The Nature of African Customary Law

By T. Olawale Elias | Go to book overview

CHAPTER III
COMMON ERRORS ABOUT AFRICAN LAW

THERE have been various views as to the nature of African customary law or even as to whether such law really exists. It may accordingly be useful to consider briefly the evidence for the conflicting opinions on the subject before we come to analyse the general theory of the nature and function of law in human society, together with the problem of the relation of African to other types of law. We will for the sake of convenience classify and examine the four principal schools of thought as follows: (1) The Missionary's; (2) The Administrative Officer's; (3) The Social Anthropologist's; and (4) The Judicial Official's.


1. The Missionary

The missionaries, especially those of the older generation,1 are accustomed to regard African law and custom as merely detestable aspects of 'paganism' which it is their duty to wipe out in the name of Christian civilisation. This attitude no doubt arises out of the conscious or unconscious identification of law with religion, and, in particular, of Christianity with Western civilisation. In so far as African culture is thus looked upon as an undifferentiated mass of customs, rituals and inhuman practices,2 there is little that could be said for its recognition as part of the social order. African customary law must be bad for the new religious dispensation and ought for that very reason to be abolished holus bolus.

Sir T. Morison, formerly a District Officer in Kenya, once wrote : 3

' I soon found myself struggling with graver questions of policy,

____________________
1
For there are notable exceptions like Dr. E. W. Smith, who by long sojourn in Africa and by deep study of Africans, has acquired an unusual grasp of, and due respect for, their laws and customs.
2
It will be remembered that Sir Henry Maine initiated this fallacy of attributing law, morality and religion to a common origin. Later jurists, notably Dr. A. S. Diamond in his Primitive Law (pp. 49-53), have disproved Maine's theory and shown that law has more often than not been independent of religion or morality.
3
In an article entitled 'The Wachaga of Kilimanjaro' in Jnl. Roy. Afr. Soc., Vol. 32, No. 127, April, 1933, pp. 141-2.

-25-

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