THE FUTURE OF CUSTOMARY LAW IN AFRICA
| Author | Arthur Phillips |
| DOI | http://doi.org/10.1002/j.1099-162X.1955.tb00106.x |
| Published date | 01 October 1955 |
| Date | 01 October 1955 |
THE
FUTURE
OF CUSTOMARY LAW IN AFRICA
THE
FUTURE
OF CUSTOMARY LAW IN AFRICA
By Arthur Phillips
151
PART
I
IT has long been
the
settled practice, where British administration has corne
to be established overseas, to give recognition to any body of law already
existing in
the
country concerned. Change of sovereignty by conquest or
cession has
not
ipso facto been held to involve any general change of law.
Where
the
existing system of law was a
mature
system (such as Roman-
Dutch law in South Africa), it continued, in accordance with a clearly defined
constitutional principle, to operate as
the
general law of
the
land, except in
so far as it might be altered by legislation.
In
the case of
the
customary law
of tribal communities
the
matter
does
not
seem to have been governed by any
recognized constitutional principle. This kind of law lacked the uniformity
and the developed character necessary for a general lex loci, applicable to a
complex modern society-especially asociety of mixed racial composition.
Hence it resulted
that
in most of
the
British dependencies in Africa
the
need
for a general lex loci was
met
by the introduction of English
law-consisting
Usually, in the first instance of "
the
common law,
the
doctrines of equity, and
the
statutes
of general
application"
in force in England at the prescribed date,
but
subject to modification, alteration and extension by specific imperial or
colonial legislation.
This introduction of English law was by no means inconsistent with
the
~ontinued
operation, within certain limits, of
the
customary law of each
llldigenous community. In fact, it seems
that
from
the
outset
the
British
authorities almost invariably permitted
the
continuance in force of such
customary laws. I say
'permitted'
rather
than
'encouraged'
because
there is evidence
that
in some instances
the
early administrators
and
judges
tended to regard
the
recognition of customary law as a temporary expedient.
It
soon became apparent, however,
that
customary law was
not
likely to be
quickly superseded; and the existence of numerous
'personal'
laws, side
by side with
the
general law, carne to be accepted as a normal
and
more or less
permanent feature of
the
legal system in such territories.
For
the
present
purpose it is relevant to observe
that
this position was the outcome of practical
considerations of expediency
rather
than
of apriori reasoning; and although
the principle of respect for indigenous institutions was for a time reinforced
by
the
prevailing orthodoxy of Indirect Rule, the
attitude
of British colonial
governments to African customary law continued to be largely empirical.
It
is
fair to
add
that
in recent years there has been an increase of interest in
the
SUbject, with much resulting thought
and
discussion; nevertheless, ideas
as to the future of customary law are still very
fluid-and
perhaps inevitably
and rightly so.
The formal
statutory
provision whereby courts in a particular territory
are
empowered to administer African customary law in appropriate cases will be
fOund to contain certain conditions of limitation. These conditions relate,
first, to the substance of
the
law itself,
and
secondly to
the
range of its applica-
bon-i.e.
the
classes of persons
and
the
situations to which
it
is applicable.
The relevant position in Kenya
may
be taken as a typical
example:
"In
all
cases civil
and
criminal to which natives are parties, every court
...
shall be
~ded
by
the
native law so far as it is applicable
and
is
not
repugnant to
Justice
and
morality or inconsistent with
any
Order in Council or Ordinance
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