ERROR JURISDICTION IN NATIVE COURTS
| Author | P. C. Hodgson |
| Published date | 01 July 1955 |
| DOI | http://doi.org/10.1002/j.1099-162X.1955.tb00101.x |
| Date | 01 July 1955 |
ERROR
JURISDICTION
IN
NATIVE
COURTS
131
the
life of a society despite great social changes. The development of reason-
ableness for such positions as
the
reasonable husband,
the
reasonable wife,
the
reasonable landlord
and
tenant
and
king
and
subject, enables
the
law to cope
with change.
Without
this
the
law would ossify.
This is well illustrated by a Barotse divorce
suit-The
Case of
the
Prudish
Wife. Here
the
wife sued for divorce on several grounds.
First
she com-
plained
that
when she was ill her husband did
not
treat
her
at
his home, as
required by law,
but
took her to her parents.
The
husband replied
that
he
obtained to
treat
her a medicine which
had
to be inserted in cuts on her
body;
but
he could
not
give her
the
medicine himself as she would
not
let him see
her
naked (astonishment in court). Then drums
had
to be beaten for her
treatment
and
this could
not
be done in his village which was inhabited by converts to
Jehovah's
Witnesses who do
not
allow drumming. So he took her to her
mother.
The
judges held
that
in
the
circumstances of
the
wife's unique
prudery,
and
in
the
new situation created by
the
coming of
the
Jehovah's
Witnesses, areasonable husband could only
take
her to her mother. She
claimed divorce secondly because her husband before going to work
at
a
distant
place took from her some blankets, which he
then
used with a new
wife-thus
breaking
the
law which forbids aBarotse to confuse his relations with two wives.
The court found
that
her
husband
had
given
her
eight blankets (a new form of
goods),
that
this was wealth by the
standards
of Barotse poverty,
and
that
he could therefore reasonably
take
back two blankets for himself on a new
type
of
journey-and
then use them with
another
wife. He was a reasonable
husband
and
her plea for divorce was rejected. Thus in fact
many
cases are
decisions
about
whether a
perlOon
has been a reasonable husband, or
other
incumbent of a particular social position,
by
modern standards.
In this way Barotse judges are constantly re-drafting
the
scope of reasonable
standards for spouses, kinsfolk, lords
and
underlings, so as to handle new
conditions of life. Judicial decision supplements legislation. Through
the
,reasonable
standards'
they
maintain
their
traditional laws
and
traditional
morals,
and
yet
cope with
the
effects of
the
introduction of Christianity
and
schools, labour for whites
and
money
and
trade-goods, new skills, changes in
every aspect of Barotse life. Hence it seems to me
that
it is in
the
study
of
the reasonable man, in every society,
that
anthropologists
and
lawyers can
~eet.
In him social principles
and
prejudices, customs
and
habits, group
Interests and individual experiences, are absorbed, to relate
the
fixed rules of
law to the changingvariety of life.
But
the
law aims at justice,
and
the idea of a
reasonable man implies an upright man.
ERROR
JURISDICTION
IN NATIVE COURTS
by P. C. Hodgson, Chief
Assistant
Colonial Secretary,
Sierra Leone.
r
HE
Judicial Advisers' Conference held at Makerere in 1953 considered error
JUf)sdiction in native courts, by which is
meant
the
machinery whereby mis-
takes are corrected chieflv as a side-issue of
the
question whether or
not
these
COurts
should form
part
of an integrated or of a parallel system of jUdicature.
Thhe
subject is, however, of considerable intrinsic interest to officers who are
C.arged with
the
supervision of these courts
and
it is
thought
that
afuller
dIscussion
than
appeared in
the
report of
the
conference
may
be of interest.
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