Law and the Study of Sub-Saharan Africa

by

Kristin Mann, Richard Roberts

• LAST REVIEWED: 26 February 2020
• LAST MODIFIED: 26 February 2020
• DOI: 10.1093/obo/9780199846733-0214

Introduction

In all societies, law together with social norms act to maintain the social order by creating rules and expectations about human interactions and exchanges. Changes, however, do occur. Debates about the content and meaning of social norms and about the law, legal statuses, and legal rights and expectations in African societies predated colonialism, were accelerated by the colonial encounter, and persist to this day. The long history of human contact and social and cultural change on the continent introduced new ideas and practices for resolving disputes both between members of different groups and within groups, often yielding forms of legal pluralism. Pluralistic legal thought, institutions, and practices were shaped by the spread of Islam in Africa from the 8th century and the arrival Europeans from the 15th century. Recent research on legal pluralism underscores the need to focus not only on the establishment of formal legal institutions, but also on how litigants used the multiple arenas created by overlapping systems of dispute settlement. The most useful way to think about legal pluralism is as a form of encounter between dynamic, local processes of change in indigenous societies that predated colonial conquest and continued after it and dynamic and changing forms of European colonialism. Identifying African norms, enshrined as custom, and producing customary law were essential strategies of colonial rule based on legal traditions associated with the establishment of protectorates, which separated, in principle, external and internal sovereignties. African customary law constituted a foundation of internal sovereignties associated with various forms of indirect rule. In all cases, however, African customary law was subject to colonial interventions when particular customs were considered detrimental to European assumptions about “civilization” and good governance. Metropolitan legal traditions also influenced the practice of law in colonial societies. It is important to distinguish common law as applied in colonies influenced by British practice and the civil law tradition applied in those influenced by legal systems of continental European colonial powers. South Africa forms an anomaly in that its legal system developed from a Roman-Dutch legal inheritance, a superimposed British colonial practice, and constructed African customs. Although North Africa experienced many of the same pressures from colonialism and decolonization as sub-Saharan Africa, this article does not engage fully with this region. We recognize that this is a significant gap that has colonial and postcolonial geopolitical roots and look forward to future research that better integrates these subregions. The end of colonialism accelerated the processes of legal change as independent nations both incorporated colonial law into their independent judiciaries and revised colonial-era laws to reflect changing regional and international ideas regarding human rights. Significant legal debates persist in many parts of Africa regarding gender equality, Muslim family law, criminal law, and human rights enshrined in international law.

General Overviews

Debates about the meaning of the law, legal statuses, and rights predated colonialism, were accelerated by the colonial encounter, and persist to this day. The history of human contact and social and cultural change before, during, and after the colonial period have introduced new ideas and practices for resolving disputes both between members of different groups and within groups, as demonstrated in Benton 2002. Such interaction commonly produced forms of legal pluralism that were shaped in Africa by the spread of Islam from the 8th century as well as the arrival of Europeans from the 15th century. Recent research on legal pluralism, such as that in Merry 1988, underscores the need to focus not only on the establishment of formal legal institutions, but also on how litigants used the multiple arenas created by overlapping systems of dispute settlement. Such overlapping systems of dispute settlement yielded various forms of legal pluralism that, as argued in Mann and Roberts 1991, changed over time. Identifying African customs and producing customary law were essential strategies of colonial rule based on legal traditions associated with the establishment of protectorates, which separated, in principle, external and internal sovereignties, as examined in Kamanda 1961. African customary law was viewed by colonial rulers as the foundation of internal sovereignties associated with various forms of indirect rule, articulated classically in Lugard 1922 for Northern Nigeria and illustrated in Buell 1928 in other contexts. In all cases, African customary law was subject to colonial interventions when such customs were considered detrimental to European assumptions of good governance and “civilization.” Metropolitan legal traditions also influenced the practice of law in colonial societies, as is shown in the sections devoted to colonial Africa. The end of colonialism at once accelerated processes of legal change as independent nations incorporated colonial law into their independent judiciaries, as shown in Allott 1962, and reified regimes of institutional segregation and ethnic differentiation enshrined in customary law and indirect rule, as demonstrated in Mamdani 1996. Significant legal debates persist in many parts of Africa regarding gender equality and Muslim family and criminal law along with other human rights enshrined in international law, as illustrated in Burrill, et al. 2010 and Bunting, et al. 2016. Among the most recent state-of-the-field assessments is Waller 2018.

• Allott, Antony N., ed. Judicial and Legal Systems in Africa. London, Butterworths, 1962.

  On the eve of decolonization, this volume emerged from a conference at the School of Oriental and African Studies at the University of London on the “Future of African Law,” where surveys of the law in British colonies, High Commission territories, and early postcolonial countries are presented.

• Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. New York: Cambridge University Press, 2002.

  Using the lens of the long-term changes in colonial legal institutions, the author explores the interrelation of local, indigenous legal practices and changing imperial actors, demonstrating how plural legal orders changed from the multicentric law of early empires to the state-centered law of the colonial and postcolonial world.

• Buell, Raymond Leslie. The Native Problem in Africa. 2 vols. New York: Macmillan, 1928.

  A useful survey of colonial rule, including colonial legal systems, focusing on South Africa, French and British colonies, and Liberia, conducted in the mid-1920s.

• Bunting, Annie, Benjamin Lawrance, and Richard Roberts, eds. Marriage by Force? Contestation over Consent and Coercion in Africa. Athens, OH: Ohio University Press, 2016.

  An important volume that brings together legal experts, anthropologists, historians, and practitioners to examine the history and contemporary manifestations of coercion and consent in marriage, especially in light of recent international human rights debates regarding forced marriages.

• Burrill, Emily, Richard Roberts, and Elizabeth Thornberry, eds. Domestic Violence and the Law in Colonial and Postcolonial Africa. Athens, OH: Ohio University Press, 2010.

  Based on a conference held at Stanford University in 2008, the chapters in this book explore the range of domestic violence in the colonial past and postcolonial present and bring into conversation historical, anthropological, legal, and activist perspectives on domestic violence in Africa.

• Hay, Margaret Jean, and Marcia Wright, eds. African Women and the Law: Historical Perspectives. Boston: Boston University Press, 1982.

  A pathbreaking study of African women and colonial law based on a conference held at Columbia University in 1979.

• Kamanda, Alfred M. A Study of the Legal Status of Protectorates in Public International Law. Ambilly-Annemasse, France: Les Presses de Savoie, 1961.

  Written by a Sierra Leonean scholar, this text presents a major investigation of the legal substance of the protectorate, a territorial status imposed widely by colonial powers in Africa.

• Lugard, Lord F. J. D. The Dual Mandate in Tropical Africa. Edinburgh: William Blackwood and Sons, 1922.

  Foundational text of British colonial rule and native policy that enshrined the practices of indirect rule, including the handling of disputes among Africans by native courts presided over by African authorities but supervised by British colonial officials.

• Mamdani, Mahmood. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton, NJ: Princeton University Press, 1996.

  An influential text that probes the role of thought and policy about customary law and native authority in the regime of institutional segregation and ethnic differentiation at the heart of the colonial project in Africa. Explores their legacy for the structure of power and the shape of resistance in contemporary Africa.

• Mann, Kristin, and Richard L. Roberts, eds. Law in Colonial Africa. Portsmouth, NH: Heinemann, 1991.

  Based on a conference held at Stanford University in April 1988, this volume revitalized the study of law and colonialism in Africa.

• Merry, Sally Engle. “Legal Pluralism.” Law and Society Review 22.5 (1988): 869–896.

  DOI: 10.2307/3053638

  A useful introduction to the concept of legal pluralism, which has shaped the study of law and society relations from early-20th-century anthropological research in colonial societies to present-day investigations of postcolonial and advanced industrial societies. The author helpfully defines terms, explores interactions among different normative orders, and discusses encounters between plural legalities and local knowledge.

• Waller, Richard. “Legal History and Historiography in Colonial Sub-Saharan Africa.” In Oxford Research Encyclopedias in African History. New York: Oxford University, 2018.

  An excellent survey of the state of the field that introduces the reader to the major historiographical debates and methodological challenges in using legal sources. Available online by subscription.