The Nature of African Customary Law

EVERY human society is at once static and dynamic. In its relative dependence on its environment it has to be tenacious of the tried and accepted ways of life; but the restless quest of the human mind for adaptation to changing social conditions is irrepressible. When the old standards no longer fit the new demands of existence, the process of adjustment may assume one of two forms: either (a) a workable compromise is found between the old and the new, or (b) there is a complete breakdown of the existing order. Disintegration only sets in, however, where the rate of environmental change outstrips the society's capacity for adaptation.

The whole course of English legal history shows how often the rigid rules of the Common law, in spite of their being much tempered down by the flexible principles of Equity in a number of ways, have had to be stretched and adapted to new circumstances by the introduction of legal fictions. These have been employed not only in changing the substantive rules of law but also in evolving the rules of procedure.

Other enlightened legal systems have had to make similar use of fictions as a means of effecting necessary adjustments in legal rules. The African legal systems are no exception. It is indeed true to say that many African social as well as legal categories are notional rather than exact. Thus, an African calls a distant and sometimes unrelated head of a village group a 'father' and his remote cousins are just 'brothers'. It is not until one appreciates that he actually uses these terms on the grounds of politeness and in the interests of group solidarity that one discovers that when the proper occasion arises he does emphatically differentiate between the sociological and the physiological fraternity of the one and the like paternity of the other. One may say that in some ways the whole tissue of his language is figurative,

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