There are many discussions surrounding the 'role of custom in Africa'. "The word 'custom'… encompasses not only those practices whose origins and justifications are derived from religious doctrine, but also those rooted in cultural tradition" (Poulter, 1986: 3). In Africa, there were customs that were not 'originally' regulated or enforced by law. These were 'long-standing' conventional practises, usually fortified by religious beliefs or social traditions. These customs seemed to form the basis of a 'self-enforced law' within Africa, which the community regarded as morally binding.
The positivist orientation in most of the Western legal scholarship on African laws reflects the narrow lego-centric and euro-centric approaches that are simply not adequate for a globally focused comparative legal analysis. From a positivist perspective, traditional African laws as non-state laws were not recognised as belonging to the field of legal studies. This follows from the same vein that Africans are primitive and hence, do not have proper laws and should 'modernise' out of their current situation.
Another Western view of Africans and their legal system was that they were assumed not to have the capacity for sophisticated thought, purely in the legal sense, and therefore, European legal observers failed to notice (and accept) the forms of law, as Africans recognised them. Many school traditions were used to thinking of Africans as not having a 'proper' form of law, some were even appalled by the current form of law that existed in Africa. Today, we find that scholars are more 'open-minded' and accepting in their views and approaches to African law.
However, this is just a small 'stepping-stone' before African law is accepted as a legal theory on a global scale, "as Africans anywhere in the world face continued devaluation of their traditional cultures and traditions, as well as almost total denial of the validity of their culture-specific legal norms and postulates" (Menski, 2000: 325). Whereas some allowances are often made with regard to Muslim law, in the name of religion; a comparative analysis shows that there are assumptions that Africans somehow do not have 'proper' religions either.
During the colonial periods, the British ruled through the existing chiefs or rulers within communities, in the societies where there was no ruler, the British appointed rulers. It was fair to say that there was a system of 'indirect rule' functioning. Due to the fact that 'customary law' in Africa was not regarded as having 'much weight' in terms of a legal standing. It was often 'superseded' by replacing it with a formal colonial system of law. This is similar to Chiba's 'unofficial law', such that it is not made by the state, but acknowledged by the state, in the sense that it is given official recognition as law.
However, this does not eliminate the existence of customary law that has become part of everyday African culture, but may not be accounted for in 'official customary law'. The state can, in these circumstances attempt to codify the customary law that they have access to or the customary law that they understand. The only customs they were allowed to remain and be codified were those that were consistent with the introduced written laws. However, there are limitations to 'codified' law, such as, the amount of customary law that will be retained, once it has been codified will only be 60-70%, as opposed to 100%.
As a result, we lose some of the authenticity of custom, along with its tradition and values. On 1st January 1900, English law was formally received in Africa, and the English court system was also put into practise. However, due to the pre-existing customary laws and codification of them, it was not possible to eliminate the 'African law' that was already in place. Therefore, a system of 'legal pluralism' was in action, where the English court system operated alongside the existing African court system.
English law is constantly under pressure to accept and interpret customary laws of different ethnicities and the easiest way for customary law to be accepted is by codifying it, so that it still exists but with an element of English law, which gives custom a more 'legal slant'. However, it has been known that English law, occasionally sees particular customs as out-dated, and so those customs are not codified. Some traditional customs that have been practised over a long period of time may not be fully understood by English law.
This is the case with Rastafarians, where dreadlocks are a fundamental feature of their religion; nevertheless, there are some people who do not recognise this as a form of customary law. There are some 'traditions' that are recognised and accepted by the state, such as those customs relating to marriage, this is a case, which is also similar in Hindu law. Even though the state accepts the African/Hindu marriage ceremony, they enforce 'a law' stating that in order for the marriage to be recognised legally, it must also be registered with the state.
This is an example of how the state has 'codified' the custom of marriage. Disputes arise when scholars presume that the customs that derive from African culture are not law at all, hence implying that Africa is a primitive state that does not have law. Therefore, they found that this was a sufficient reason for them to implement their own law and enforce it upon the Africans. However, the fact that many African customs are backed up by the force of long-standing tradition rather than religious precept or the power of a law enforcement agency does not lessen the strength of the duty to comply with them.
Islam, however, does not seem to draw any distinctions between religious and moral customs, on the one hand, and those that have the force of law, on the other. For Muslims, religion and law are two inseparable concepts. "Their 'sharia' or sacred law comprises not only laws enforceable by political authority but also morals, manners and obligations binding on the individual conscience alone" (Poulter, 1986: 4). It seems that custom is generally more important in and throughout Africa than it is in Islam.
This is most probably because African custom is the basis for the law that exists in Africa today. However, in Islam, their custom and in effect, law, is predominantly based on religion, therefore, rather than the importance of custom, Islam focuses on the importance of religion. Islamic law is based on its three main sources, primary, which are the written rules in the form of the 'Qur'an', secondary, where things are explained and fin ally, remote sources, these are the cultural and social norms and social norms which exist within a society.
'Al Shafi'i' shows how these three sources can be used to explains the four 'main' sources of law; 'Qur'an', this is god's word, which encompasses every aspect of daily life, including, dressing, washing, eating and marriage. The 'Qur'an' should not be mistaken for a 'book of legislation', it contains approximately 500 references to law, and is predominantly a book explaining the 'Islamic way of life' in god's words. The second 'main' source of law is the 'Sunna' of the Prophet, also known as 'hadith'. These are collections of stories of the Prophet's life.
"Just as Muslims turned to the Prophet for decisions during his lifetime, so after his death they looked to his example for guidance" (Esposito, 2001: 5). The 'Sunna' was basically the 'ideal' code of conduct. The pre-Islamic 'Sunna', was the early Arabic or Persian way of performing daily rituals, which has now become Islamic custom. These are both examples of primary sources, which are both indispensable for understanding the Muslim way of life. The 'Qur'an', for example, says 'you must pray', however it does not explain how to pray.
Therefore, one would turn to the 'hadith', which would explain in detail how to pray and cleanse before praying. The following two 'main' sources of law are secondary sources, as they have had human influence. 'Qiyas', the third source of law is reasoning by analogy. For example, s. 5 v. 91 was interpreted to mean that drinking alcohol is forbidden, excluding red fermented drinks, such as red wine. However, the 'Qiyas' decided that it made sense to include red wine in this section, as it was also alcohol.
The fourth source of law is 'Ijma'; this is the consensus of opinion, usually the opinion of jurists who were educated and male. "'Ijma' began as a natural process for solving problems and making decisions, depending upon the approval of majority opinion to insure against the fallibility of individual reasoning" (Esposito, 2001: 7). As we can see from the above examples, Islamic law has its fundamental roots in religion, hence, there is not as much importance given to custom here, as there is in African law.
I think it is evident from the above examples that custom is a vital part of most legal systems, and as a result it is also important globally. "Anthropologists and sociological jurists agree that it is almost impossible to ascertain the precise origin of custom. It is the high antiquity of the custom which gives it validity" (Diwan, 1978: 3). Custom is regarded as a remarkable concept, mainly because it was established many years ago, yet is still followed/ adhered to in much the same way today.
"It is now well recognised that in all early societies, custom has been not merely the main, but the only, vehicle of legal development" (Diwan, 1978: 8). In my opinion, different legal systems do play a critical role in shaping our perceptions of custom. We have established that custom is centrally important in African law, and although Islamic law derives mainly from religion, custom is still a vital element of its legal 'make-up'. Western influence has resulted in many scholars having a 'clouded' view with regard to custom.
This is because the western legal system is essentially a body of rules; it is not in any way influenced by custom. Therefore, when the British were confronted with the 'African legal system', which was based on custom and did not have any form of written laws; they came to the conclusion that Africa did not have any laws, mainly because they did not understand the value that Africans held for custom. They tried to codify the existing customs, which was a process that created an integrated system of law, where Africans and non-Africans adhered to the same laws.
The customs that remained were codified, and others were abolished altogether. The Western legal system is somewhat restrictive in terms of accepting other forms of law, especially when it come in forms that are not similar to the English legal system, as we have seen with Africa, custom and unwritten laws. Therefore, scholars with experience of the Western legal system will have a different, usually less 'open-minded' opinion, when it comes to accepting law in a global context.
However, legal scholars from other areas of the world are more likely to have a 'liberal' view, because their legal systems are influenced by legal systems across the globe, hence giving them a more 'global' view of law.
1. Ebo, Chukwuemeka (1995): 'Indigenous Law and Justice: some major concepts and practices'. In: Woodman, Gordon and A. O. Obilade (eds. ): African law and legal theory. Aldershot et al. : Dartmouth, pp. 33-42. 2. Esposito, John L. and Delong-Bas, Natana J. (2001): 'Women in Muslim Family Law'. 2nd Edition. New York: Syracuse University Press.