the invented tradition seems
to me to imply an impoverished and grossly simplistic understanding of the
operation of ideology. It calls up a vision of the manufacture, transmission
and assimilation, intact, of some new world view, and the corresponding
destruction of existing cognitive and normative foundations of the lifeworld.
Much more persuasive is an account of ideology as working with what is already
to hand, covertly upon and within an existing lifeworld, transforming without
eradicating.... But even here we must not neglect the very significant extent
to which some cultures are resistant to transformation through co-option.
Empirical observations reveal wide and interesting variations in the response
of encapsulated groups to the experience of colonial rule.
Nowadays people
are more sceptical ofthe provenance and authenticity of customary law
they find in official legal texts.[140]
The modern legal order is now y acknowledged to be a pluralistic one, a series
of interrelated normative spheres.[141]
It includes the formal legal code, containing a written version of customary
law,[142]
and of course the common law, both of which are regularly applied in the
official courts and in the state bureaucracy. Then there is a version of
customary law that has been recorded by anthropologists and lawyers. This is
used in more informal contexts and for teaching purposes. And finally there is
the customary law that is actually lived out by the people and applied in
various traditional and informal tribunals.[143]These
legal orders are not unconnected, nor should it be assumed that the people
concerned are unaware of how to manipulate the resources offered them by legal
pluralism.[144]
[1] [1919] AC 211 at 233
– 4.
[2] Allot New Essays 12
– 13.
[3] See below, [30]
[4] See, eg, Evans-Pritchard
The Nuer 6
[5] Hund & Van der
Merwe Legal Ideology and Politics in South Africa 27-9.
[6] Mainly in order to
accommodate Public International law: Kelsen The Pure Theory of Law 225,
228 and 320-8.
[7] The Concept of
Law 89-98.
[8] See Below, 21
ff.
[9] See Seidman (1983)
32 ICLQ 871 for an application of Hart’s theory.
[10] Friedman Law
and Society 21.
[11] In its turn,
occupational specialization is symptomatic of increased social
complexity. This of course was Durkheim’s thesis: The Division of
Labour in Society (1893).
[12] Allot (1977) 21 JAL
5.
[13] See below, 141.
[14] The procedure
involves application of Hart’s secondary rules. Bohannan Law and
Warfare 45ff terms this a process of ‘reinstitutionalization’.
[15] See Bohannan 212
and Alliot in Ife University Integration of Customary Law 74ff; Woodman
in Allott & Woodman People’s Law and State Law 157-8.
[16] Cf Hamnett Social
Anthropology and Law 3-4.
[17] A term coined in
1886 by the German scholar Post; see Adam (1934) 16 J Comp Leg 216.
[18] See the work of a
modern evolutionist: Diamond Primitive Law, Past and Present.
[19] Chanock Law,
Custom and Social Order 74.
[20] See Trubek 1972 Wisconsin
LR 721.
[21] See Rheinstein Max
Weber on Law in Economy and Society xlviii.
[22] Morris (1958) 107 Univ
Pennsylvania LR 141; Trubek op cit 724.
[23] In other words,
the claim that authorities can make to have their commands obeyed or to justify
their exercise of power. See Rheinstein op cit n21 336-7 and Trubek op
cit n20 731-9.
[24] Either generically
determined facts or legal concepts provide cues for the application of the
rules.
[25] It also underlies
the dichotomy between law and custom. See further below, 41ff.
[26] Despite evidence
to the contrary, such as Schaper’s Tribal legislation among the Tswana.
[27] Hartland Primitive
Law 2, 5 and 8.
[28] Op cit 10.
[29] Op cit 58.
[30] Kuper (1980) 21 European
J Sociology 14ff
[31] Collected Legal
Papers 173.
[32] (1899) 12 Harvard
LR 444. And see Llewellyn (1931) 44 Harvard LR 122. Twining
(1972-3) 7 Law & Soc R 561 describes on of the early examples of
interdisciplinary collaboration, that of Llewellyn and Hoebel.
[33] Op cit 20.
The definition of law was correspondingly less significant. More important was
the concept of the court, because law could be defined only with reference to
the rules regularly enforced by a court: Hoebel the Law of Primitive Man 37.
[34] The Cheyenne
Way 20-9 and Twinning (1968) 31 MLR 165.
[35] Comaroff &
Roberts Rules and Processes 5ff.
[36] See eg, Myburgh Papers
on Indigenous Law. This also draws heavily on the tradition
[37] Allot and Cotran
in Ife University op cit n 15 26-7 and 33-6 respectively. And see: Twinnin
(1963) 1 J Mod Afr Studies 221.
[38] See Allot (1953) 5
J Afr Admin 172; cf Poulter (1975) 2 JSAS 181.
[39] See, eg, Hoebel op
cit n33 28 and Pospisil Anthropology of Law 39-96.
[40] Hoebel op cit n33
29; see further Abel (1969) 17 Am J Comp L 573-82; Roberts (1971) 3 Botswana
Notes & Records 12-15.
[41] Hoebel op cit n33
37; Llewellyn & Hoebel op cit n34 23. See further: Poulter (1975) 2 JSAS
181; Allott loc cit n38 and Abel op cit 573. Schapera (1943) 1 Afr Studies 27
esp 40 had independently made the same discovery. He worked with the written
case records of chiefs’ courts in Botswana.
[42] For criticisms of
the case-study approach see: Gluckman (1972-3) 7 Law & Soc R 611 and
Politics, law and Ritual235-42; and Holleman (1973) 7 Law & Soc R
585. Other complementary methods are discussed in Lucham Law and
Social Enquiry.
[43] Gluckman in
Epstein The Craft of Social Anthropology xv; Gulliver in Nader Law in
Culture and Society 17-19.
[44] Roberts Order
and Dispute is an example.
[45] Which is usually
opposed to the rule-centred paradigm. See Comaroff & Roberts op cit
n35 5ff and Hund op cit n36 31ff.
[46] See Moore Law
as Process 220
[47] Comaroff &
Roberts op cit n35 12.
[48] Gulliver Social
Control in an African Society 297.
[49] Gulliver op cit
298; Moore op cit n46 181ff; Gulliver in Nader op cit n43 11-13.
[50] Cf Kaplan &
Manners Culture Theory 55ff.
[51] See below, 19-20.
[52] Cf Driberg (1928)
1 Africa 65 and (1934) 16 J Comp Leg 231.
[53] Van Doone (1981)
21 Cahiers d’Études Africaines 480-1. This article is based
on a provocative study by Gluckman Analysis of a Social Situation in Modern
Zululand that documented the opening of a bridge in Zululand, an even
which, despite the notional hostility of the two racial groups involved, was
marked by harmony and co-operation. Van Boorne suggests that in actual
situations social constructs such as race and culture are less relevant than
would theoretically be expected.
[54] Kuper Anthropology
and Anthropologists 99ff; cf Gluckman in Fortes & Patterson Studies
in African Social Anthropology 21ff.
[55] Primitive Culture
v1 1.
[56] See Myburgh Anthropology
for Southern Africa 30-4. And further see below, 152-3.
[57] Sharp (1985) 44 Afr
Studies 65ff.
[58] Sawer Law in
Society 27ff
[59] And so too is
Hart’s theory of law: Fallers Law without Precedent 14.
[60] Cf Allen Law in
the Making 92ff.
[61] Smith in Kuper
& Kuper African Law 26-7 and Bohannan op cit n14 50ff.
[62] See Austin and
Hart above, 3-4.
[63] See below, 54,
[20].
[64] Sansom in Hammond-Tooke
Bantu-speaking Peoples 262-3. the belief that the chiefdom was the
natural political unit of pre- (and indeed post-) conquest southern Africa is
now being questioned, in light of historical and archaeological evidence to the
contrary. See Hall The Changing Past 74ff.
[65] Handbooks on
tribal law, such as Whitfield (1948), were regularly produced to meet the
requirements of the colonial administration. See Hund & Van der Merwe op
cit n5 36-7.
[66] Van Warmelo in
Hammond-Tooke op cit n64 59ff.
[67] The
Zulu People (1949).
[68] Maylam A
History of the African People of South Africa 23; Marks in Thompson African
Societies in Southern I Africa 126ff.
[69] Skalnik in
Boonzaier & Sharp South African Keywords 74-5.
[70] Hammond-Tooke op
cit n64 xv; Mafeje (1971) 9 J Mod Afr Studies 253; Gulliver Tradition
and Transition in East Africa 7-35; and Vail The Creation of Tribalism
in Southern Africa
[71] Section 5 of the
Black Administration Act 38 of 1927 and ss 2 and 3 of the Black Authorities Act
68 of 1951. See generally Skalnik in Boonzaier & Sharp op cit n69 68ff.
[72] Brookes The Colour
Problems of South Africa 137.
[73] 27 of 1913. This
was welcomed by the white population as the only solution to the ‘native
problem’: House of Assembly Debates 1913 col 2515. See Pelzer Verwoerd
Speaks XXX-XXXI
[74] 18 of 1936
[75] Act 12 of 1936.
[76] When apartheid was
formally introduced, the Black Authorities Act 68 of 1951 was passed. This
established a three-tier hierarchy of government, based on chiefs and their
councillors.
[77] 46 of 1959.
[78] Cf Kenney Architect
of Apartheid 157; West in Boonzaier & Sharp op cit n69 106.
[79] Helgaard Muller r Address
to the General Assembly of the UN 1964.
[80] Gordon (1989) 2 J
Historical Sociology 43ff.
[81] Nadel The
Foundations of Social Anthropology 40
[82] The semiotic
triangle graphically depicts the relationship between words/terms (physically
manifested in sound or writing), concepts (intellectually conceived in
the abstract) and the referents (the concrete existence of the latter
two in reality); cf Jackson Semiotics and Legal Theory 14-17.
[83] Such as ownership.
See below, 384-5.
[84] Whorf Language,
Thought and Reality 213-14. See generally Ardener Social Anthropology
and Language
[85] Justice and
Judgment among the Tiv 101 and 210-14.
[86] The Ideas in
Barotse Jurisprudence xxiv and 254ff; Moore op cit n46 ch4
[87] Social
Anthropology 46.
[88] Op cit 11-12.
[89] Gluckman op cit
n86 xiv.
[90] In respect of land
tenure: in Anderson Family Law in Asia and Africa 121ff.
[91] Goodrich (1983) 3 Legal
Studies 1 has explanations.
[92] Ben Bennett 1985 AJ
173. On the problem of developing Swahili as a national legal language
see: Weston (1965) 1 East African LJ 60ff. And on the selection of a
national language in Nigeria see: Allan (1978-9) 18 Cahiers d’Etudes
Africaines 397. See generally on language and dispute processing: Danet
(1979-80) 14 Law & Soc R 445.
[93] Vansina Oral
Tradition 76.
[94] See below, 54-5
and 75-6.
[95] The gender of the
informant is usually male, which obviously influences the information given.
See below, 305
[96] Vansina op tit n93
76.
[97] Clifford &
Marcus Writing Culture 2 and 22.
[98] Twining The
Place of Customary Law in the National Legal Systems of East Africa 32.
[99] Writing is often a
reaction to a popular demand for greater availability of the law (viz the
Twelve Tables of Roman law) and thus a restraint on the arbitrary exercise of
power; but writing creates the need for specialist interpreters, and
historically it is true that as soon as law has been written down a professional
class emerges to interpret it to the people: Goodrich Reading the Law 21
[100] J Goody Interface
between the Written and the Oral ch 11.
[101] See Schiller
(1969) 5 E African LJ 88 regarding the ambiguous position of customary
law. Galanter in Weiner Modernization 153 lists the requirements of a
‘modern’ legal system. Münkner (1983) 4 Jahrbuch Afrikanisches Recht 99
describes ‘development law’.
[102] Van Rouveroy van
Nieuwaal (1979) 12 Verfassung u Recht 143; Seidman in Hutchinson Africa
and Law 9.
[103] David 1962 Annales
Africaines 161 and (1962-3) 37 Tulane LR 188-9.
[104] Allott The Limits
of Law 176-7 and 182ff.
[105] Nkrumah (1962) 6
JAL 103ff; M’Beye (1970) 22 Rev Int Droit Comparé 38.
[106] Friedman op cit
n10 46 and (1969) 24 Rutgers LR 29; Scandinavian Institute of African
Studies Law I and Development 16; Ocran (1971-2) 3/4 Zambia LJ 23.
[107] Allot op cit
n104 109; Seidman (1975) 5 Zambia LJ 39. And see generally: Trubek
(1972) 82 Yale LJ 1.
[108] Kaplan &
Manners op cit n50 ch 5. Magubane (1973) 75 Am Anthropologist 1701 gives
a critique of South African scholarship.
[109] Although the
future for such scholarship is bleak: Ghai (1987) 50 MLR 750.
[110] Cf Merryman
(1977) 25 Am J Comp L 457.
[111] See, e g,
Harrell-Bond (1975) 8 Verfassung u Recht 447 and Kidder in Burman &
Harrell-Bond The Imposition of Law 292. More generally see: Allott op
cit n104 ch 4. For the explanation of compliance with imposed law see:
Lloyd-Bostock and Aubert in Burman & Harrell-Bond op cit 10ff and 27ff
respectively; Massell (1968) 2 Law & Soc R 179 and Friedman (1969)
24 Rutgers LR 48.
[112] Könz (1969) 63 Proceedings
of American Soc of Int Law 94; Baxi (1979) 12 Verfassung u Recht 97;
Kurczewski & Podgorecki (1975) 1 Kroniek van Afrika 3.
[113] Levi- Strauss Structural
Anthropology 33.
[114] Copans in
Gutkind & Waterman African Social Studies 24-7.
[115] This theory was
inspired by the nineteenth-century anthropologist, Morgan: Bloch Marxism and
Anthropology 8ff; Terray Marxism and ‘Primitive’ Societies 5ff.
[116] It designates
the forces (natural resources, labour power and technology peculiar to a
society) and the relations of production (social relationships
regulating the distribution of property and power).
[117] See Kahn &
Llobera Anthropology of Pre-Capitalist Societies 274-7; Bloch op cit
n115 152-7.
[118] At the most,
Althusser allowed that the economic structure would determine ‘in the last
resort’.
[119] See Copans &
Seddon in Relations of Production 1ff, and to a lesser extent, law:
Newman Law and Economic Organization.
[120] And here
Meillassoux Anthropologie économique des Gouro (1964) was a forerunner.
[121] Hindess &
Hirst Precapitalist Modes of Production.
[122] Wolpe
‘Introduction’ in The Articulation of Modes of Production.
[123] See Terray op
cit n115 93ff.
[124] Copans &
Seddon op cit n119 36ff and Bloch op cit n115 162-4.
[125] See Synder
(1980) 14 Law & Soc R 724.
[126] Leys Underdevelopment
in Kenya 8ff and 26-7.
[127] Wallerstein The
Modern World-System ch 6.
[128] Leys op cit n126
ch 1; Palmer & Parsons Roots of Rural Poverty 4 and 13.
[129] See below,
151ff.
[130] Wolpe op cit
n122 and see Wolpe in Oxaal et al Beyond the Sociology of Development ch
11.
[131] Keesing Cultural
Anthropology 458.
[132] And see
Fitzpatrick and Snyder in Allott & Woodman op cit n15 249ff and 262ff
respectively.
[133] Meillassoux
(1972) 1 Economy & Society 102.
[134] Fitzpatrick Law
and State in Papua New Guinea 247-8. And see below, 114-115 and
151-2.
[135] Hall et al in
Centre for Contemporary Cultural Studies On Ideology 45ff.
[136] Althuser made a
further major contribution to the understanding of ideology; see McLennan in
Centre for Contemporary Cultural Studies op cit 77ff. And, for an
application of his views to customary law, see: Suttner (1985) 11 Social
Dynamics 49-64.
[137] Synder in Summer
Crime, Justice and Underdevelopment 90ff and (1981) 19 J Legal
Pluralism 49.
[138] See, eg, Burman
(1979) 12 Verfassung u Recht 129 and Gordon & Meggit Law and
Order in the New Guinea Highlands 206-9.
[139] See Chanock
(1978) 16 African L Studies 80ff.
[140] See Gordon op
cit n80 41ff.
[141] Allott &
Woodman op cit n45 2.
[142] See Woodman in
Morse & Woodman Indigenous Law and the State 181ff regarding
[143] Sanders (1987)
20 CILSA 405ff.
[144] Roberts (1981) 2
Jahrbuch Afrikanisches Recht 99