Customary Law in Theory

T W Bennett

A Sourcebook of African Customary Law for Southern Africa

T W Bennett

assisted by

N S Peart

 

Juta & Co, Ltd

CAPE TOWN                WETTON                JOHANNESBURG

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 Southern Rhodesia[1] the Privy Council patronizingly remarked:

‘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 Africa was rooted in part in the perception of Colonial Office lawyers of the function of law in society. That perception stemmed largely from the then dominant jurisprudential theory, analytical positivism. Theories that purport to explain the world inevitably become the rationale for policy.... Analytical positivism arose to guide investigations within the legal framework of nineteenth-century England. It became, however, the philosophical guide for structuring the legal order of tropical Africa.

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, Austin’s major affirmation was nonsense. As an intellectual construct, it matched all the demands made upon the lawyer. It explained to him why he directed his attention not to how the rules worked in society, but to the rules as guides to judicial decisions. The legal order became not a normative system ordering social life, but the rules of the litigation game. Positivism directed the lawyer’s attention towards what Austin called the Province of jurisprudence, and away from the Province of Legislation. Analytical positivism pretended that the corpus of the law was a gapless web. If a gap appeared, one could deduce from legal materials and logic alone, what the law covering the supposed gap had to be. Analytical positivism therefore directed attention to the internal elegance and logical consistency of the rules, not to the relative desirability of the behaviour the rules prescribed. If its internal elegance and consistency, rather than its consequences for society, defines good law, then good law in one time and place must be equally good in other times and places.

The Colonial Office imposed English law on Africa without considering what sort of society the new law would mould.... British lawyers imposed the law they knew, and therefore, the law they believed to be “good”. In fact, the reception statutes facilitated imperial exploitation of Africa....

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 Africa, however, not out of deep laid plots by imperialists intent on Africa’s exploitation, but out of the pervasive insularity of analytical positivism. Nevertheless, English law in Africa as in England nicely served the interests of British entrepreneurs, now at the expense of African peasants. Where necessary to advance English interests, the colonial power readily changed it; but the fact that English law in its larger outlines remained largely unchanged down to independence demonstrates its effectiveness in serving English rather than African concerns.

Analytical positivism, although powerfully challenged, remained the dominant jurisprudence for practising lawyers in independent Africa. It remained concerned with legal elegance, not legal content. When drafting a new law, African lawyers and their expatriate advisers all but invariably copied the laws of the former metropole.

Notes

l. D M Trukek 1972 Wis LR 730.

2. Trubek op cit 736.

3. J Austin Province of Jurisprudence Determined v1 101ff

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 Austin’s simple pronouncement was decisive: law was a rule laid down by a sovereign or political superior. If the acephalous societies of Africa did not fit the political model implied, then it followed that they had no law.[4] This so-called ‘Austinian handicap’ stigmatized customary law as a lesser normative order, and gave lawyers an excuse to abandon it to missionaries and anthropologists.

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 Ghana and Nigeria.

[143] Sanders (1987) 20 CILSA 405ff.

[144] Roberts (1981) 2 Jahrbuch Afrikanisches Recht 99