Week 7 - African legal culture Flashcards
(26 cards)
African legal culture is influenced by a variety of legal traditions, such as European legal culture, Islamic legal culture and traditional African legal culture. What is the most distinctive characteristic of African legal culture?
The most distinctive characteristic of African legal culture, is legal pluralism.
How can a situation of legal pluralism be described the best?
Legal pluralism refers to a situation where multiple legal systems or frameworks coexist within a particular geographic area or among a specific group of people.
This can include a variety of influences, such as state laws, religious laws and customary laws.
Because of this, individuals in a legally pluralistic society, may be subject to different legal authorities or systems depending on a variety of factors, such as ethnicity, religion or community affiliation.
Legal pluralism is also seen in different parts of the world. Name three examples of legal pluralism.
- Indigenous legal systems in Scandinavia. Traditional laws are recognized alongside national laws.
- Regional atonomy in Spain. Regions like Catalonia have their own legal rules for language and education, alongside national laws.
- European Union law and national law. Member states follow both EU law and their own national laws.
In the 19th century, what is know as ‘the scramble for Africa’, took place. What is this?
Starting the 15th century, colonialism started in Africa. This intensified greatly in the 19th century. The colonization of Africa in the 19th century is also called the Scramble for Africa. The colonization left a big influence on Africa.
Colonialism had some negative influences on Africa. Name the bad influences.
- Economic exploitation. Colonial powers exploited African natural resources without adequate compensation for local people.
- Forced labor. This led to widespread suffering and loss of life.
- Social disruption. Colonialism disrupted traditional African societies and cultural practices.
- Political subjugation. Colonial powers imposed their own legal systems on African societies, exploiting local divisions and installing authoritarian regimes to maintain control.
- Underdevelopment. Colonial powers prioritized resource extraction and infrastructure development, leaving many parts of Africa underdeveloped.
- Cultural suppression. Colonial authorities suppressed indigenous African cultures and languages, imposing European norms and languages.
- Health impacts. Colonialism introduced diseases like smallpox and measles, devastating indigenous populations with little immunity.
The French and English influences were predominant in Africa, due to their colonial heritage. What is a substantive difference between English territories and French territories?
In French territories, French law applied, only to the extent that it had been expressly made applicable by decree.
Under British rule, the emphasis was more on indirect administration, in which natives governed their own affairs by their own law, while a different legal regime applied to non-natives.
After independence, did the African countries impose their old legal systems?
For practical reasons, the basic outlines and often even the details of the law which had applied until independence were preserved for practical reasons.
Sunni Islam is the most widespread religion in Africa. How does Islamic law apply in the African countries?
The mere presence of Islam does not necessarily imply the application of Islamic law. The application of Islamic law varies: from full implementation of Sharia law, to laws influenced by Islamic thought or even non-application of Sharia law.
How does Islamic law return in the judicial system in Nigeria?
In Nigeria, Islamic law applies in northern areas, while it plays hardly any role in southern areas.
When parties involved are muslims Islamic law applies in court regarding personal status matters, such as marriage. Islamic law applies in some other disputes, if the parties involved agree to its application.
The government has established Islamic courts. These handle cases related to Islamic law alongside traditional law.
In sub-Saharan Africa, traditional law continues to play a significant role in regulating daily life. It is essential for maintaining order and resolving disputes. Which types of traditional African law do we know?
- Official customary law. This is influenced by the state and written down.
- Living customary law. This is applied autonomously by traditional actors.
What role does state law have regarding living customary law?
State law can change living customary law by writing it down or allowing state institutions like courts to apply it. When this happens, the law becomes official customary law. According to some commentators, when the living customary law is written down, it is part of state law.
Does customary law apply next to Islamic law?
Generally, there is a separation to be seen between Islamic and traditional law. In some cases, there is a mixture between the two.
How is traditional law passed down in Africa?
Traditional law in Africa is passed down orally, from one generation to the next.
Because of this, traditional norms are created and maintained. However, while some norms have a long history, the traditional law is also flexible and adaptable.
There are different views on the impact of orality in traditional law. What are these views?
- Some people believe that because of its orality, traditional law leaves no place for complex norms and structures, since human memory limits on how complex any content may be.
- Others describe traditional law as a complex system of norm. This complexity is the result of the different degrees of binding power which norms can have and the different legal consequences.
Traditional law does incur forms of inequality. For instance, traditional law affects relations between older and younger members of the community. Explain this.
African communities are generally divided into two types of communities:
1. Leaderless communities, which do not have a supreme leadership institution.
2. Centralized communities, which do have a supreme leadership institution.
Frequently, power to apply the law is reserved only to a council of elder men. So, older members have more power then younger ones.
Also, women have a weaker legal position than men almost everywhere in Africa.
In African traditional law, the focus is on the process of conciliation. What does this mean?
Rather than focussing on following a strict set of rules, the focus is set on resolving disputes. When a dispute arises, the decision-makers prioritize finding a solution that both parties can agree on. This is known as conciliation.
This emphasis on harmony reflects the importance of maintaining social relationships within the community.
What do decision-makers do when a dispute cannot be resolved with conciliation?
When a dispute cannot be solved with conciliation, the decision-makers simply decide the issue and make a judgement which can just as well result in a win for one party and loss for the other.
How dit colonial rulers react to traditional law?
- Some rejected is based on cultural differences.
- Paternalism. Some viewed traditional systems as inferior and in need of guidance.
- Straightforward pragmatism. Colonial powers recognized the usefulness of traditional law in governing local populations.
How did the British and the French react to traditional law?
The English system of indirect administration, tended to grant more leeway to native law and to governing structures than the French colonial system, which emphasized assimilation.
The French and the British strove to influence traditional law in accordance with their views. Give an example of how they exerted influence.
One example of a method of exerting influence were the repugnancy clauses. These clauses said that traditional law would not be permitted to violate justice and morality, or the principles of public policy or natural justice. It served to eliminate all traditional law which conflicted with the moral sentiments and basic legal ideas of the colonial rulers.
Independence did not initially see an enhancement of the status of traditional law, but rather a loss. At the outset, new African states stressed national unity and the idea of modernity. This led to two approaches to traditional law during decolonization. What were these approaches?
- Some countries (mostly Francophone states) rejected traditional law, favoring their own legal systems. They took no notice whatever of traditional law.
- Some countries (Anglophone states mostly) recognized traditional law as an independent legal system alongside state law, seeing the state as a plural entitie.
In recent times, traditional law has enjoyed a renaissance. Why has this happend?
This was partly sparkes by the end of apartheid in South Africa and has been fueled by academic interest. Traditional law is now given more importance and is seen as a valuable aspect of cultural and legal heritage.
In some states, is has been granted equal footing with state law.
What does the African concept of imbizo refer to?
The African concept imbizo term refers to a meeting of all adults in a community to discuss relevant questions and to reach decisions. Traditionally, meetings usually involve only men, and a strict hierarchy based on age is observed.
The concept of imbizo is used to answer the potential objection that participatory democracy is a purely Western construct, and to instead paint it as a part of the African mindset and tradition.
What is a concern about imbizo in relation to democracy?
Mere participation and the chance to express one’s opinion during a decision-making process is much less than a genuine democratic right to influence decisions.
