DISTINCTION BETWEEN CIVIL AND CRIMINAL 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____________________