The Nature of African Customary Law

By T. Olawale Elias | Go to book overview

CHAPTER VII
DISTINCTION BETWEEN CIVIL AND CRIMINAL LAW

A. DENIAL OF THE DISTINCTION IN AFRICAN LAW

THE assertion has often been made by writers on African law, at least by those of the older generation, that no distinction is ever made therein between civil and criminal wrongs as commonly conceived in 'European' law.1 The usual evidence cited in support is that offences like murder and theft, which are clearly criminal offences according to English law, are generally treated by many African societies as matters for private redress by the wronged party or group rather than by the State as the custodian of public safety and welfare. Now, while there is some truth in this way of thinking, it is certainly not wholly accurate.

Several factors appear to be responsible for the inadequacy of the prevailing analysis, and mention may be made of, inter alia, these important ones: (a) the great influence of Sir Henry Maine's writings; (b) the tendency on the part of these writers on African law to forget, or perhaps to be unaware of, the historical evolution of the distinction made in modern English law; (c) the common disposition to argue as if the classification of offences into criminal and civil were clear-cut and free from difficulties in European legal systems or even within the content of English law itself; and (d) the all too ready desire to assume that African law in general must, by the very fact of being African, be irreconcilably different from English, indeed European, law.

Let us begin, then, with Maine. It will be recalled that he it was who first drew attention in his Ancient Law to what he regarded as the strange preponderance of criminal over civil law in 'ancient' (identified for this purpose with African) law. Maine

____________________
1
We have used the term 'European' law here in its popular opposition to African law, particularly because even Continental writers on African law are in the habit of freely indulging the fancy that their own systems of law are at one with the Anglo-American systems in this matter. In the pages that follow we shall attempt to demonstrate the error of this assumption.

-110-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
The Nature of African Customary Law
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
/ 318

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.