The Nature of African Customary Law

By T. Olawale Elias | Go to book overview

CHAPTER II
THE NATURE OF AFRICAN SOCIETIES

LAW and politics are closely allied sciences, and it would be convenient to describe briefly, in the present chapter, African political organisations as a necessary preliminary to the subsequent enquiries into the nature of African laws and customs. Bound up with this interdependence of law and politics are the wider problems of legal philosophy such as (i) the great issue as to whether law precedes the State in order of priority or vice versa, (ii) the question whether law is the command of the political sovereign of a particular community of people, and (iii) the argument as to whether the legal rights of the individual are derived from the State, or whether the individual has no rights at all apart from the duties imposed upon him by the State. As we shall have occasion later to examine these and other issues, it is not intended to enter upon them here. What we are more immediately concerned with is the delineation of the various types of African societies and of such features of these as are vital to our understanding of the subtle workings of the various customary rules and conventions.

It is not to be expected that, amidst such a diversity of peoples and in such a considerable land area as the African Continent, any uniform and invariable pattern of society should exist. The African peoples are, as much by the accident of history as by numerous geographical handicaps, at varying degrees of political, cultural, and economic development. Since law is inevitably interlocked with all these phases of social life, it naturally manifests itself in different ways and conditions and so we sometimes get variation of details, if not of essentials, as we pass from one society to another.

But, in spite of this diversity, we have to bear in mind the strong evidence of general similarities which writers who have studied Africa at first hand, and appreciatively, have vouchsafed to us. Writing on Nigeria, Dr. C. K. Meek, for example, observed: 'It is clear that throughout Africa most kingdoms were modelled on the same principle. The Jukun state is of the same pattern as

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