Legal Pluralism in Malawi: Historical Development 1858–1970 and Emerging Issues by Franz von Benda‐Beckmann
| Published date | 01 March 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00797_3.x |
| Author | Simon Roberts |
| Date | 01 March 2010 |
Franz vonBenda-Beckmann, LegalPluralisminMalawi:HistoricalDevelopment
1858^1970 and Emerging Issues,Zomba: Kachere Monographs, 2007, 199 pp,
pb $20.00.
Over the last thirty years of the 20
th
century a scarcely quali¢ed viewof law as state
lawgave wayto much more expansive formulations, as the social world became con-
ventionally conceptualised as constituted by multiple, interpenetrating ‘legalities’.
Law somehow came to be seen as ‘everywhere’, even as co-extensive with the social
and thus present in social aggregationsfrom the simplest to the most complex.Much
of this transition took place under the self-consc iouslyadopted banner of ‘legal plur-
alism’, advanced in the 1970s and 1980s as an explicit critique of ‘legal centralism’. So
we have to think of legal pluralism both as identifying a pivotalmovement in late 20
th
century legal scholarship and as awayof conceptualising social space.
The label‘legal pluralism’seems to appear ¢rst in Franz vonBenda-Beckmann’s
Rechtspluralismus in Malawi (Weltforum Verlag, Munich, 1970) and rapidly came
into common use. This foundational work of a great European scholar, unbelie-
vably remaining without an English translation until now, traces the historical
development of an integrated legal system in one small African country. In doing
so, Benda-Beckmann inaugurated, modestly and without fuss, what has now
become the conventional way of looking at the legal world: we are all legal plur-
alists now.
ThelandareathathasbecomeMalawiwas¢rstvisitedbyDavidLivingstonein
1858; and by the 1860s a continuous missionary presence was established, long
before the declarationof a Britis h Protectorate under RoyalInstr uctionswas issued
at theend of July1891.In formal terms, the arrangements establishedfor Nyasaland
^ as for other territories under colonial rule - were straightforward, and their nat-
ure largely uncontested. Under them, the institutions of centralised government
were imposed, in the form of overarching, territorially based legal orders. These
were founded on the metropolitan law of whichever happened to be the colonial
power concerned - Belgium, Britain, France, Germany, Italy, Holland or Portugal.
In the case of Britain, the nation state had grownup piecemeal over a verylong
historical period. It was assumed by the mid 18
th
century that English settlers
would take with them as much of the common law of England as local circum-
stances permitted, and this principle is explicitly statedin Blackstone’sCommentaries
in the 1760s. But the position was only formalised late in the 19
th
century, notably
in the writings of Dicey, when explicit articluation was demanded both for the
purposes of justi¢cation at home and for reproduction abroad, for export.This
late exercise of theorisation was necessitated because our actual arrangements ^
in contrast withthose of continental Europe - were seen to be incoherent as vehi-
cles for modernity.
The general procedure whereby a colony was annexed or a protectorate
declared was for Letters Patent or an Order in Council to be issued in London.
That is what happened in Nyasaland under the British Central Africa Order in
Council of 1902, where through the imagination and re-construction of the
metropolitan legal order, a corresponding colonial legal order was brought into
being.This involved: the demarcation of a territory; the appointment of a local
administrative power; the accord of legislative authority; the constitution of a
Reviews
341
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(2) 331^348
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